Judge Curtis A. Kin, Case 20STCV15983 2022-10-06 Tentative Ruling

Judge: Curtis A. Kin, Case: 20STCV15983, Date: 2022-10-06 Tentative Ruling

Case Number: 20STCV15983 Hearing Date: October 6, 2022 Dept: 72

MOTION FOR TERMINATING, ISSUE, EVIDENTIARY, AND/OR MONETARY SANCTIONS

Date: 10/6/22 (8:30 AM)

Case: Pedro Ceren v. Am. Med. Response Ambulance Serv., Inc. et al. (20STCV15983)

TENTATIVE RULING:

Defendants American Medical Response Ambulance Service, Inc. and American Medical Response of Southern California’s Motion for Terminating, Issue, Evidentiary and/or Monetary Sanctions is GRANTED IN PART.

Defendants American Medical Response Ambulance Service, Inc. (“AMRAS”) and American Medical Response of Southern California (“AMRSC”) seek terminating, issue, or evidentiary sanctions for violation of a court order compelling responses to discovery.

On March 29, 2022, the Court granted defendants’ motion to compel responses to the first sets of Form Interrogatories-General, Form Interrogatories-Employment, Special Interrogatories, and Requests for Production of Documents. (Kun Decl. ¶ 8.) The Court ordered plaintiff Pedro Ceren to serve written verified responses, without objection, to Form Interrogatories-General, Set One; Form Interrogatories-Employment, Set One; Special Interrogatories, Set One; and Requests for Production of Documents, Set One propounded by defendants American Medical Response Ambulance Service, Inc. and American Medical Response of Southern California within 15 days. (Kun Decl. ¶ 8.) The Court also ordered plaintiff to produce documents that are responsive to Requests for Production of Documents, Set One within 15 days. (Kun Decl. ¶ 8.)

On April 13, 2022, plaintiff served responses to the discovery, as well as more than 2,000 pages of documents. (Kun Decl. ¶ 9 & Exs. K-R.) Defendants argue that plaintiff’s responses are incomplete or non-responsive.

Generally, the trial court may terminate a party’s action as a sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)

The March 29, 2022 order stated, in relevant part: “Within 15 days of this ruling, plaintiff Pedro Ceren is ordered to serve written verified responses, without objection, to Form Interrogatories-General, Set One; Form Interrogatories-Employment, Set One; Special Interrogatories, Set One; and Requests for Production of Documents, Set One propounded by defendants American Medical Response Ambulance Service, Inc. and American Medical Response of Southern California (8 sets in total) and produce documents that are responsive to Request for Production of Documents, Set One.” (3/29/22 Minute Order.)

Defendants admit that plaintiff responded to each of the eight sets of discovery at issue. (Kun Decl. ¶ 9.) The responses are verified and contain no objections. (Kun Decl. ¶ 9 & Exs. K-R.) Under these circumstances, defendants fail to show any willfulness from plaintiff to the degree that would warrant terminating, issue, or evidentiary sanctions. Plaintiff served the responses required by the March 29, 2022 order.

Insofar as the responses were incomplete or non-responsive, defendants’ remedy was to file motions to compel further responses on the ground that the answers to interrogatories are evasive or incomplete or the statements of compliance with document requests are incomplete. (CCP §§ 2030.300(a)(1), 2031.310(a)(1).) Before filing such motions, defendants were required to meet and confer with plaintiff to attempt to resolve the discovery disputes. (CCP §§ 2030.300(b)(1), 2031.310(b)(2); see also CCP § 2016.040 [“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion”].) Defendants did not meet and confer with plaintiff. (See generally Kun Decl.) Defendants admit that the instant motion is not a motion to compel further response. (Reply at 2:11-12 [“Contrary to Plaintiff’s arguments, Defendants’ motion is not a motion to compel further discovery responses”].)

