Judge: Frank M. Tavelman, Case: 20STCV48850, Date: 2023-07-10 Tentative Ruling

SUBMITTING ON THE TENTATIVE
Generally, the Court will post tentative rulings prior to a hearing; however, the Court does not always do so.  If the parties wish to avoid a court appearance and submit on the tentative ruling, then all counsel must confer and agree to do so.   Each counsel must then contact the Court and advise they have spoken to opposing counsel and will submit on the tentative.  All counsel seeking to submit on a tentative must call Dept A no later than 8:45 a.m. on the hearing day or in lieu may indicate the party is submitting during calendar check-in. Notice of the ruling must be served as indicated in the tentative. If any party declines to submit on the tentative ruling, then all parties should appear at the hearing in person or remotely.
 

Case Number: 20STCV48850    Hearing Date: July 10, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTIONS TO COMPEL FURTHER RESPONSES

ALLEGATIONS: 

On December 22, 2020, David Weissman (“Plaintiff”) filed suit against Neutron Holdings, Inc. dba Lime (“Defendant”). Plaintiff alleges he was injured when an electronic scooter he rented from Defendant malfunctioned.

Plaintiff moves to compel further responses to his Special Interrogatories (Set Two), and Requests for the Production of Document (“RFPD”) (Set Two).

HISTORY:

On October 7, 2022, Plaintiff filed his motions to compel further responses. On February 17, 2023, the parties attended an Informal Discovery Conference (“IDC”). During the IDC, Defendant was ordered to provide a briefing on its objections to Plaintiff’s requests. On February 22, 2023, Defendant filed its IDC brief.

On February 24, 2023, the parties again participated in an IDC hearing. Defendant argues the IDC judge determined several of Plaintiff’s requests to be overly broad and ordered the parties to further meet and confer so that the requests may be appropriately narrowed. (McKie Decl. ¶ 9.) Defendant was ordered to submit verified amended responses by March 10, 2023 and the IDC was continued to March 16, 2023. ((McKie Decl. Exh. F.)

On March 16, 2023, the parties were informed by the IDC court that this matter was being transferred and the hearing was removed from the calendar. (McKie Decl. Exh. H.) On March 17, 2023, this case was subsequently transferred to an independent calendar court. On March 29, 2023, the case was transferred once more to this Court.

On June 15, 2023, this Court held a status conference during which Plaintiff’s motions were placed by on the calendar for June 30, 2023. Defendant states they were unaware the matter had not been fully briefed, causing them to fail to file a timely opposition. (McKie Decl. ¶ 14.) Defendant ultimately realized this error and submitted oppositions on June 27, 2023. At the June 30 hearing, Defendant requested a continuance be granted to allow the Court to review the oppositions. The Court continued the motion to July 10, 2023 and ordered any reply by Plaintiff be filed by July 5, 2023.  

ANALYSIS: 

I.                LEGAL STANDARD 

Special Interrogatories

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that the responses contain: (1) answers that are evasive or incomplete, (2)¿an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response, or (3) unmerited or overly generalized objections.  (C.C.P. §¿2030.300(a).) The responding party has the burden of justifying the objections thereto. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-21.)

 “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence." (C.C.P. § 2017.020(a).) Generally, objections on the ground of burden require the objecting party to produce evidence of (a) the propounding party's subjective intent to create burden or (b) the amount of time and effort it would take to respond. (See West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.) However, no such evidence is necessary where discovery is obviously overbroad on its face. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)  

RFPD

A motion to compel further responses to a demand for inspection or production of documents (“RFPD”) may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive, or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections.  (C.C.P. § 2031.310(c).) 

A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See C.C.P. § 2031.310(b)(1).) In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.”  

If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.) 

Untimely Responses

“In many cases involving untimely responses, the propounding party will take the motion off calendar or narrow its scope to the issue of sanctions.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390.) “If the propounding party proceeds with the motion, however, the trial court has the discretion to rule on the motion. The trial court might compel responses without objection if it finds no legally valid responses have been provided to one or more interrogatories; it might deny the motion to compel responses as essentially unnecessary,  in whole or in part, and just impose sanctions; it might treat the motion as one under section 2030.300 and either determine that further answers are required, or order the propounding party to “meet and confer” (§ 2030.300, subd. (b)) and file a separate statement (Cal. Rules of Court, rule 3.1020(a)(2), (c)); or it might take the motion off calendar, thereby requiring the propounding party to file a motion under section 2030.300.” (Id.)

II.              MERITS

Meet and Confer

The Court finds the declaration submitted by Plaintiff testifying to the meet and confer process no longer reflects the state of discovery. The Fraser declaration was submitted with Plaintiff’s initial filing and before any of the IDC process took place. Plaintiff has submitted no subsequent declaration as to any meet and confer which has taken place after the transfer of case. Further, it is apparent that parties were ordered to further meet and confer by the IDC court, yet not further meet and confer has occurred.

