Judge: Fumiko Wasserman, Case: 22STCV05096, Date: 2023-11-16 Tentative Ruling
Case Number: 22STCV05096 Hearing Date: November 16, 2023 Dept: B
22STCV05096
NICHOLAS BOSKERS, et al. vs SOUTHERN CALIFORNIA EDISON COMPANY, A CORPORATION,
et al.
[TENTATIVE] ORDER
I. BACKGROUND
Plaintiff Nicholas Boskers
(“Plaintiff”) filed the operative Third Amended Complaint (“TAC”) on February
24, 2023, alleging causes of action for negligence and premises liability
against Defendants Southern California Edison Company (“SCE” or “Defendant”),
Morrell’s Electro Plating, Inc. (“Morrell’s”), EG Holdings, Inc. (“EG”),
Compton Steel, Co., Inc. (“Compton”) and Kyung Bok Yoon (“Yoon”). Plaintiff
seeks compensation for injuries he sustained when he fell through a skylight while
performing overhead electrical maintenance work.
II. ARGUMENTS
Plaintiff seeks to compel further responses from Defendant SCE to
Plaintiff’s Request for Production of Documents, Set Four, Nos. 1, 2, 3, 5, 6,
7, 8, 9, 10, 15, and 16. Plaintiff anticipates that SCE will attempt to present
an affirmative defense to the action by arguing that they are not liable for
Plaintiff’s injuries because SCE hired Herman Weissker Power, Plaintiff’s
employer, to perform the work. Plaintiff asserts that Defendant has a
nondelegable duty to ensure safety in the work performed. The discovery
requests at issue seek documents related to Defendant’s Contractor Safety
Management, safety protocols, and how subcontractors are evaluated for safety
compliance.
Defendant argues that the motion is improper based on a lack of
meet and confer efforts. Defendant also
contends that the motion is moot based on an agreement between the parties evidenced
by an email exchange.
Plaintiff argues that there have been extensive meet and confer
efforts, but the negotiations were unsuccessful, and that the email provided is
not evidence of an agreement mooting the motion to compel further responses.
III. LEGAL
STANDARDS
A party who receives a demand for production must respond
separately to each individual item requested with either a statement indicating
compliance, a representation that the party lacks the ability to comply, or an
objection. (Code Civ. Proc., § 2031.210, subd. (a).)
“A
representation of inability to comply with the particular demand for
inspection, copying, testing, or sampling shall affirm that a diligent search
and a reasonable inquiry has been made in an effort to comply with that demand.
This statement shall 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. The statement shall
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.” (Code Civ. Proc., § 2031.230.)
If the response is an objection,
it must “identify with particularity any document, tangible thing, land, or
electronically stored information falling within any category of item in the
demand to which an objection is being made” and “set forth clearly the extent
of, and the specific ground for, the objection. If an objection is based on a
claim of privilege, the particular privilege invoked shall be stated.” (Code
Civ. Proc., § 2031.240, subd. (b).)
¿ After receiving the response, the
party who demanded production may move for an order compelling further
responses if the party deems that (1) A statement of compliance with the demand
is incomplete; (2) A representation of inability to comply is inadequate,
incomplete, or evasive; and (3) An objection in the response is without merit
or too general. (Code Civ. Proc., § 2031.310, subd. (a).)¿The motion compelling
further responses shall “set forth specific facts showing good cause justifying
the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd.
(b).)
IV.
DISCUSSION
A. Meet and confer
Before
a motion to compel further responses to a request for production of documents
is filed, the moving party must declare they have met and conferred with the
opposing party in a manner demonstrating “a reasonable and good faith attempt
at an informal resolution of each issue presented by the motion.” (Code Civ.
Proc., § 2016.040.) Clare C. Lucich, counsel for Plaintiff, declares that on
July 6, 2023, a meet and confer letter was set addressing the discovery
responses at issue. (Decl. of Clare C. Lucich, ¶ 5.) After the letter,
additional back-and-forth communication occurred between the parties on August
14, August 25, August 30, September 4, September 19, October 3, October 4, and
October 9. (Id. at ¶¶
6-14.) These efforts demonstrate a good faith attempt at informal resolution of
the issues presented here. The Court finds that meet and confer requirements were
satisfied.
B. General principles of discovery
Turning to the scope of discovery.
Under the Civil Discovery Act,
“…
any party may obtain discovery regarding any matter, not privileged, that is relevant
to the subject matter involved in the pending action or to the determination of
any motion made in that action, if the matter either is itself admissible in
evidence or appears reasonably calculated to lead to the discovery of
admissible evidence. Discovery may relate to the claim or defense of the party
seeking discovery or of any other party to the action. Discovery may be
obtained of the identity and location of persons having knowledge of any
discoverable matter, as well as of the existence, description, nature, custody,
condition, and location of any document, electronically stored information,
tangible thing, or land or other property.” (Code Civ. Proc., §
2017.010.)
Any party may discover matter that
is not privileged and relevant to either the subject matter involved in the
action or is relevant to the determination of any motion made in the action, if
the matter is itself admissible or appears reasonably calculated to lead to the
discovery of admissible evidence.
“For
discovery purposes, information is relevant if it “might reasonably assist a
party in evaluating the case, preparing for trial, or facilitating
settlement....” (Weil & Brown, Cal.Practice Guide: Civil Procedure Before
Trial (Rutter 1994) Discovery, ¶ 8:66.1, p. 8C–1.) Admissibility is not the
test and information, unless privileged, is discoverable if it might reasonably
lead to admissible evidence. (Davies v. Superior Court (1984) 36 Cal.3d
291, 301.) These rules are applied liberally in favor of discovery (Colonial
Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)…”
(Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539,
1546.)
Here, Plaintiff sustained injuries
from a fall through a roof “after he had opened cutouts on SCE overhead
distribution transformers to eliminate potential backfeed of electricity into
the deenergized power line being worked on, pursuant to a direct instruction he
had received from a SCE Project General Supervisor.” (Motion, p. 1:5-8.)
Plaintiff himself was employed by Herman Weissker Power (“HWP”). HWP was hired
by Defendant SCE to perform electrical maintenance work. Plaintiff contends
that Defendant SCE is liable for Plaintiff’s injuries because “SCE retained
control over its contractor, Plaintiff’s employer HWP, and Plaintiff, by
instructing him as to the method and manner by which he must complete his work,
including how Plaintiff must protect himself and his crew from backfeed.”
(Motion, p. 1:8-11.)
C. Requests for Production of Documents, Nos. 1, 2, 3, 5, and 7
Requests for Production of
Documents, Nos. 1, 2, 3, and 5 seek SCE’s Contractor Safety Management
Standard, SCE’s request for proposal to HWP, Hazard Assessment and Safety
Plans, and the Contractor Handbook Checklists all for the job which Plaintiff
was performing when he fell. Requests for Production of Documents, No. 7 seeks
the Contractor Safety Management Standard CBT course for 2018 through present.
Defendant responded with identical
objections to Nos. 1, 3, 5, and 7 by stating “Objection. Vague and ambiguous.
Overbroad. Without waiving said objections, responding party is seeking
responsive documents. Discovery and investigation are ongoing.” (Plaintiff’s
Separate Statement, pgs. 5-7.) Defendant added additional objections to No. 2,
stating that the request sought “protected information and things.” (Id.
at p. 6:10-13.) These responses are insufficient.
The statement that Defendant is
seeking responsive documents is improper. “A representation of inability to
comply with the particular demand for inspection, copying, testing, or sampling
shall affirm that a diligent search and a reasonable inquiry has been made in
an effort to comply with that demand.” (Code Civ. Proc., § 2031.230.) Defendant
has a duty to make a diligent search prior to responding.
Additionally, the objections are
improper. The requests are not vague, ambiguous, or overbroad because they specify
with particularity certain documents sought and are narrowly tailored to seek
documents relevant to the job on which Plaintiff was injured. As to the
additional objection that No. 2 seeks protected information, this is not a proper objection. A party who
believes that a discovery request seeks confidential information must seek a
protective order from the court. (Columbia
Broadcasting System, Inc. v. Sup. Ct.,
(1968) 263 Cal.App.2d 12, 23.)
In
opposition, Defendant presents an email exchange between Defendant’s counsel
and Plaintiff’s paralegal which Defendant argues evidences an agreement about
the discovery at issue and moots the motion. In the email exchange, Defendant’s
counsel states,
“We agree to direct a search for responsive
documents and anticipate providing further, verified responses to the following
requests subject to and without waiving the stated objections in the prior
responses, however, consistent with the CCP, should any document or thing be
identified but will not be produced based on a stated objection/privilege, it
will be so stated and identified (not anticipated for these categories):
Requests Nos. 1, 2, 3, 5, 7, 9, 10, 15 & 16.” (Decl. of Amelia S. McDonald,
Exhibit A.)
Plaintiff’s
response is as follows:
“Regarding Nos. 1, 2, 3, 5, 7, 9, 10, 15 and 16 –
thank you for agreeing to provide further responses and documents. We are not
able to take the motion off calendar based only on your email, but if we
receive supplemental responses and production that resolve our concerns before
the hearing date, we would be happy to relieve the Court of that burden. We
just would need the opportunity to review the responses before taking it off to
ensure they are Code compliant and resolve the issues raised in the motion.”
(Decl. of Amelia S. McDonald, Exhibit A.)
Based
on this email exchange, the Court does not find an agreement was reached. Plaintiff informed Defendant’s counsel that
the motion would not be taken off calendar until code compliant responses were
received. Defendant failed to provide
code compliant answers. and the motion was
not withdrawn.
Defendant
also notes that parties have IDCs scheduled in this matter to discuss discovery
disputes. Defendant’s counsel states “other parties in this same case have on
calendar one or more Informal Discovery Conferences and it is unclear why this
motion is not subject to the same rules as the other parties.” (Decl. of Amelia
S. McDonald, ¶ 4.) Code of Civil Procedure, Section 2016.080, subdivision
(c)(2), governing Informal Discovery Conferences, was repealed as of January 1,
2023. Moreover, this Court [Department B] does not require an informal
discovery conference before bringing a motion to compel further discovery.
Based
on the foregoing, Defendant is compelled to provide further code-compliant
responses and production of documents in response to Plaintiff’s Requests for
Production, Set Four, Nos. 1, 2, 3, 5, and 7.
D. Requests for
Production of Documents, Nos. 6, 8, 9, 10, and 15
Requests for Production of
Documents, Nos. 6, 8, 9, 10, and 15 seek SCE Contractor Safety Forums held from
2015 to present, training documents for SCE representatives with
responsibilities related to Contractor Safety as of February 2020, safety
requirements generated by SCE and anyone on the SCE Safety Management Team for
the job which Plaintiff was working when he fell, and SCE’s Record Retention
Schedule for Contractor Safety Management records. (Plaintiff’s Separate
Statement, pgs. 11-12.)
Defendant responded with nearly
identical objections to each request by stating that they were vague,
ambiguous, overbroad, irrelevant, and overburdensome. The Court finds that the
requests are not vague, ambiguous, or overbroad. Defendant does not identify
any particular terms within the requests that it believes are vague or
ambiguous. Taken as a whole, the requests are direct, identify specific
documents sought, and include year limits.
As to the
objections that the requests are irrelevant, for discovery purposes,
information is relevant if it “might reasonably assist a party in evaluating
the case, preparing for trial, or facilitating settlement....” (Weil &
Brown, Cal.Practice Guide: Civil Procedure Before Trial (Rutter 1994)
Discovery, ¶ 8:66.1, p. 8C–1; Gonzalez v. Superior Court, supra,
33 Cal.App.4th at p. 1546.) Though Plaintiff is directly employed by HWP,
Plaintiff avers that SCE is liable for Plaintiff’s injuries because SCE
maintains a duty to control the safety of workers. The documents sought relate
to safety plans, training, and management of worker safety. The documents are
thus relevant because they may lead to admissible evidence that SCE owes a duty
and/or SCE’s control over worker safety.
Defendant also
objects that the requests are overburdensome. As to request No. 6, the email
exchange presented by Defendant’s counsel evidences an agreement to limit the
scope of the request from 2017 through 2021. (Decl. of Amelia S. McDonald,
Exhibit A.) Plaintiff also agreed to Defendant’s proposed limitation on request
No. 8,
“We
can agree to provide a further response to Request No. 8, subject to the
following and made subject to and without waiving the stated objections in the
prior responses, however, consistent with the CCP, should any document or thing
be identified but will not be produced based on a stated objection/privilege,
it will be so stated and identified (not anticipated for these category). I
will direct a search for, and anticipate to provide a further response that
includes documentation that includes responsive documents such as the
Contractor Safety Management Standard computer based training (CBT) (see
plaintiff’s Request No. 7). Additionally, I will direct a search for
additional, responsive documents, if any, that “reflect the training” as
described in the Contractor Safety Management Standard, however to the extent
that the request calls broadly for any and all training - which could include
anything from sexual harassment training to fire drills in office buildings,
etc., etc. – for the entire course of an employee’s employment that ever had
“responsibilities related to contractor safety” which is any employee or
contractor ever and always because everyone has a right on a jobsite to “say
something if they see something,” it is overbroad and not specifically narrowed
to Mr. Bosker’s case and in overburdensome. So, I will direct the search
described herein, but with the proposed agreement to narrow the request as
stated above which generally is responsive documents, if any, that “reflect the
training” as described in the Contractor Safety Management Standard.” (Ibid.)
