Judge James C. Chalfant, Case Number: 22STCP04207, Date: 2024-02-22 Tentative Ruling

Petitioner Megeen McLaughlin moves to compel Respondent California Department of Transportation (“Caltrans”) to provide further discovery responses to the Requests for Production of Documents, Set Five (“RFPs”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioners Megeen McLaughlin (“Megeen”) and Ryan McLaughlin (“Ryan”) (collectively, “McLaughlins”) filed the Petition against Respondent California Department of Transportation (“Caltrans”) on November 29, 2022. The operative pleading is the Second Amended Petition (“SAP”) filed on February 27, 2024, alleging two causes of action, both for writ of mandate or injunction. The verified SAP alleges in pertinent part as follows.

The McLaughlins were tenants in good standing at 1110 Glendon Way, South Pasadena, CA 91030 (“Property”) from September 1991 to December 1999. Megeen signed a lease for the Property on May 24, 1993. Her son Ryan was a minor at the beginning of this tenancy.

By 1998, the Property was in negligent disrepair. In Spring 1999, the “Historic Properties Tenants Association” notified Megeen by mail that Caltrans had developed a project to rehabilitate 80 historic homes along the 710 Freeway corridor route in Pasadena and South Pasadena. At the same time, Caltrans Property Manager Marilyn J. Lavender (“Lavender”) informed Megeen that the McLaughlins would be displaced from the Property so that Caltrans could renovate it to comply with historical property standards.

To preserve her right to purchase the Property under the Roberti Law, Megeen agreed to move out only if Caltrans guaranteed to allow the McLaughlins to return after the renovations. Caltrans agreed, and Lavender promised to provide a Memorandum of Understanding (“MOU”) to that effect soon after the McLaughlins vacated. Based on Caltrans’s representations, Megeen believed that the renovations would begin as soon as the McLaughlins vacated and would take only a year. She also believed that the proposed renovations were the only way to restore the Property to an adequate living condition. Thus, she agreed to temporarily vacate the Property.

On December 2, 1999, shortly before the McLaughlins vacated the Property, Lavender presented Megeen a document entitled “Residential Claim for Moving Expense by Schedule or Actual Reasonable Cost” (“Moving Expense Sheet”). The Moving Expense Sheet listed Megeen and Ryan as claimants. Lavender handwrote “RAP” on top to demonstrate that the Moving Expense Sheet was for the Relocation Assistance Program. Megeen incorrectly signed the document where a Caltrans representative should sign an acknowledgment that the document and supporting evidence complies with applicable provisions of Title 49 Code of Federal Regulations (“C.F.R.”), Part 24.

The McLaughlins vacated the Property in the second week of December 1999. By that point, Ryan was 18 years old. Because Caltrans only intended to temporarily displace the McLaughlins, it did not pay the full amount of relocation benefits required under 24 C.F.R. section 24.402(b)(1). It also failed to comply with notice requirements under the 1970 version of 24 C.F.R. section 24.203(a), the duty to provide a comparable replacement dwelling under then-24 C.F.R. section 24.204, and recordkeeping requirements under then-49 C.F.R. section 24.9.

In January 2001, Lavender asked Megeen via phone if she had received the promised MOU. Megeen replied that she was still waiting for it.

In September 2022, the McLaughlins made public records requests to Caltrans for documents about their displacement from the Property. Caltrans only produced the Moving Expense Sheet. To date, the only documents Caltrans has produced are the documents the McLaughlins provided to Caltrans in August 2022.

The McLaughlins made a public records request for documents concerning Caltrans’ rehabilitation efforts for the Property under the Secretary of the Interior’s Standards for Treatment of Historic Properties, 36 C.F.R., Part 68 (“Historic Property Standards”). The only document provided was a Route 710 Historic Houses Condition Assessment Report from October 15, 2002. The 2002 report shows the Property in the same state of disrepair as when the McLaughlins vacated it. A repair estimate from May 23, 2012 shows the same improvements as the renovation report and demonstrates that Caltrans did not make any improvements in the ten years between the two documents. The rehabilitation project either no longer existed or no longer applied to the Property.

