Judge: Frank M. Tavelman, Case: 19STCV38886, Date: 2022-09-09 Tentative Ruling

Case Number: 19STCV38886    Hearing Date: September 9, 2022    Dept: A

Motion to Compel Further Responses to Requests for Production

ALLEGATIONS:

Ze Yu Bei aka Kevin Bei, a minor, through his guardian ad litem, Tian Le Bei ("Plaintiff") filed suit against Arcadia Unified School District ("AUSD"), City of Arcadia ("Arcadia"), and James O'Brien ("O'Brien") (collectively, "Defendants"), alleging that O'Brien harassed and assaulted Plaintiff over the course of several weeks in 2019. Plaintiffs filed a First Amended Complaint ("FAC") on October 31, 2020, alleging five causes of action: (1) Negligence; (2) Assault (against O'Brien only); (3) Battery (against O'Brien only); (4) Intentional Infliction of Emotional Distress; and (5) Negligent Infliction of Emotional Distress.

HISTORY`:

The Court received the Motion to Compel Further Responses to Requests for Production filed by Plaintiff on August 5, 2022; and the opposition filed by Defendant on August 26, 2022.

RELIEF REQUESTED:

Plaintiff moves for an order compelling Defendant to provide further responses to Request for Production of Documents, Set No. 2, Request Nos. 1, 3-10, 16, 17, and 20. Plaintiff also moves for associated sanctions in the amount of $7,495.

ANALYSIS:

I.          LEGAL STANDARD

CCP § 2031.310 provides that a party may bring a motion to compel further to Requests for Production where the responding party provides inadequate, incomplete, or evasive responses, or the objections are too general or without merit. The propounding party must submit a declaration under CCP § 2016.040 stating facts demonstrating a good faith and reasonable effort to informally resolve all issues raised by the motion. (CCP § 2031.310(b)(2).) A motion to compel further responses to Requests for Production must further specifically identify facts showing good cause for the discovery. (CCP § 2031.310(b)(1).) The motion must be brought within 45 days of service of the responses or supplemental responses. (CCP § 2031.310(c).) Sanctions are mandatory against the party or attorney who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or the circumstances make imposition of sanctions unjust. (CCP § 2031.310(h).)

II.        MEET AND CONFER         

Although Defendant argues that Plaintiff evinced a “total failure to meet and confer” (Oppo., Notice of Motion, 2:11-12) prior to filing the instant motion, Defendant also asserts that Plaintiff emailed Defendant meet and confer correspondence, and that the parties later held a meet and confer conference call. (Oppo., 2:8-9.) On this basis, and as Plaintiff’s counsel also asserts that she attempted to meet and confer with Defendant’s counsel (Decl. Paer, ¶ 13), the Court finds that meet and confer requirements have been satisfied to code.

III.       MERITS

Plaintiff states that on March 30, 2022, he propounded Requests for Production, No. 2 on Defendant. Defendant served its written response on May 2, 2022. (Decl. Paer, ¶¶ 3-4.) Plaintiff asserts that he drafted an agreed upon protective order to alleviate certain Defendant’s concern, but that Defendant ultimately did not sign and return the protective order as promised. (Decl. Paer, ¶¶ 5-20.)

In opposition, Defendant argues that the relevant discovery was propounded while this action was in federal court, and that Plaintiff has not propounded any discovery in state court. Second, Defendant argues that the instant motion is untimely, as it submitted its responses on May 2, 2022, whereas the instant motion was filed on August 5, 2022. Defendant also alleges that the documents sought by discovery are protected by Gov. Code § 6254. In addition, Defendant argues that the documents sought by discovery are excluded from discovery pursuant to the Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1157-158 holding that an employer who admits its employee was acting within the course and scope of his employment concedes liability for the employee’s wrongful act. Finally, Defendant argues that the personnel records sought through discovery are not relevant to Plaintiff’s claims and also violate the privacy rights of other students.

A.    Untimely Motion

A motion to compel further responses must be filed within 45 days of the response date or to any stipulated extended date. Defendant is correct in that responses were propounded on May 2, 2022, which meant the deadline to file the instant motion was June 16, 2022. The instant motion is thus untimely, as Plaintiff has waived the right to compel a further response pursuant to CCP § 2031.310(c). While the Court is sympathetic to Plaintiff’s long-running and ultimately unsuccessful attempt to have Defendant sign a stipulated protective order, this attempt does not waive the 45-day deadline for two reasons: first, by Plaintiff’s counsel’s own admission, she sent out the most recent request for “immediate resolution” of the protective order issue on July 1, 2022 and never received a response. At this point, Plaintiff still had more than two weeks to file a motion to compel further. Second, CCP § 2031.310(c) expressly provides that the parties must agree to a specific later deadline in writing, and Plaintiff has not produced any evidence that the parties did so.

IV.       CONCLUSION

The Court thus denies the instant motion as untimely.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff Ze Yu Bei aka Kevin Bei’s Motion to Compel Further Responses to Requests for Production came on regularly for hearing on September 9, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION IS DENIED AS UNTIMELY PURSUANT TO CCP 2031.310(C).

IT IS SO ORDERED.

DATE:  September 9, 2022                           _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles