Judge: Bryant Y. Yang, Case: 20STCV16994, Date: 2024-01-16 Tentative Ruling
Case Number: 20STCV16994 Hearing Date: January 16, 2024 Dept: L
Plaintiffs Laura Rocha, Ezekiel Rocha, and Javier
Lopez’s Motion to Compel Further Response to Request for Production of
Documents, Set Three is DENIED. Plaintiffs’ request for monetary sanctions
against Defendant Mi Sueno Speech Therapy, Inc. or Counsel Brian P. Kamel is
DENIED.
I.
BACKGROUND
On May 5, 2020,
Plaintiff Laura Rocha, as parent guardian ad litem for Ezekiel Rocha and Javier
Lopez (“Plaintiffs”), filed an action against Defendants Diana Arreola
(“Arreola”), Mi Sueno Speech Therapy, Inc. (“Defendant”), and Does 1-50, alleging
that Arreola was caught on camera violently hitting Plaintiff Ezekiel Rocha, a
two-year-old with developmental delays, during their weekly speech therapy
sessions. Plaintiffs asserted four
causes of action: (1) negligence; (2) negligent infliction of emotional
distress; (3) negligent hiring, supervision, and retention of an employee; and
(4) battery. Plaintiffs filed the Second
Amended Complaint on February 2, 2021, asserting the same causes of action in
the Complaint, plus separate causes of action for negligent infliction of
emotional distress against Arreola and Defendant.
On April
7, 2023, Plaintiffs served Defendant’s counsel with a Request for Production of
Documents, Set Three. (Rabi Decl. ¶ 3,
Ex. A.) On May 30, 2023, Defendant
initially only served objections to Plaintiffs’ request. (Id. at ¶ 4, Ex. B.) On May 31, 2023, Plaintiffs served a
thirty-three page meet and confer letter and gave Defendant until June 14, 2023,
to provide supplemental responses. (Id.
at ¶ 6, Ex. C.) On August 1, 2023,
Defendant’s counsel produced redacted documents. (Id. at ¶ 7, Ex. D.) Plaintiffs’ counsel asserts that further
attempts to meet and confer were ignored. (Id.)
On September 28, 2023, Plaintiffs filed a Motion
to Compel Further Response to Requests for Production of Documents, Set Three. Plaintiffs
argue that Defendant has raised unmeritorious objections and have produced
documents so heavily redacted that they are unintelligible. (Mem. P&A at p. 8.) Plaintiffs also contend that the documents
requested are neither attorney-client privileged communications or work-product
privileged documents because the documents are from September 2019 to December
2019, four months before the assault and battery caught on camera. (Id. at p. 5.) Plaintiffs request that the produced
documents be presented unredacted to the Court for in-camera review. (Id. at p. 8.)
On November 17,
2023, Defendant filed an Opposition. Defendant asserts that Plaintiffs did not attach the
documents at issue in the instant motion and, therefore, the Court cannot
evaluate Defendant’s production without the documents. (Opp’n at p. 2.) Defendant contends that all the documents
have been produced, never existed, or will have been produced by November 20,
2023. (Id. at p. 2.) Defendant asserts that the information
requested is not limited to communication regarding the Plaintiffs; the
requested documents allegedly contain the names and medical history of other
patients, which are not relevant to the instant case and protected from
disclosure under state and federal law. (Id.
at pp. 2-4.)
No reply was
filed. A hearing on the present Motion
and Status Conference Re: Discovery Referee, Mandatory Settlement Conference,
and Mediation Setting is set for January 16, 2024.
II.
DISCUSSION
A. Motion to Compel Further Response
Plaintiffs move
to compel Defendant to provide further response to Plaintiffs’ Requests for
Production of Documents, Set Three. For
the following reasons, the Court DENIES Plaintiffs’ motion.
1.
Legal Standard
A party may file
a motion to compel further production if it concludes that the “statement of
compliance with the demand is incomplete,” a “representation of inability to comply
is inadequate, incomplete, or evasive,” and “[a]n objection in the response is
without merit or too general.” (Code
Civ. Proc., § 2031.310, subd. (a).) The
motion must be accompanied with a meet and confer declaration. (Id., § 2031.310, subd. (b)(2).) Furthermore, the
motion must be accompanied by a separate statement, unless no response has been
provided to the request for discovery or where the court has allowed the moving
party to submit in place a concise outline of the discovery request and each
response in dispute. (Cal. Rules of
Court, rules 3.1345(a)(2) and (3), 3.1345(b).)
The separate statement must provide “all the information necessary to
understand each discovery request and all the responses to it that are at issue.” (Cal. Rules of Court, rules 3.1345(c).)
To prevail, the
moving party must first offer specific facts demonstrating “good cause
justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310,
subd. (b)(1).) This burden “is met
simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court
(2002) 96 Cal.App.4th 443, 448.) If
“good cause” is shown by the moving party, the burden shifts to the responding
party to justify any objections made to document disclosure. (Kirkland v. Superior Court (2002) 95
Cal.App.4th 92, 98.)¿¿
The court must
impose sanctions on a party who unsuccessfully makes or opposes a motion to
compel further unless the party acted with substantial justification or other
circumstances make imposing a sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).) “[A]bsent
exceptional circumstances, the court shall not impose sanctions on a party or
any attorney of a party for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten as the result
of the routine, good faith operation of an electronic information system.” (Id., § 2031.310, subd. (j)(1).)
2.
Plaintiffs Failed to File
a Separate Statement.
Here,
Plaintiffs did not file a separate statement for the Motion to Compel Further
Response in violation of the California Rules of Court, rule 3.1345. In the Notice of Motion, Plaintiffs
identified a “Separate Statement of Items in Dispute,” but no such statement
was actually filed concurrently with the Motion to Compel Further Response. It is unclear if Plaintiffs’ meet-and-confer
letter attached to the Declaration of Counsel Justin Rabi contain the contents
required in a separate statement. Even
if it did, the Court did not grant Plaintiffs permission to submit in place a
concise outline of the discovery request and each response in dispute.
Because Plaintiffs did not file a separate statement and because the Court has not allowed Plaintiffs to submit in place a concise outline, the Court DENIES Plaintiff’s Motion to Compel Further Response. (See BP Alaska Exploration, Inc. v. Super. Ct. (1988) 199 Cal.App.3d 1240, 1270 [trial court may take a discovery motion off calendar for failure to comply with the California Rules of Court].)
B.
Sanctions
Plaintiffs
request sanctions in the amount of $2,220.00 against Defendant and its attorney
of record, Brian P. Kamel, for having to bring the instant Motion to Compel
Further Response. (Mem. P&A at p.
8.) In opposition, Defendant seeks
monetary sanctions against Plaintiff in the amount of $2,062.50. (Opp’n at p. 6.)
The Court
declines to award sanctions to Plaintiffs or Defendant in this case because the
Court denies Plaintiffs’ Motion to Compel Further for failure to file a
separate statement. Based on the
circumstances, the imposition of sanctions would be unjust due to the
procedural defects. Accordingly,
Plaintiffs’ request for monetary sanctions against Defendant is DENIED.
Defendant’s request for monetary sanctions against Plaintiff is also DENIED.
III.
CONCLUSION
DATED: January 15, 2024
____________________
Hon. Bryant Y. Yang
Judge of the Superior Court