Judge Anne Hwang, Case Number: 23STCV16113, Date: 2024-10-02 Tentative Ruling

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.

On April 6, 2024, Plaintiff propounded Request for Production of Documents, Set One, on Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”). Defendant served responses on May 22, 2024. (Bahk Decl. ¶ 2-3, Exh. B.)

At an informal discovery conference (“IDC”) on August 2, 2024, Defendant represented that it would supplement responses. (Bahk Decl. ¶ 6.) Plaintiff contends that no code compliant responses have been served.

This motion was filed on August 27, 2024 and seeks to compel further responses to Request for Production of Documents, Set One.[1] Plaintiff seeks monetary sanctions. Defendant opposes and Plaintiff replies. In the reply, Plaintiff asserts that since filing this motion, Defendant has produced the crash video and certain documents. As a result, the only requests at issue are number 1 (personnel file), and number 15 (training materials).

The Declaration of Henry Bahk, Plaintiff’s counsel, shows that following the August 2, 2024 IDC, Plaintiff corresponded with Defendant regarding the issues in this motion. (Bahk Decl. ¶ 7-9.)

Code of Civil Procedure section 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:¿

(2) A representation of inability to comply is inadequate, incomplete, or evasive.¿

A response consisting of an objection must specify with particularly the document being objected to, and, if based on privilege, must provide sufficient factual information for other parties to evaluate the merits of this claim, including if necessary, a privilege log. (Code Civ. Proc. § 2031.240 (b), (c).)

The motion must set forth specific facts showing good cause for the discovery and include a meet and confer declaration. (Code Civ. Proc. § 2031.310(b).)

“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”¿ (Code Civ. Proc., § 2031.310(c).)¿¿¿

The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2031.310 (h).)

Plaintiff alleges that Defendant’s bus driver, Shamon Michael Todman (“Todman”), struck Plaintiff’s vehicle. Plaintiff alleges negligent hiring, training, and supervision within his general negligence cause of action against Defendant. (Complaint ¶ 12.)

Plaintiff seeks to compel Request for Production, Set One numbers 1 and 15 and argues the objections are without merit. Number 1 seeks “[t]he complete PERSONNEL FILE of Defendant driver Shamon Michael Todman (Badge No. 80577).”

Defendant objected that this request was vague, ambiguous, irrelevant, and asserted an official information privilege and right to privacy in personnel files.

Plaintiff argues this information is relevant to show the driver’s training, disciplinary history, or prior incidents of negligence, to show that Defendant did not properly train or discipline the driver.

In opposition, Defendant asserts this request was narrowed at the IDC for the complete disciplinary history of Todman. Defendant again argues this information is privileged and irrelevant.

“A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and either of the following apply:

(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state.

(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.”

Furthermore, “official information” under this section “means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” (Evid. Code § 1040(a).)

Defendant argues section 1040 prohibits the disclosure of confidential employee information. However, Defendant bears the burden to show facts that the privilege applies. (See Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363, 370.) Defendant filed a late declaration to its opposition on September 30, 2024, by Shonda Breland, its Director for Transportation Operations. In it, Ms. Breland declares the following: “The information contained in an LACMTA employee's disciplinary records is acquired in confidence by select employees of LACMTA charged with investigating incidents and making disciplinary decisions. The final disciplinary report is confidentially shared with the employee subject to discipline to afford them an opportunity to review the findings, submit any additional information, and request a hearing on the final disciplinary decision if desired. LACMTA's disciplinary records are not disclosed to the public. (Breland Decl. ¶ 3-5.) However, Defendant fails to show how the driving record of one driver, who is alleged to have been unfit to drive, would be against the public interest, particularly if a protective order governed the public disclosure of the records.

Additionally, though Defendant adds that it is admitting that Todman was acting within the scope of his employment with Defendant, it does not assert it stipulated to this admission, or otherwise made a binding admission to this fact. Therefore, Diaz v. Carcamo¿(2011) 51 Cal.4th 1148, does not establish that the records are not relevant.

Next, Defendant argues the right to privacy applies. “The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, § 1.) Protection of informational privacy is the provision's central concern. [Citation omitted.] In Hill, [the California Supreme Court] established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation omitted.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [citation omitted].” (Williams v. Superior Court (2017) 3 Cal.5th 531, 533 (citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.)¿¿¿¿

“[Prior] cases correctly recognize that when a discovery request seeks information implicating the constitutional right of privacy, to order discovery simply upon a showing that the Code of Civil Procedure section 2017.010 test for relevance has been met is an abuse of discretion. [Citation omitted.] But they also stand for the proposition that whenever discovery of facially private information is sought, the party seeking discovery must demonstrate a “ ‘compelling state interest’ ” [citation omitted] or “compelling need” [citation omitted]. Although in this they are not alone [citation omitted], they nevertheless are incorrect.” (Williams, supra, 3 Cal.5th at 556.) “To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., [citation omitted], they are disapproved.” (Id. at 557.)

“Only obvious invasions of interest fundamental to personal autonomy must be supported by a compelling interest.” (Williams, supra, 3 Cal.5th at 556.) When lesser interests are at stake, “the strength of the countervailing interest sufficient to warrant disclosure of private information var[ies] according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Id.)

The Court disagrees that Plaintiff has the burden to show a compelling interest in the disciplinary records, since Defendant has failed to show how the information is fundamental to personal autonomy. (Opp., 11.) Since Defendant fails to sufficiently discuss the three factors under Hill, it fails to show the privacy objection has merit. Moreover, any privacy interests can be addressed by a protective order.

As a result, the motion to compel further responses to Request number 1 is granted.

Number 15 seeks “[a]ny and all WRITINGS that refer or relate to any training provided by Defendant LACMTA to Defendant driver Shamon Michael Todman (Badge No. 80577).”

Defendant’s amended response states the following: “Objection – this request is vague, ambiguous, overbroad, unduly burdensome, seeks documents which are not relevant to the issues of this action or likely to lead to the discovery of admissible evidence, and seeks document protected from disclosure pursuant to the official information privilege and Defendant’s employee’s right to privacy in their personnel/employment files. Without waiving said objections, after a diligent search and reasonable inquiry, Defendant will comply with this request and produce all non-privileged documents or things in the demanded category that are in the possession, custody, or control of Defendant and to which no objection is being made will be included the production. See Exhibit 8 and Exhibit 9 produced concurrently with Defendant’s responses.”

In opposition, Defendant asserts that during the IDC, Plaintiff’s counsel indicated he wanted training records related to “intersections”, “passing other vehicles”, and “DVR system of the bus.” (Opp., 6.) Defendant contends it produced Todman’s electronic record of completed training courses and produced the table of contents for Defendant’s Rulebook and Standard Operating Procedures. Defendant argues Plaintiff has not shown that he is entitled to the entire rulebook, and instead asks Plaintiff to use the table of contents and identify which rules are within the scope of the training topics.

In reply, Plaintiff asserts Defendant provided no content of Todman’s training, only the training titles. Additionally, it appears no training materials related to “intersections”, “passing other vehicles”, and “DVR system of the bus” have been produced. The Court finds Defendant’s argument that Plaintiff should have to first request the discovery based on the Rulebook table of contents to be unpersuasive, given that Defendant is in the best position to produce the responsive material. Therefore, the motion to compel further responses to number 15 is granted.

Plaintiff requests $4,625 in monetary sanctions against Defendant and its counsel, based on a $500 hourly rate. The Court finds sanctions are warranted but the amount requested is excessive. Therefore, the Court awards $2,500 in sanctions (5 hours of attorney time).

Accordingly, the Court GRANTS Plaintiff’s motion to compel further responses to Request for Production of Documents, Set One, numbers 1 and 15. Defendant shall serve further responses within 10 days of this order.

The Court awards monetary sanctions in the reduced amount of $2,500.00 against Defendant and its counsel, jointly and severally, due payable to counsel for Plaintiff within 30 days.

[1] Although the parties also reference a motion to compel further responses to Form Interrogatories, no such motion or separate statement appears on the Court’s docket, nor has Plaintiff provided a copy of the responses to Form Interrogatories. Accordingly, the Court does not address the arguments made regarding the responses to Form Interrogatories.

DEPT:	32
HEARING DATE:	October 2, 2024
CASE NUMBER:	23STCV16113
MOTIONS:	Compel Further Responses to Request for Production of Documents, Set One
MOVING PARTY:	Plaintiff Hee Jung Kim
OPPOSING PARTY:	Defendant Los Angeles County Metropolitan Transportation Authority