Judge Israel Claustro, Case 22D007741 2023-08-18 Tentative Ruling

Judge: Israel Claustro, Case: 22D007741, Date: 2023-08-18 Tentative Ruling

MOTION - COMPEL / COMPLIANCE

Moving Party: Respondent Teresa Calvert (MP or Teresa)

Responding Party: Petitioner Lisa Carriger (RP or Lisa)

Legal Authority 

Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, if the matter is admissible or appears reasonably calculated to lead to the discovery of admissible evidence. (C.C.P. § 2017.010.) A motion to compel further response may be made when the responses provided are incomplete, evasive, or where objections are meritless/too broad. (C.C.P. §§ 2030.300, 2031.010(a), 2031.010(b), 2033.290.)       

Procedural Analysis   

Timeliness  

RP served responses to RPD2 on 4/21/23. The deadline is within 45 days. 4/21/23 + 45 days = 6/5/23. This motion was filed and served prior by 6/5/23. Therefore, the motion is timely.

Separate Statement  

Motion to compel further responses must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted.  (Cal. Rules of Court, rule 3.1345(a).) A trial court is well within its discretion to deny motion to compel discovery based on the party’s failure to comply with the separate statement requirements of Cal. Rules of Court, rule 3.3145(a). (Mills v. U.S. Bank (2008) 166 Cal. App. 4th 871, 893 [holding failure to include separate statements required by California Rules of Court provided justification of trial court’s denial of discovery motion].)      

This requirement is satisfied.   

Meet & Confer      

A motion for order compelling further discovery responses must include a declaration showing reasonable and good faith attempt at an informal resolution of the issues presented by the motion. (C.C.P. §§ 2030.300(b)(1), 2016.040, 2031.310(b)(2), 2033.290(b)(1).)        

The statute requires that there be “a serious effort at negotiation and informal resolution,” and “argument is not the same as informal negotiation”—there should be more than a mere attempt by the discovery proponent to persuade the objector of the error of his ways. (Townsend v. Sup. Ct. (1998) 61 Cal.App.4th 1431, 1437-38; Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) There should be more than bickering with opposing counsel; rather, the law requires that counsel attempt to talk over the matter, compare their views, consult, and deliberate. (Clement, supra, at 1294.) Some effort is required in all cases: there is no exception based on speculation that prospects for informal resolution may be bleak. (Townsend, supra, at 1437-38.) However, the level of effort that is reasonable differs with the circumstances and the prospects for success. (Obregon v Sup. Ct. (1998) 67 Cal.App.4th 424, 432–433). The judge should consider, from the perspective of a reasonable person in the discovering party's position, whether additional effort appeared likely to be successful. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293–1294.)  (Cal. Judges Benchbook Civ. Proc. Discovery § 2.25.)  

Level of effort at informal resolution of discovery dispute which satisfies “reasonable and good faith attempt” standard depends upon circumstances—in larger, more complex discovery context, greater effort at informal resolution may be warranted, while in simpler, or more narrowly focused case, more modest effort may suffice. (Obregon, supra, at 431.) Thus, relevant factors in this analysis include history of the litigation, nature of interaction between counsel, nature of issues, type and scope of discovery requested, and prospects for success. (Obregon, supra, at 435.) 

A single letter, followed by a response which refuses concessions, might in some instances be an adequate attempt at informal resolution of discovery dispute prior to filing of a motion to compel, especially when legitimate discovery objective is demonstrated. (Obregon, supra, at 433.) 

Time available before filing deadline, extent to which responding party was complicit in the lapse of available time, and evaluation of whether, from perspective of a reasonable person in position of discovering party, additional effort appeared likely to bear fruit, are relevant factors in determining whether adequate attempt at informal resolution of discovery dispute has been prior to filing of motion to compel. (Obregon, supra, at 432.) 

Finding that greater effort informal resolution of discovery dispute should have been made by plaintiff before she filed a motion to compel was supported by evidence that plaintiff propounded grossly overbroad interrogatories, that plaintiff simply sent a brief letter, late in relevant time period, upon receiving defendant’s expectable objections, and that plaintiff made no attempt to explain why interrogatories of such breadth were proper in this case. (Obregon, supra, at 432.) 

When appropriate, the party whose efforts at informal resolution of discovery dispute were found wanting may be assessed with monetary sanctions. (Obregon, supra at 434-35.) 

This requirement is satisfied.         

MP's 4 M&C letters are over 22 pages and clearly point out the deficiencies, provide further extensions to their deadlines, and offer a telephonic M&C. RP's responses, where offered at all, are completely uncooperative and contains irrelevant statements not supported by legal authority.

It is clear that no further M&C efforts would have been reasonable here. This requirement is satisfied.         

Specific Facts      

Specific facts justifying the documents sought by the discovery must be in a verified declaration to constitute evidence on which the court may rely. (Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 224 [directing trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production).  See also Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216, 224 (identifying manner for establishing good cause under Calcor) “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how 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.”      

This requirement is satisfied.  MP provides both general support and specific support for each item in the moving papers, declaration, and Separate Statement.     

Burden     

If a timely motion to compel has been filed, the burden is on the responding party to justify any objections/failure to fully answer. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221; Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255.)     

The burden is on RP to justify their failure to respond/their objections. 

RP's opposition is insufficient and does not address any of the numerous, well-presented deficiencies that MP's Separate Statement points out.

RP has not met her burden to justify her objections and failure to answer.

Substantive Analysis

Responses to Discovery      

The court’s ruling on a motion to compel further responses usually is based on consideration of the following factors: The relationship of the information sought to the issues framed in the pleadings; the likelihood that disclosure will be of practical benefit to the party seeking discovery; the burden or expense likely to be encountered by the responding party in furnishing the information sought. (Columbia Broadcasting System, Inc. v. Sup.Ct. (1968) 263 Cal.App.2d 12, 19; Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial at ¶ 8:1136 (The Rutter Group 2022).)        

A party cannot plead ignorance to information which can be obtained from sources under his control. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.) Control includes possession a legal right to obtain documents requested upon demand. (Negro v. Sup. Ct. (2014) 230 Cal.App.4^th 879, 901.)       

Although relevance is typically construed liberally (See Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169), the standard is more stringent when a party is attempting to discover documents which are constitutionally protected by the right to privacy. When the information sought to be discovered impacts a person’s constitutional right to privacy, limited protections come into play for that person. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) The protections cover both a person’s personal and financial matters. (Id.) The court must balance competing rights — the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy — in determining whether the information is discoverable. (Id.) The party asserting a privacy right must establish (1) a legally protected privacy interest, (2) an objectively reasonable expectation of privacy in the given circumstances, and (3) a threatened intrusion that is serious. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370-71.) The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.)       

Code Compliant Responses to RPDs     

The responding party shall respond separately to each demanded item with any of the following: a statement that the party will comply ((a)(1)), a representation that the party lacks ability to comply ((a)(2)), or an objection ((a)(3)). (C.C.P. § 2031.210(a)(1)-(3).) A statement that the party will comply pursuant to (a)(1) shall also state whether the production shall be in whole or in part; and shall state that all documents demanded that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. (C.C.P. § 2031.220.) A representation of inability to comply pursuant to (a)(2) shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply; shall specify whether the inability to comply is because the item never existed, was destroyed, lost, misplaced, stolen, has never been, or is no longer in the possession, custody or control of the responding party; and shall set forth the name and address of any person or organization known or believed to have possession, custody or control of that item. (C.C.P. § 2031.230.) If only part of the item is objectionable pursuant to (a)(3), the response shall contain a statement of compliance pursuant to (a)(1) or a representation of inability to comply with the remainder of the item pursuant to (a)(2). (C.C.P. § 2031.240(a).) If the entire item is objected to pursuant to (a)(3), the response shall identify with particularity any document falling within any category of item in the demand to which an objection is being made; set forth clearly the extent and ground for the objection and any privilege shall be expressly asserted; if an objection is based on a claim of privilege or attorney-work product doctrine, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. (C.C.P. § 2031.240(b)(1)-(2), (c)(1)-(2).)      

RPD No. 4, 5

This RPD seeks documents that support any claims of DV perpetrated by MP against RP/child. RP's response is entirely an objection—vague/ambiguous as to “claims of DV” and asserts a privilege as to any response related to the minor child is an invasion of privacy. RP goes on to indicate that no documents will be provided. Since the entire item is objected to pursuant to (a)(3), the response shall:

- identify with particularity any document falling within any category of item in the demand to which an objection is being made;

- set forth clearly the extent and ground for the objection and any privilege shall be expressly asserted;

- if an objection is based on a claim of privilege or attorney-work product doctrine, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. (C.C.P. § 2031.240(b)(1)-(2), (c)(1)-(2).)      

RP's response does none of these things. There’s nothing vague/ambiguous about “claims of DV”—it’s clearly referring to RP's claims of DV in the pending action. Also, the asserted “minor child privilege” has no legal basis. Also, any privacy right asserted must be balanced with the needs in this matter, and the child’s privacy rights would likely be outweighed by the necessity of evaluating DV claims as to custody and visitation. This response is not code-compliant, the objections are without merit, and therefore the Court GRANTS the motion to compel as to this item.

