Judge: Gregory Keosian, Case: 22STCV40378, Date: 2023-09-25 Tentative Ruling

Case Number: 22STCV40378    Hearing Date: September 25, 2023    Dept: 61

Defendants City of Fontana and Andrew Larson’s Motion to Stay Discovery is DENIED.

Plaintiff Xinwu Cheng’s Motions to Compel Responses and Further Responses to Form Interrogatories from Defendant City of Fontana are GRANTED as to interrogatories No. 15.1 and 17.1, as they pertain to Affirmative Defenses No. 7, 8, 11, 13, 14, and 18–10, and Requests for Admission No. 21–22. The motion is DENIED as to the same interrogatories, as they pertain to Affirmative Defense No. 15 and Request for Admission No. 20. The motion to compel is DENIED as moot. Sanctions are DENIED.

Plaintiff Xinwu Cheng’s Motion to Compel Compliance with Statements of Compliance from Defendant City of Fontana is GRANTED as to Requests No. 7 and 8, and otherwise DENIED. No sanctions are awarded.

I.      MOTION TO STAY DISCOVERY

“[O]n motion and for good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.” (Code Civ. Proc., § 2019.020, subd. (b).)

Defendants City of Fontana and Andrew Larson (Defendants) seek an order staying discovery in this action in order to preserve materials privileged by the “official information” doctrine, pending resolution of an ongoing criminal investigation involving Plaintiff Xinwu Cheng (Plaintiff). That privilege is enacted in Evidence Code § 1040, which defines “official information” as “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made,” and which grants public entities “a privilege to refuse to disclose official information, and to prevent another from disclosing official information.” (Eid. Code § 1040, subd. (a), (b).) However, to claim the privilege effectively, its disclosure must either be forbidden by state or federal statute, or the following must apply:

Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.

(Evid. Code § 1040, subd. (b)(2).)

Defendants present the case County of Orange v. Superior Court (2000) 79 Cal.App.4^th 759. In that case, two plaintiff parents were publicly identified as suspects of a police investigation into the homicide of their child. (County of Orange, supra, 79 Cal.App.4^th at p. 762.) The plaintiffs filed suit against the sheriff’s department for defamation, conversion, and civil rights complaints. (Ibid.) Plaintiffs served discovery, seeking 25 categories of documents that the court summarized as effectively requesting “the sheriff’s entire investigative file” relating to their child’s murder. (Id. at p. 762.) When the sheriff’s department objected, citing Evidence Code § 1040, the plaintiffs moved to compel, and the trial court granted the motion, subject to a protective order, after conducting an in-camera review of the file. (Id. at pp. 762–763.) When the county sought writ review, the appellate court reversed the order, holding, “we conclude that the contents of police investigative files sought in civil discovery must remain confidential so long as the need for confidentiality outweighs the benefits of disclosure in any particular case.” (Id. at p. 765.)

The court found “compelling” the county’s interest in “solving homicides and bringing killers to justice,” and reasoned that to disclose investigative information to suspects through civil litigation “will enable them to invent stories, explain away evidence thus far gathered, and intimidate or otherwise influence potential witnesses.” (Id. at p. 766.) The court rejected the plaintiffs’ argument that the murder investigation had effectively stalled and was no longer ongoing, reasoning that “there is no limitations period for murder,” and that a four-year investigative period for such a crime was “common enough.” (Id. at p. 767. ) The court concluded that the interests of the county in solving the murder outweighed the plaintiffs’ interest in obtaining the discovery sought, “at least at the time this matter was considered below,” i.e. “less than a year after the civil action was filed.” (Id. at p. 767.) The court stated that the documents sought need not be privileged forever, and that “[t]he appropriate remedy in this case is for the trial court to stay discovery of investigative information in the civil action in order to allow the sheriff’s department the necessary time to investigate.” (Id. at p. 769.) If the court later found that “the trail has grown cold and there is no reasonable probability the case will be solved, “ the court could determine that there no longer remained enough interest in “protecting the investigative file any longer,” meaning the plaintiffs could be granted “limited access to that information.” (Id. at p. 768, italics in original.)

Here, Defendants present the declaration of Mario Martinez, a Fontana police officer assigned as a task force officer to the Drug Enforcement Administration (DEA) Southwest Borders Task Force. (Martinez Decl. ¶ 1.) He states that the DEA is conducting an ongoing criminal investigation into narcotics trafficking in Los Angeles County, and that “[t]he investigation involves Mr. Cheng as well as other individuals.” (Martinez Decl. ¶ 2.) Although Plaintiff has not been criminally charged, Martinez anticipates that “[a] decision on whether to recommend charges should take place by the end of this year or beginning of next year.” (Martinez Decl. ¶ 4.)

