Judge: Carolyn M. Caietti, Case: 37-2021-00053959-CU-OE-CTL, Date: 2024-04-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 04, 2024

04/05/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Other employment Discovery Hearing 37-2021-00053959-CU-OE-CTL LOYA GUTIERREZ VS MIRAMAR GENERAL ENGINEERING INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 03/07/2024

Plaintiffs Hector Loya Gutierrez, Jorge Beltran, Sergio Zepeda and Hector Loya Gaona's Motion to Compel Defendant Liberty Mutual Insurance Company's Further Responses to Plaintiffs' Joint Request for Production of Documents, Set One; and Request for Sanctions is GRANTED.

C.C.P. Section 2031.220, et seq.

Responses to discovery requests are fairly formulaic. A party must serve a written response stating the party will comply, lacks the ability to comply, or objects to compliance. (C.C.P., § 2031.210 (a).) A statement the party will comply must state the production will be allowed in whole or in part and that all documents in its possession, custody or control and to which no objection is made will be included in the production. (C.C.P., § 2031.220.) A representation of inability to comply must affirm a diligent search and a reasonable inquiry has been made in an effort to comply. (C.C.P., § 2031.230.) In addition, the statement must also specify 'whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.' (Ibid.) Further, the statement must 'set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.' (Ibid.) Objections must identify with particularity the document to which the objection is being made and set forth clearly the extent of and the specific ground for the objection. (C.C.P., § 2031.240(b).) Objections based on privilege must include sufficient factual information for other parties to evaluate the merits of the claim, including, if necessary, a privilege log. (Id., at subd. (c)(1).) Defendant's Failure to Comply with C.C.P. Section 2031.220 et seq.

Here, Defendant waived its objections by not serving a timely response and waived its objections on the record before the Court. (ROA 114 – Minute Order dated Oct. 12, 2023 ['Upon the Court's inquiry, Attorney Bluemel for Defendant waives all objections to discovery.'].) In its opposition to this motion, Without supporting legal analysis, Defendant concluded the waiver should be rescinded under C.C.P.

section 437, as an inadvertent mistake because an associate did not fully understand Defendant would be unable to produce additional documents due to privacy and privilege reasons. Notably, no privacy or privilege objections were made.

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3090474  56 CASE NUMBER: CASE TITLE:  LOYA GUTIERREZ VS MIRAMAR GENERAL ENGINEERING INC  37-2021-00053959-CU-OE-CTL Nos. 2, 7, 8, 14, 24, 25, 43 fail to comply with C.C.P. section 2031.220. Although Defendant produced certain documents, it failed to state whether the production is allowed in whole or in part and that all documents in its possession to which no objection is made will be included in the production. Thus, the responses are incomplete, warranting a further response.

For Nos. 9-13, 15-23, 26-41 and 44, Defendants did not state they would produce any documents. Its responses remain incomplete. (C.C.P., § 2031.230.) Notwithstanding, the objections, which were waived, lack merit. Defendant relies on California Regulation 2695.5(e) and that Plaintiff 'did not follow the procedure for filing a claim.' Generally, 10 C.C.R. section 2695.5(e) states that: 'upon receiving notice of claim, every insurer shall immediately, but in no event more than fifteen (15) calendar days later, do the following unless the notice of claim received is a notice of legal action:' (1) acknowledge receipt of a notice of claim; (2) 'provide to the claimant necessary forms, instructions, and reasonable assistance, including but not limited to, specifying the information must provide for proof of claim;' and (3) begin any necessary investigation of the claim. (Emphasis added.) First, this is not a discovery objection. Second, this regulation does not absolve Defendant of its responsibility to produce responsive documents. In fact, the subsection does not apply when the notice is by legal action. Further, it is not explained how notice of a claim impacts whether Defendant is in possession of responsive documents.

To the extent Defendant's objections rest on a privilege or are otherwise protected by privacy, the objections cannot be adequately assessed. (See, C.C.P., § 2031.240(c)(1).) Defendant does not provide any evidence supporting the application of a privilege nor a privilege log.

Thus, a further response is warranted.

Monetary sanctions are authorized. (C.C.P., § 2031.310(h).) Plaintiffs' request for sanctions is substantiated and reasonable. (Declaration of Judith Camilleri, at ¶¶ 16-17.) Defendant does not challenge the hourly rate or the hours spent preparing the motion.

For these reasons, the motion is GRANTED.

Concluding Orders Defendant Liberty Mutual Insurance Company is ordered to serve a further, code-compliant and verified response with production to Plaintiffs' Request for Production of Documents, Set One, Nos. 2 and 7-44 by May 3, 2024.

Defendant Liberty Mutual Insurance Company is ordered to pay monetary discovery sanctions of $3,035 to Plaintiff by May 3, 2024.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Plaintiffs are ordered to serve written notice of the Court's final order on all parties by April 9, 2024.

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3090474  56