Beyond these agreed to
limitations, “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.” (Code
Civ. Proc., § 2017.020, subd. (a).) Here, Defendant fails to provide any
explanation of the burden that each request would impose. Plaintiff has
provided their theory of the case and argument that the documents requested
will likely lead to evidence that demonstrates SCE’s obligation to ensure
worker safety. The Court does not find that the burden clearly outweighs the
likelihood that the information sought will lead to admissible evidence. The
objection that the requests are overburdensome cannot stand.
Based
on the foregoing, Defendant is compelled to provide further code-compliant
responses and production of documents in response to Plaintiff’s Requests for
Production, Set Four, Nos. 6, 8, 9, 10,
and 15.
E. Requests for Production of Documents, No. 16
Requests for Production of
Documents, No. 16, seeks “ALL DOCUMENTS that reflect any changes implemented to
SCE’s practices or procedures regarding elimination of potential sources of
backfeed from 2015 to present.” (Plaintiff’s Separate Statement, p. 17:10-12.)
Defendant’s response states “Objection. Vague and ambiguous. Overbroad. Calls
for information and things protected by the attorney client privilege and
attorney work product doctrine. Calls prematurely for expert information and
things.” (Id. at p. 17:13-16.)
As to the
objection that the request is vague, ambiguous, and overbroad, Plaintiff argues
that he was performing work in compliance with SCE’s procedures to eliminate
potential sources of backfeed at the direction of SCE’s Project General
Supervisor, Alfonzo Stubbs, when he fell through the roof. (Decl. of Clare H.
Lucich, ¶ 27 and Exhibit O.) Mr. Stubbs deposition regarding the policies to eliminate
backfeed and his instructions to Plaintiff conflict with Plaintiff’s deposition.
(Decl. of Clare H. Lucich, ¶ 29 and Exhibit N.) Request No. 16 is aimed at
resolving this conflict. The request is not vague, ambiguous, or overbroad
because it seeks specific policies and procedures relevant to a factual
conflict in the case and is narrowed by seeking documents evidencing changes
between 2015 and the present.
As to
attorney-client privilege and the work product doctrine, “if an objection is
based on a claim of privilege or a claim that the information sought is
protected work product, the response shall provide sufficient factual
information for other parties to evaluate the merits of that claim, including,
if necessary, a privilege log.” (Code Civ. Proc., §2031.240, subd. (c)(1).) Here,
Defendant’s objection provides no privilege log and does not give any factual
information as to why the documents sought would fall under the attorney-client
privilege or work product doctrine.
As to the objection that the
request prematurely calls for expert information. The Court disagrees. The
request only seeks documents reflecting implemented policies and procedures on
eliminating backfeed. It is unclear why the documents should be considered
expert information if they reflect policies that contractors were required to
follow. While an argument could be made that interpreting why the policies
changed over the years may require expert opinion, the discovery request made
does not seek these opinions. Defendant also failed to present any argument
supporting the assertion that the documents are expert information.
Based
on the foregoing, Defendant is compelled to provide further code-compliant
responses and production of documents in response to Plaintiff’s Requests for
Production, Set Four, No. 16.
V. CONCLUSION
Plaintiff’s motion
to compel Defendant SCE to provide further responses to Requests for Production
of Documents, Set Four, is GRANTED. SCE
is compelled to provide further code-compliant responses and production of
documents in response to Plaintiff’s Requests for Production of Documents, Set
Four, Nos. 1, 2, 3, 5, 7, 9, 10, 15, and 16. SCE is compelled to provide
further code-compliant responses and production of documents in response to
Plaintiff’s Requests for Production, Set Four, No. 6, as modified by the
parties to request production for the years of 2017 through 2021, and No. 8,
limited in scope as agreed to by the parties in accordance with the October 26,
2023, email presented as Exhibit A to the Declaration of Amelia S. McDonald. SCE
must provide these responses within 20 days of entry of this order.