Plaintiff in opposition argues that Defendants’ motion is vague as to the scope of relief they are seeking, whether a stay of documentary discovery or of all discovery in this action. (Motion at p. 2.) Plaintiff argues that Martinez lacks personal knowledge of any charging decision to be made in the investigation at issue, since charging decisions are not made by officers. (Opposition at pp. 2–3.) Plaintiff further argues that Defendant’s motion does not identify any documents sought that would jeopardize the ongoing criminal investigation, or to which the privilege applies. (Opposition at pp. 4–5.)

Defendants have not made the showing that is needed for the stay of discovery that they seek here. As plaintiff argues, Defendants have not identified the subject discovery which they contend offends the privilege, and they have not articulated why a stay of all discovery in this matter is appropriate, as opposed to a more targeted form of relief.

More importantly, the case authority they rely upon concerned suspects in an ongoing murder investigation seeking all the documents related to that investigation. But here, Plaintiff does not seek all documents related to the narcotics investigation identified by Officer Martinez, but only to those documents related to his August 2022 arrest, which as yet has resulted in no charges against him. Indeed, although Officer Martinez testifies that the ongoing investigation involves Plaintiff, he does not indicate that the August 2022 arrest, or any documents relied upon or resulting from it, concern the ongoing investigation, or vice versa. Defendants have given this court no basis to conclude that any discovery sought implicates an ongoing investigation, and thus no basis to conclude that a stay is proper.

The motion to stay is therefore DENIED.

II.             MOTION TO COMPEL COMPLIANCE

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 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.” (Code Civ. Proc. § 2031.320, subd. (a).)

Plaintiff seeks to compel the compliance of Defendant City of Fontana with its statements of compliance issued in response to Requests for Production No. 1–3, 5–8, 11–14, 17 and 18. Defendant responded to these requests with various objections, sometimes with objections based on unspecified “privilege,” but offered in each instance to “produce all nonprivileged documents.” (Motion Exh. D.)

Plaintiff’s motion is defective, for its primary objective is the overruling of objections based on privilege pursuant to which Defendant qualified its responses, not the enforcement of bona fide statements of compliance. Plaintiff’s motion is based on the contention that Defendants failed to comply with their obligations with respect to withholding documents pursuant to an objection under Code of Civil Procedure § 2031.240, as they never identified the particular privilege applicable to any documents, nor the documents covered by the privilege. Although Plaintiff acknowledges that Defendant produced a privilege log identifying specific records subject to specific privileges on June 12, 2023, near a month after the initial responses were produced, Plaintiff further argues that any objections were waived by the failure to assert them in proper form in the initial responses. (Motion at pp. 4–5.)

The record thus reflects no agreement to produce documents or statements of compliance for the bulk of the material sought here. Plaintiff’s motion is in reality a defective motion to compel further responses to the requests at issue under Code of Civil Procedure § 2031.310 (which is never cited in the motion) and served without a separate statement identifying the different documents and responses at issue. (CRC Rule 3.1345, subd. (a).)

Plaintiff identifies only two categories, Requests No. 7 and 8, which they contend are outside the ambit of Defendant’s privilege log and therefore subject to a statement of compliance. Indeed, the privilege log produced by Defendant on June 12, 2023, identifies the requests to which it applies, and does not identify Requests No. 7 and 8, which respectively sought all documents shown to Plaintiff during his arrest, and all documents evidencing that Plaintiff was apprised of his Miranda rights on the date in question. (Motion Exhs. C, L.) Despite not being mentioned in Defendant’s privilege log, the responsive documents were not provided in Defendant’s production. (Emmitt Decl. ¶ 13, Exh. G.) Accordingly, a motion to compel compliance is properly brought only as to these requests.

The motion to compel compliance is GRANTED as to Requests No. 7 and 8, and is otherwise DENIED. No sanctions are awarded.

III. MOTIONS TO COMPEL & COMPEL FURTHER

“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.”  (Code Civ. Proc., § 2030.010(a).) If a propounding party is not satisfied with the response served by a responding party, the former may move the court to compel further interrogatory responses.  (Code Civ. Proc., § 2030.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)  The propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or that the responding party asserted objections that are either without merit or too general.  (Code Civ. Proc., § 2030.300(a)(1)–(3); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 403.)

