Judge: Anne Hwang, Case: 23STCV07773, Date: 2024-04-16 Tentative Ruling

Case Number: 23STCV07773    Hearing Date: April 16, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On April 7, 2023, Plaintiffs Angela Munoz Marquez, Aroldo Marquez, Aroldo Marquez, Jr., and Angela Munoz Marquez (“Plaintiffs”) filed a complaint against Defendants Chaiwat Namsangpa and Does 1 to 50 for alleged injuries sustained in a motor vehicle accident. Plaintiffs allege they were passengers in an Uber/Lyft vehicle being operated by Chaiwat Namsangpa. (Complaint ¶ 4.)

On July 24, 2023, Plaintiffs filed a proof of service of the summons and complaint on Defendant Chaiwat Namsangpa (“Defendant”) via substitute service. On August 28, 2023, Defendant filed an answer.

Defendant now moves for a protective order under Code of Civil Procedure section 2025.420 asking that Plaintiffs be precluded from seeking discovery responses until Defendant can be located. Defendant’s counsel argues Defendant’s whereabouts are unknown and reasonable efforts have been made to contact him. No opposition has been filed.  

LEGAL STANDARD

Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc. § 2025. 420(a).)

The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc. § 2025.420(b).)

Under Code of Civil Procedure section 2017.020, a court shall limit the scope of discovery if the court “determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” A “court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Id.)¿The “motion shall be accompanied by a meet and confer declaration.” (Id.) 

MEET AND CONFER

The declaration of Kendall Craver shows that she communicated with Plaintiffs’ counsel prior to bringing this motion. (Craver Decl. ¶ 12, Exh. E.) Therefore, the requirement has been met.

DISCUSSION

Defendant’s counsel (“Counsel”) argues that Plaintiffs served written discovery requests in October 2023 and multiple extensions have been granted. Counsel contends it is not certain whether Defendant is aware of this discovery and has not spoken to Defendant. (Craver Decl. ¶ 13.)  

Defendant relies on Brigante v. Huang (1993) 20 Cal.App.4th 1569 (disapproved of on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973), for granting relief from discovery responses where a responding party cannot be located. There, the court determined the trial court had discretion to grant appropriate relief for a defendant who was served request for admissions if: “(1) the court is satisfied that the defendant is not evading the lawsuit or the discovery demand; and is unaware of their pendency and (2) that reasonable efforts have been made and are ongoing to find her and apprise her of the litigation and the discovery obligations it entails.” (Brigante, supra, 20 Cal.App.4th at 1583.)

The Court in Brigante continued:

“It should be recognized that the trial court's discretion is not limited to ordering that the entire set of RFAs be deemed admitted or relieving the responding party from answering at all. The court is empowered to fashion a remedy that will do justice in the situation with which it is confronted. It may, for example, order that only some matters be deemed admitted. Or it may relieve the defense from admitting or denying the RFAs on condition that it demonstrate a continuing and vigorous effort to locate the defendant. Or it may grant a specific extension of time within which to find the defendant. And, if the court is not satisfied that the defense has made sufficient efforts to locate the defendant, and certainly if there is a basis to reasonably suspect that the defendant is aware of the litigation and obligations for discovery but is attempting to evade those obligations, the court would be well justified in denying relief.”

            (Id.)

Here, Defendant’s counsel (“Counsel”) declares that counsel was retained in May 2023 by Defendant’s insurance carrier to represent Defendant’s interests in this case. (Craver Decl. ¶ 4.) Once Defendant was served in July 2023, Counsel sent letters, made telephone calls, and retained a private investigator to locate Defendant. (Id. ¶ 6.) In August 2023, after believing counsel would connect with Defendant, the answer was filed. (Id. ¶ 7.) On October 6, 2023, Plaintiff propounded discovery on Defendant. (Id. ¶ 8.) In December 2023, Counsel was informed that the retained investigator was unsuccessful in locating Defendant. (Id. ¶ 10, Exh. D.)

Here, the facts described by Counsel and the declaration of Chris Haggard, the investigator retained to find Defendant, do not refute the possibility that Defendant could be avoiding this lawsuit. Moreover, there is no indication that reasonable efforts are ongoing to locate Defendant.

Accordingly, the Court does not find good cause to issue a blanket protective order shielding Defendant from all discovery responses. Having now appeared in the case, Defendant does not provide a basis to stop the litigation for an unspecified amount of time. Accordingly, the motion for a protective order is denied.

CONCLUSION AND ORDER 

Accordingly, Defendant’s motion for a protective order is DENIED.

Counsel for Defendant shall give notice and file a proof of service of such.