Even if this motion could be construed as a motion to compel further response, it was served and filed on July 19, 2022, 97 days after plaintiff served the verified responses and past the 45-day deadline for motions to compel further responses. (CCP § 2030.300(c), 2031.310(c).) Accordingly, the Court would have no authority to rule on such motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 [“We do not believe the 45–day limitation is ‘jurisdictional’ in the fundamental sense, but is only ‘jurisdictional’ in the sense that it renders the court without authority to rule on motions to compel other than to deny them.”].)

Defendants state that plaintiff produced more than 2,000 pages of documents but that plaintiff did not identify the documents “with the specific request number to which the documents respond,” as required by CCP § 2031.280(a). (Kun Decl. ¶ 9.) However, plaintiff referred to documents by Bates stamp number in the responses. (See, e.g., Kun Decl. ¶ 9 & Ex. N at 4:10-12.) Insofar as plaintiff did not identify to which document request certain Bate stamped documents were responsive, either in the responses to the document requests or the documents themselves, defendants’ remedy was to file a motion to compel compliance, pursuant to CCP § 2031.320(a). (CCP § 2031.320(a) [“If a party filing a response to a demand for inspection, copying, testing, or sampling under Section[] . . . 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance”].) Defendants do not seek such relief in this motion.

Insofar as plaintiff did not serve certain requested documents, however, plaintiff is in violation of the March 29, 2022 order.

As a preliminary matter, defendants contend that plaintiff did not produce any cellular telephone records. (Kun Decl. ¶ 9.) However, in response to AMRSC’s Request for Production No. 1, plaintiff responded: “After diligent search and reasonable inquiry, Plaintiff is not in possession of his cellular telephone usage records for the relevant period of time.” (Kun Decl. ¶ 9 & Ex. N at 3:11-12.) Plaintiff has stated his inability to comply with the document request, that he made a diligent search and reasonable inquiry, and the reason why he cannot reply, as required by CCP § 2031.230. To the extent that plaintiff did not “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,” also required by CCP § 2031.230, defendants could have contended in a motion to compel further response that plaintiff’s inability to comply was “inadequate, incomplete, or evasive.” (CCP § 2031.310(a)(2).) However, defendants did not file any motion to compel further response.

With respect to other document requests, plaintiff responded: “Plaintiff will produce all documents responsive to this request that are in his possession, custody, and control, and that Plaintiff is able to locate after conducting a diligent search and reasonable inquiry.” The March 29, 2022 order required plaintiff to “produce documents that are responsive to Request for Production of Documents, Set One” within 15 days. (3/29/22 Minute Order.) Plaintiff was not entitled to postpone a “diligent search and reasonable inquiry” to a time perceived as more convenient for plaintiff.

Accordingly, pursuant to the Court’s ability to “make those orders that are just” under CCP § 2031.310(i), the motion is GRANTED IN PART. Plaintiff Pedro Ceren is ordered to serve all documents responsive to Requests for Production, Set One, Nos. 2, 4-12, 14, 17-19, 22-24, and 27 propounded by American Medical Response of Southern California and Requests for Production, Set One, Nos. 1, 3-6, and 8-12 propounded by American Medical Response Ambulance Service, Inc. within fifteen (15) days hereof. Because no further responses are ordered, plaintiff is ordered to comply with CCP § 2031.280(a) by stating on the documents to which document requests the documents are responsive.

The Court notes that for Request No. 2 propounded by AMRAS, while the Separate Statement for AMRAS states that plaintiff represented that he would produce documents, plaintiff stated an inability to comply in the actual responses. (Cf. AMRAS RFP Separate Statement at 3:18-20 with Kun Decl. ¶ 9 & Ex. N at 3:18-19.)

Based solely on plaintiff’s failure to produce documents in response to the first sets of Requests for Production, the Court imposes monetary sanctions against plaintiff Pedro Ceren in the amount of $705, payable to counsel for defendants within thirty (30) days hereof.