Motions to Compel Further Responses

Plaintiff’s motion seeks to compel responses to Special Interrogatories Nos. 63-125 and RFPD Nos. 21-30. These RFPD request Defendant produce information related to those in the contested Special Interrogatories. Defendant initially served responses objecting to each Special Interrogatory on various grounds (overbroad, unduly burdensome, vague, privileged, etc.). Defendant also objected to each RFPD on virtually identical grounds.

Defendant argues that at the IDC conference, the court agreed that many of Plaintiff’s requests were too broad. Defendant objected to inquiries about e-scooter deaths on grounds that they would not lead to admissible evidence considering the case at issue does not involve a death. Defendant states the IDC judge ruled discovery into e-scooter deaths, brakes issues, sudden acceleration and other unrelated topics were not relevant. (McKie Decl. ¶ 9.)

Defendant argues the IDC court also ruled Plaintiff’s inquiries which requested 10 years of history to be overboard. Defendant states questions which ask for 10 years history of injured riders, incidents where the scooters “did not perform as expected”, user complaints regarding safety, and safety tests were all overboard in scope. (McKie Decl. ¶ 9.)

Defendant states pursuant to the above findings, the IDC court ordered the parties to further meet and confer to narrow the requests. (McKie Decl. ¶ 9.) The IDC court also ordered Defendant to submit verified amended responses by March 10, 2023. ((McKie Decl. Exh. F.)

Defendant served their amended responses to Special Interrogatories Nos. 67-69, 76-78, 88-96, 100, 104-105, 109-10 and 114-115 on March 10, 2023. (McKie Decl. Exh. G.) It does not appear Defendant served amended responses to the RFPD, though this comports with the expectation that parties would further meet and confer.

Defendant also states the parties discussed entering into a protective order prior to further disclosure, so as to protect Defendant’s interest in keeping its design and testing information confidential. (McKie Decl. ¶ 11.) Defendant indicates that it is still willing to engage in such an order. (Id.)

Plaintiff provides arguments to some of the amended responses. Specifically, Plaintiff is skeptical Defendant has no knowledge of incidents regarding “speed wobble” and manhole covers in Special Interrogatory Nos 67, 76-78, and 88-90. Plaintiff also notes amended responses were not served to Special Interrogatories Nos. 82-84 concerning complaints of stability. However, Plaintiff’s reply makes no mention of the IDC process or attempts to engage in further meet and confer.

It is apparent to the Court that Plaintiff’s initial motions are far afield from the current state of discovery in the case. Since the filing of Plaintiff’s motions multiple IDC have taken place which changed the landscape of discovery. Further, Defendant has provided amended responses in accordance with issues addressed at those IDC which are not reflected in the initial motion. The IDC court orders were to further meet and confer, yet that has apparently not happened.

Given the representations of Defendant, the Court is inclined to remove the motion from the calendar pending further meet and confer. The Court encourages the parties to reengage in a discussion to narrow their requests and to revisit the issue of a protective order. However, this case should be much further along in the discovery process and preparation for trial.   A such, the Court is forced to schedule further status conferences and mandatory Informal Discovery Conferences.  Should Plaintiff find the meet and confer process fruitful, it can simply notify the Court to take the status conference and Informal Discovery Conference off calendar.

Sanctions and Related Discovery Orders

The Court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. (C.C.P. § 2023.030(a).) As concerns motions to compel, the law only requires sanctions in the event that a party unsuccessfully makes or opposes a motion to compel a response. (C.C.P. §§ 2031.300 and 2031.290.) As such, any monetary sanctions granted are within the discretionary power of the Court as per C.C.P. § 2030.290.

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though … the requested discovery was provided to the moving party after the motion was filed.” (Sinaiko supra, at 409.)

Here, Defendant’s counsel was present at the status conference and were fully aware of the hearing date for the motions. Given the courtrooms which the case was transferred prior to finding a home in Department A, and the length of time between the filing and the hearing, the court finds Defendant’s oversight to be plausible.  As such, the Court declines to issue sanctions at this time. 

Furthermore, in anticipation of further Informal Discovery Conferences, the Court orders Defendant not to make attorney-client privilege or work product objections unless a privilege log has been prepared for immediate review by the Court on the date that discovery is due. 

The parties are ordered to meet and confer within ten days.  A discovery status conference and Informal Discovery Conference shall be set August 11, 2023, at 1:45 p.m.   Although the court typically mandates in-person IDCs, the parties may appear remotely.

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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 

David Weissman’s Motion to Compel Further Responses to Requests for Production of Documents came on regularly for hearing on July 10, 2023, 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 IS OFF CALENDAR PENDING FURTHER MEET AND CONFER.

SANCTIONS AGAINST DEFENDANT ARE DENIED.

PARTIES ARE ORDERED TO MEET AND CONFER WITHIN TEN CALENDAR DAYS OF THE DATE OF THIS ORDER.

INFORMAL DISCOVERY CONFERENCE IS CALENDARED FOR AUGUST 11, 2023 AT 1:45 PM (REMOTE APPEARANCE PERMITTED).

DEFENDANT TO GIVE NOTICE, UNLESS ALL PARTIES WAIVE NOTICE.

IT IS SO ORDERED. 

DATE: July 10, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles