Judge: Curtis A. Kin, Case: 22STCP04006, Date: 2023-11-14 Tentative Ruling
Case Number: 22STCP04006 Hearing Date: November 14, 2023 Dept: 82
MOTION TO COMPEL RESPONDENT TO PRODUCE QUALIFIED
WITNESS FOR DEPOSITION
Date: 11/14/23
(9:30 AM)
Case: Wow Media Inc. v.
California Department of Transportation (22STCP04006)
TENTATIVE RULING:
Petitioner Wow Media Inc.’s Motion to Compel Respondent
California Department of Transportation to Produce a Prepared Witness and
Documents is GRANTED IN PART.
Petitioner Wow Media Inc. moves for orders compelling
respondent California Department of Transportation (“Caltrans”) to: (1) produce
a witness who can competently and fully testify as to all four examination
topics in the operative third amended deposition notice; (2) respond in full
and without objection to deposition questions regarding what measures
respondent took to comply with petitioner’s September 29, 2022 public records
request; and (3) search email accounts of all agency employees who had possession
of the Federal Highway Administration’s June 16, 2022 Outdoor Advertising
Review (“OAR”) between June 23, 2022 and July 7, 2022 inclusive and to disclose
all communications with persons not employed by respondent regarding the OAR
during that period.
As a preliminary matter, respondent’s evidentiary objections
are OVERRULED.
I.
DISCOVERY CUTOFF
Respondent contends
the motion should be denied as untimely based on the discovery cutoff. Under
CCP § 2024.020(a), the deadline to have a discovery motion heard was 15 days
before the date initially set for trial.
Trial was initially
set for November 14, 2022. (2/28/23 Minute Order.) On October 25, 2023, the Court heard
petitioner’s ex parte application to continue trial. The Court continued the hearing on the
petition for writ of mandate from November 14, 2022, to March 28, 2024, but
noted that the original discovery cutoff would remain in place. (10/25/23
Minute Order.) Accordingly, the discovery cutoff date to hear the instant
motion was October 30, 2023.
The Court, however,
has discretion to hear a discovery motion after the cutoff date. (Pelton-Shepherd
Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th
1568, 1587; CCP § 2024.050(b).) Such discretion is governed by CCP § 2024.020,
which states that the continuance of a trial date does not reopen discovery
proceedings, except as provided through a motion to reopen discovery pursuant
to CCP § 2024.050. (Pelton-Shepherd, 165 Cal.App.4th at 1588.) CCP
§ 2024.050(b) requires the Court to take into consideration any matter “‘relevant
to the leave requested,’ including, but not limited to ... [¶] ‘[t]he necessity
and the reasons for the discovery’ and ‘[t]he diligence or lack of diligence of
the party seeking ... the hearing of a discovery motion, and the reasons that
... the discovery motion was not heard earlier.’” (Pelton-Shepherd, 165
Cal.App.4th at 1588, quoting CCP § 2024.050(b).)
During petitioner’s
ex parte application to continue trial, petitioner based its application on the
ground that the instant motion was pending. (Notice of Ex Parte Application at
2:6-15.) Petitioner explained that, after it received a first set of responsive
documents on October 6, 2022, it found the production lacking and demanded that
respondent conduct a proper search. (10/24/23 Alger Decl. ¶¶ 4-6 & Ex. C.)
Over the next ten months, respondent notified petitioner that it was gathering
documents and needed time to review them for privilege or exemptions under the
California Public Records Act and complete production. (Id. ¶¶ 7, 9.)
However, respondent did not provide additional documents until August 23, 2023,
three weeks before the deadline for petitioner to file an opening brief. (Id.
¶ 10.)
Petitioner had also
served a notice of deposition of respondent’s person most knowledgeable (“PMK”)
on February 21, 2023. (Id. ¶ 11.) Due to delays in the production of
additional documents and scheduling conflicts for the witness and counsel, the
deposition did not take place until September 25, 2023. (Id. ¶¶ 11, 14
& Ex. H.) Petitioner found the deposition of the PMK lacking because the
witness had no knowledge of the efforts that respondent made to identify and
gather responsive documents. (Id. ¶¶ 15-19.) After the deposition,
petitioner was unable to ascertain whether respondent complied with the public
records request. (Id. ¶ 21.) On October 11, 2023, petitioner promptly
filed the instant motion after the deposition.
Based on the events
concerning discovery and the granting of a trial continuance, on October 25,
2023, the Court implicitly found good cause to continue the trial and reopen
discovery for the limited purpose of allowing the instant motion to be heard.
Petitioner appears to have been diligent in corresponding with respondent
concerning the updated production of responsive documents and the scheduling of
the deposition of respondent’s person most knowledgeable.
Accordingly, the
Court will address the instant motion on the merits.
II.
MOTION
TO COMPEL ATTENDANCE OF PERSON MOST KNOWLEDGEABLE AT DEPOSITION
Petitioner seeks an
order compelling respondent “to produce a witness who can competently and fully
testify as to all four Examination Topics in Wow Media’s Third Amended
Deposition Notice….” (Notice of Mtn. at 2:7-10.) The examination topics are as
follows:
TOPIC NO. 1:
PUBLIC
RECORDS RELATING TO CALTRANS’ receipt, possession, and distribution inside and
outside of CALTRANS of copies of the SEPTEMBER 2020 REVIEW between the date of
first receipt by CALTRANS and the present.
TOPIC NO. 2:
PUBLIC
RECORDS RELATING TO CALTRANS’ receipt, possession, and distribution inside and
outside of CALTRANS of copies of the JUNE 2022 REVIEW between the date of first
receipt by CALTRANS and the present.
TOPIC NO. 3:
Compliance
and all efforts to comply with Petitioner’s requests for access to PUBLIC RECORDS
that were submitted to CALTRANS on behalf of Petitioner on September 9, 2022, numbered
R018856-092922, R018857-092922, R018858-092922, R018859-092922, R018860- 092922,
R018861-092922, and R018862-092922.
TOPIC NO. 4:
All
claims of exemption or privilege that CALTRANS contends relieve it of the
obligation to produce any record falling within the scope of Petitioner’s
requests for access to PUBLIC RECORDS that were submitted to CALTRANS on behalf
of Petitioner on September 9, 2022, numbered R018856-092922, R018857-092922,
R018858-092922, R018859-092922, R018860-092922, R018861-092922, and
R018862-092922.
(Alger Decl. ¶ 12
& Ex. I at 2:17-3:8.)
Respondent contends
that the examination topics are not relevant to a proceeding under the
California Public Records Act (“CPRA”). “[T]he general ‘scope of discovery’ in
Public Records Act proceedings remain[s] circumscribed by its relevance to the ‘narrow
issue: whether a public agency has an obligation to disclose the records that
the petitioner has requested.’” (County of San Benito v. Superior Court (2023)
96 Cal.App.5th 243, 277, quoting City of Los Angeles v. Superior Court
(2017) 9 Cal.App.5th 272, 289.)
A public agency’s
obligation to disclose records includes documents that may inform petitioner about
whether respondent conducted a reasonable search for records in response to the
subject public records request. (San Benito, 96 Cal.App.5th at 280
[finding information about record retention policies discoverable because
policies “may well inform [requestor’s]
assessment of the reasonableness of the [public agency’s] search for documents
in response to its public records request”]; see also Gov. Code §
7922.530(a) [request to public agency must “reasonably describe[] an
identifiable record or records”].)
The Court finds
that the testimony concerning the four examination topics may inform petitioner
as to whether respondent conducted a reasonable search in response to
petitioner’s September 9, 2022 public records request. Topic Nos. 1 and 2
pertain to the identification of documents that may be responsive to
petitioner’s September 29, 2022 public records request. (See Alger Decl.
¶¶ 2, 3 & Ex. A [requests concerning September 2020 and June 2022
Outdoor Advertising Review].) Topic No. 3 concerns respondent’s efforts to
comply with petitioner’s records request. Topic No. 4 concerns whether
respondent is withholding any otherwise responsive documents based on a claim
of privilege or exemption.
Respondent
maintains that Amanda Cervantes, its designated Person Most Knowledgeable,
competently testified regarding the four examination topics. The Court
disagrees.
Cervantes testified
that she is the public records officer for respondent and that she has
oversight concerning respondent’s compliance with the CPRA. (Alger Decl. ¶ 14
& Ex. L at 8:7-18.) Notwithstanding that stated title and responsibility, she
did not have any information regarding Topic Nos. 1, 2, and 4. (Id. at
12:1-8, 12:22-13:3, 14:6-23.)
As for Topic No. 3,
Cervantes testified that she could only speak to the general process regarding
respondent’s efforts to comply with the CPRA. (Id. at 10:14-20,
13:10-14:5.) She did not have first-hand knowledge regarding the collection of
documents that were responsive to petitioner’s public records request. (Id.
at 23:13-20.) Cervantes testified that her team assigned petitioner’s records
request to the coordinator of the outdoor advertising division, George Anzo. (Id.
at 9:12-10:12, 16:4:10, 18:2-19.) According to Cervantes, Anzo handled 99% of
the document collection in response to the public records request. (Id.
at 25:1-13.) Cervantes herself was not
involved in any search of email inboxes and outboxes of Caltrans employees who,
based on emails produced by respondent, had received the June 2022 Outdoor
Advertising Review. (Id. at 27:16–31:20; 37:3-7; 37:20–38:24;
39:22–40:14; 42:11-44:20.) When Anzo told Cervantes that he needed to search
for responsive documents other than those in his possession concerning a “FHWA
draft review,” Cervantes gave Anzo advice and assisted him by speaking with
“specific people in the directors office” concerning the draft review. (Id.
at 17:7-14, 18:20-21:1.) However, Cervantes did not speak to Anzo or any of the
“specific people in the directors office” to prepare for the deposition. (Id.
at 24:20-25.) Nor did Cervantes investigate what was done to collect responsive
information. (Id. at 56:13-18.)
In reviewing
Cervantes’ deposition testimony, it is readily apparent she was unable to
testify concerning respondent’s efforts to identify and gather documents that
were responsive to petitioner’s September 29, 2022 public records request.
Although respondent produced some documents on October 6, 2022, and August 23,
2023 (Alger Decl. ¶¶ 4, 10), petitioner does not have sufficient information to
determine whether all responsive documents were produced and is entitled to
discovery regarding such.
The motion to
compel attendance of person or persons most qualified at deposition is GRANTED.
Pursuant to CCP § 2025.230 and 2025.450(a), respondent California Department of
Public Transportation is required to produce a witness or witnesses who can
competently and fully testify as to Topic Nos. 1-4, as set forth in the Third
Amended Deposition Notice on ___________________ at 10:00 AM by way of
videoconferencing software.
III.
MOTION
TO COMPEL RESPONSES TO DEPOSITION QUESTIONS
Petitioner further
seeks an order compelling respondent “to respond in full and without objection
to Wow Media’s deposition questions regarding what measures Caltrans took to
comply with requests made by Wow Media on September 9, 2022 for disclosure of
documents
pursuant to the
California Public Records Act….” (Notice of Mtn. at 2:11-16.) A separate
statement setting forth the text of the question and response is required for
motions to compel answers at a deposition. (Rule of Court 3.1345(a)(4), (c)(1),
(c)(2).) Petitioner’s separate statement only set forth the examination topics,
not any questions to which petitioner sought responses. (See generally Separate
Statement.) It is thus unclear reagrding which questions from the deposition of
respondent’s Person Most Knowledgeable petitioner seeks answers. The Court
accordingly exercises its discretion to deny a discovery motion based on
violations of Rules of Court. (Mills v. U.S. Bank (2008) 166 Cal.App.4th
871, 892.)
Petitioner’s motion
to compel responses to questions is DENIED.
IV.
MOTION TO COMPEL SEARCH OF EMAIL ACCOUNTS
Petitioner further seeks an order compelling respondent “to
search the email accounts of all agency employees who had possession of the
Federal Highway Administration’s June 16, 2022 Outdoor Advertising
Review…between June 23, 2022 and July 7, 2022, inclusive, and to disclose to
Petitioner all communications with persons not employed by Caltrans regarding
the OAR during that period, within 10 days or such other date ordered by the
Court.” (Notice of Mtn. at 2:17-23.)
Putting aside whether this request for disclosure of records
impermissibly seeks an “order compelling compliance with the Public Records Act
by way of the Civil Discovery Act” (County of San Benito, 96 Cal.App.5th
at 281), petitioner does not cite any statutory mechanism through which the
Court can make such an order. Based on the supporting declaration, petitioner
appears to not have served any request for production through which the Court
could compel a further response. (Compare CCP §§ 2025.480(a)
[motion to compel document production at deposition], 2031.310(a) [motion to
compel further response to request for production] with Alger Decl. ¶ 12
& Ex. I [no request for production included in operative deposition
notice].)
Accordingly, petitioner’s motion to compel respondent to
search emails for specified documents and disclose such documents is DENIED.
V.
SANCTIONS
Considering the mixed result of the motion, petitioner’s
request for sanctions is DENIED.