RPD No. 5

This RPD seeks writings supporting RP's claims that MP has been abusive to RP/minor child. RP's response is entirely an objection—vague/ambiguous, duplicative, argumentative, unintelligible, and asserts a privilege as to any response related to the minor child is an invasion of privacy. RP goes on to indicate that no documents will be provided. Since the entire item is objected to pursuant to (a)(3), the response shall:

- identify with particularity any document falling within any category of item in the demand to which an objection is being made;

- set forth clearly the extent and ground for the objection and any privilege shall be expressly asserted;

RP's response does none of these things. There’s nothing vague/ambiguous about “claims of DV”—it’s clearly referring to RP's claims of DV in the pending action. Also, the asserted “minor child privilege” has no legal basis. Any privacy right asserted must be balanced with the needs in this matter, and the child’s privacy rights would likely be outweighed by the necessity of evaluating DV claims as to custody and visitation. This response is not code-compliant, the objections are without merit, and therefore the GRANTS the motion to compel as to this item. Although it should be noted this does appear duplicative to no. 4, above.

RPD No. 6

This RPD seeks documents that substantiate that MP has perpetrated abuse on RP and the minor child from 01/01/18 through the date of production. RP's response is entirely an objection—overbroad, outside the relevant scope of time at issue, and invasion of minor’s privacy.

Since the entire item is objected to pursuant to (a)(3), the response shall:

- identify with particularity any document falling within any category of item in the demand to which an objection is being made;

- set forth clearly the extent and ground for the objection and any privilege shall be expressly asserted;

RP's response does none of these things. There’s no authority that says “old” incidents of DV are irrelevant to custody/visitation. Also, the asserted “minor child privilege” has no legal basis. Also, any privacy right asserted must be balanced with the needs in this matter, and the child’s privacy rights would likely be outweighed by the necessity of evaluating DV claims as to custody and visitation. This response is not code-compliant, the objections are without merit, and therefore the Court GRANTS the motion to compel as to this item.

RPD No. 7

This RPD seeks documents that support RP's claim that she is the better custodial parent for the child. RP objects as to vague/ambiguous, “better custodial parent” is undefined and unintelligible.

Since the entire item is objected to pursuant to (a)(3), the response shall:

- identify with particularity any document falling within any category of item in the demand to which an objection is being made;

RP's response does not do this. Further, there’s nothing vague/ambiguous about the question, as it’s clearly referring to RP's position that she should have custody of the minor in the pending action. This response is not code-compliant, the objections are without merit, and therefore the Court GRANTS the motion to compel as to this item.

RPD No. 9, 10, 11, 12, 13

This RPD seeks communications with law enforcement agencies/personnel/the DA/OC FCS/DCFS/Witness Protection from 01/01/09 through the date of production. RP responds that after reasonable search and reasonable inquiry, she is unable to comply because responsive documents have never existed. Also, objects as to the scope of time is overbroad, and objects as to “minor child privilege.” As to the inability to comply, the response must:

- shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply;

- shall specify whether the inability to comply is because the item never existed, was destroyed, lost, misplaced, stolen, has never been, or is no longer in the possession, custody or control of the responding party;

- and shall set forth the name and address of any person or organization known or believed to have possession, custody or control of that item. (C.C.P. § 2031.230.)

To the extent the response is that the documents have never existed, the response would have been code-compliant and sufficient. The objections are meritless however, as there’s no authority that “old” DV is irrelevant to custody, and law enforcement records are relevant to custody. Also, again, the “minor child privilege” doesn’t exist and is not sufficiently supported. To the extent there are responsive documents available that RP didn’t provide because of the objections, the Court GRANTS the motion to compel as to these items.

RPD No. 15

This RPD seeks communications with 3rd parties re: any claims that MP has abused RP or the minor from 1/1/18 through date of production. RP objects, claiming third party privacy rights. RP then indicates after a reasonable inquiry and diligent search, she’s unable to comply because such documents have never existed. RP also objects as to “minor child’s privilege.”

To the extent the response is that the documents have never existed, the response would have been code-compliant and sufficient. The objections are meritless. Again, the “minor child privilege” doesn’t exist and isn’t sufficiently supported. Any privacy rights need to be substantiated by the claiming party. Further, it’s likely that any privacy rights would be outweighed by the custody needs in this case or could be sufficiently alleviated by redacting the identifying info of the 3rd party. To the extent there are responsive documents available that RP didn’t provide because of the objections, the Court GRANTS the motion to compel as to this RPD.

RPD No. 17

This RPD seeks documents from school personnel (lists teachers, therapists, psychologists, case managers) re: the minor child’s educational needs from 1/1/18 to date of production. RP's response objects as to irrelevant, compound, unintelligible. RP then confirms reasonable inquiry and diligent search but states she’s unable to comply because the documents aren’t in her “dominion, custody, and control.” As to the inability to comply, the response:

- shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply;

- and shall set forth the name and address of any person or organization known or believed to have possession, custody or control of that item. (C.C.P. § 2031.230.)