Additionally, a propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

Plaintiff moves to compel responses to Form Interrogatory No. 15.1, which sought facts and evidence concerning Defendant’s affirmative defenses, but for which Defendant provided no response as to its affirmative defenses numbered 2–6, 9–10, 12, 16, and 21–26 in its answer. (Le Decl. ¶ 6, Exh. C.) Defendant in opposition contends that it hereby withdraws those defenses, rendering the motion moot. (Opposition at p. 1.) Plaintiff in reply seeks an award of sanctions for the expense of bringing the motion. (Reply at pp. 2–3.)

Plaintiff’s motion to compel further responses also concern Form Interrogatory No. 15.1, but directed toward different defenses. Plaintiff identifies Defendant’s responses as to affirmative defenses No. 7, 8, 11, 13–15, and 18–20, which Plaintiff contends are factually bereft, and do not identify individuals with pertinent knowledge. (Separate Statement.) Plaintiff further identifies Defendant’s response to Form Interrogatory No. 17.1, which sought facts and evidence supporting the denial of requests for admission, specifically as it addressed Requests No. 20–22, again on the grounds that the responses are factually bereft. (Separate Statement.)

Some of these responses are already compliant and do not warrant further response. These include Form Interrogatory No. 15.1, as it pertains to Affirmative Defense No. 15, and Form Interrogatory No. 17.1 as it pertains to Request for Admission No. 20. As to Affirmative Defense No. 15, Plaintiff sought facts supporting the defense of consent, to which Defendant responded that “Plaintiff verbally consented to the search of his vehicle and home.” (Separate Statement at p. 6.) Plaintiff identifies no defect in this response. And with respect to Request for Admission No. 20, which concerned Defendant’s compliance with policies regarding cash seizure, Defendant responded by identifying the relevant policy and stating how it complied. (Separate Statement at p. 9.) The only defect that Plaintiff identifies is the failure to describe compliance with a different policy relating to verbal consent to search. (Separate Statement at pp. 9–10.) Thus the motion is DENIED as to Form Interrogatories No. 15.1 and 17.1 as they relate to Affirmative Defense No. 15 and Request for Admission No. 20.

Further responses are required, however, as to the remaining requests. A number of these responses, though called upon to provide facts supporting particular positions, provide no facts save a conclusory recitation of the defense itself. These responses are for Interrogatory No. 15.1 as it relates to Affirmative Defenses No. 7, 11, 13, 14, 18, 20, and Requests No. 21–22. When asked to state the officers had a good faith belief in the propriety of their actions, Defendant cites only a conclusory invocation of probable cause, without identifying any supporting underlying facts. (Separate Statement at p. 3.) When asked to state the basis for the defense that Defendant violated no law, Defendant responds by stating that it “did not interfere with Plaintiff’s rights by threats, intimidation or coercion sufficient to constitute a claim under the Bain Act.” (Separate Statement at p. 5.) The same pattern repeats itself through the above responses.

Further responses are also necessary to Interrogatory No. 15.1 as to defenses No. 8, 14, and 18–20. When asked to identify witnesses with knowledge of the contentions, Defendant stated, “There are numerous individuals working for the City with this knowledge. Upon receipt of a person most qualified under C.C.P. § 2025.230, the City will produce a deponent with knowledge regarding this issue.” This response was not useful or compliant with Defendant’s discovery obligations.

An interrogatory response “shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc. § 2030.200, subd. (a).) “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Code Civ. Proc., § 2030.220, subd. (c).) If Defendant lacks information to support the defenses at issue, it could not uphold its discovery obligations by stating that “discovery is ongoing” without performing a diligent inquiry and providing a straightforward explanation of the information available to it.

The motion to compel further is therefore GRANTED as to Interrogatories No. 15.1 and 17.1, as they pertain to Affirmative Defenses No. 7, 8, 11, 13, 14, and 18–10, and Requests for Admission No. 21–22. The motion is DENIED as to the same interrogatories, as they pertain to Affirmative Defense No. 15 and Request for Admission No. 20.

The motion to compel is DENIED as moot.

IV. SANCTIONS

Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further response to interrogatories, requests for production of documents, or requests for admission, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).)

Plaintiff seeks $4,155.00 in sanctions for the motion to compel further, representing 11.7 hours of attorney work at $350 per hour, plus a $60 filing fee. (Le Decl. ¶ 20.) Plaintiff also seeks $2,195.00, representing 6.1 hours of attorney work at $350 per hour and a $60 filing fee for the motion to compel. (Le Decl. ¶ 15.)

Sanctions Denied.