The response is not code compliant as it doesn’t set forth the contact info for those believed to have possession, custody, control. Further, RP has access to those documents as the custodial parent, and therefore they are in her custody and control. Further, the objections are irrelevant—it’s not compound because it can be easily compiled into one word (“school personnel” instead of listing the individual types of school employees) and there’s nothing unintelligible about the question. Further, educational needs from the school are relevant to custody issues, at least for discovery purposes. The Court GRANTS the motion to compel as to this item.

RPD No. 18, 19

This RPD seeks documents from the child’s medical visits from 01/01/18 through date of production. RP objects as to compound, irrelevant, overbroad, unreasonably cumulative, and cites the “minor child privilege.” Since the entire item is objected to pursuant to (a)(3), the response shall:

- identify with particularity any document falling within any category of item in the demand to which an objection is being made;

- set forth clearly the extent and ground for the objection and any privilege shall be expressly asserted;

RP's response fails on all counts. The objections are meritless. It’s not compound as it can be easily compiled into one word (“medical professionals” instead of listing specific types of medical professionals). Also, the child’s medical records are relevant to custody and possibly domestic violence alleged, at least for discovery purposes. Again, there’s no support for the “minor child privilege.” The Court GRANTS the motion to compel as to this item.

RPD No. 20, 21

This RPD seeks documents from medical professionals that reflect any diagnoses made for the minor from 01/01/18 through date of production. RP's response is objection as to vague, ambiguous, irrelevant, overbroad, unreasonably cumulative, duplicative. RP makes a reference to the minor child privilege. RP then confirms reasonable inquiry and a diligent search but states she can’t comply because responsive documents have never existed.

To the extent the response is that the documents have never existed, the response would have been code-compliant and sufficient. The objections are meritless however, as there the child’s medical diagnoses are relevant to custody and domestic violence allegations, at least for discovery purposes, and there’s nothing prima facie vague, ambiguous, unreasonably cumulative or duplicative about the item. Again, there’s no support for the minor child privilege. The Court GRANTS the motion to compel as to this item.

RPD No. 23

This RPD seeks documents regarding any communications between RP and minor child about MP/the instant case. RP's response objects as to outside the scope, vague, ambiguous, irrelevant, overbroad, unreasonably cumulative. RP then confirms reasonable inquiry and diligent search but indicates she’s unable to comply as responsive documents have never existed.

To the extent the response is that the documents have never existed, the response would have been code-compliant and sufficient. The objections are meritless however, as the documents sought can go to custody/visitation (e.g., “coaching” the child, gatekeeping, etc.) at least for discovery purposes, and there’s nothing prima facie vague, ambiguous, unreasonably cumulative or duplicative about the item. The Court GRANTS the motion to compel as to this item.

RPD No. 24, 25

This RPD seeks documents supporting RP's contention that MP is a hoarder and her residence is “not habitable and/or insufficient for the minor child to reside there.” RP objects as to vague, but then indicates she “will produce those documents in her dominion custody and control.”

- A statement that the party will comply pursuant to (a)(1) shall also state whether the production shall be in whole or in part; and shall state that all documents demanded that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. (C.C.P. § 2031.220.)

The response fails on this count. It is not code compliant.

- If only part of the item is objectionable pursuant to (a)(3), the response shall contain a statement of compliance pursuant to (a)(1) or a representation of inability to comply with the remainder of the item pursuant to (a)(2). (C.C.P. § 2031.240(a).)

The response also fails on this count. It is not code compliant. Also, there’s nothing vague about the terminology used. Therefore, the Court GRANTS the motion to compel as to this item.

Sanctions 

The court shall impose a monetary sanction under Chapter 7 (commencing with C.C.P. § 2023.010) on the party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to discovery. (C.C.P. §§ 2031.310(h), 2030.290(c).) If a monetary sanction is authorized, the court must impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (C.C.P. § 2031.310(h).)      

TENTATIVE RULING

Court GRANTS the motion to compel as indicated above and orders Petitioner/RP Lisa Carriger to provide code-complaint written responses without objections and to produce responsive documents to Respondent’s Demand for Production of Documents, Set Two, within 21 days (September 8, 2023).

The court reserves the right to preclude Petitioner from introducing any documents or evidence Petitioner failed to supply and/or produce in discovery at any future hearing date on Respondent’s Request for Order filed December 8, 2022.

The Court orders Petitioner to pay sanctions in the amount of $5,720 for attorney’s fees and costs incurred payable to Stegmeier, Gelbart, Schwartz & Benavente. The Court also orders $1,100 in sanctions for abuse of the discovery process by Petitioner. Total sanctions of $6,820 are payable at the rate of $1,500 per month until paid in full.

Respondent/MP is ordered to give notice.