Between 2000 and 2022, the McLaughlins’ replacement dwelling at 854 Bank Street. (“Bank Property”) had a new property manager once every 1-2 years. Each manager inspected the Bank Property at least annually. Each time there was a new manager, Megeen told that manager about the McLaughlins’ displacement and their intention to move back into the Property after its rehabilitation was complete.

A repair report dated December 4, 2014 shows that Property manager Angus Chan (“Chan”) called for move-in repairs to the Property.

In June 2015, Chan became manager of the Bank Property. Megeen told Chan about her intent to return to the Property. Chan did not inform her that he was also manager of the Property, that the Property had been renovated for move-in purposes, and that it had not been renovated to comply with Historic Property Standards. Had they known these facts, the McLaughlins could have asserted their right to move back in at that time.

In November 2021, the City of South Pasadena (“City”) notified the McLaughlins that it planned to purchase vacant Caltrans-owned properties within City limits. Megeen contacted then-Property manager Michael Means (“Means”) to assert the McLaughlins’ right to move back into the Property. Later that month, Caltrans CFO Stephen Keck (“Keck”) helped the McLaughlins contact Caltrans program manager Carolyn Dabney (“Dabney”). Dabney said that she would speak to Edward Francis (“Francis”), Caltrans Deputy Director of District 7, who had the final say on the issue.

From November 2021 to August 2022, the McLaughlins attempted to contact Francis by telephone and email as they had yet to hear from Dabney. In August 2022, Ryan explained the situation to Francis over the phone. Although Francis found Ryan’s assertions believable, he was not familiar with Caltrans’s efforts to rehabilitate historic properties in that area. Francis also informed Ryan that the Property was fully renovated and vacant, although it had been rented to a tenant for a short time. This was the first time that the McLaughlins learned that the Property was in “move in” condition.

On September 14, 2022, Francis informed Ryan that he could not establish or confirm Megeen’s right to the Property. This was the first formal denial of the McLaughlins’ right to move back into the Property.

On September 20, 2022, the McLaughlins filed a claim against Caltrans with the Department of General Services Office of Risk and Insurance Management. In this claim, they sought to enforce Caltrans’s promise to allow them to move back into the Property after its restoration. Caltrans did not respond to this within 45 days or thereafter.

The McLaughlins’ displacement meets the Los Angeles County Department of Business and Consumer Affairs, Division of Housing Protections’ definition of “temporarily displaced tenants.” They were displaced to make repairs for conditions posing health and safety violations. The California Relocation Assistance Act (“RAA”), Government Code (“Govt. Code”) sections 7260-7277 establishes a uniform policy for persons displaced as a direct result of programs or projects undertaken by a public entity.

Caltrans failed to comply with the RAA. If it had, the McLaughlins would have known that per Govt. Code section 7261(c)(4), they were not required to move from the Property until Caltrans provided a comparable replacement dwelling. Caltrans then failed to provide Megeen with current and continued information on the rental availability of such dwellings, or of the Property. The failure to establish local advisory assistance offices per Govt. Code section 7261(b) exacerbated this ignorance.

Under Govt. Code section 7265.3(d), Caltrans failed to give Megeen both actual notice that the Property renovations were complete and the option of relocating back to the Property. It then failed to provide the formal administrative procedure for adjudicating her claim to relocate to the Property, which Govt. Code section 7267.8 requires. It never allowed her to submit her claim before an impartial fact finder with the opportunity to hear testimony and submit legal briefs. Caltrans also failed to guide her through the appeals process per the ministerial duty identified in its 1990 guide entitled “Your Rights and Benefits as a Displacee Under the Uniform Relocation Assistance Program (Residential)” (“Caltrans Guide”).

Megeen seeks (1) a writ of mandate compelling Caltrans to allow the McLaughlins to return to the Property; (2) an order enjoining the sale of the Property during this action; (3) an order binding Caltrans to its conduct and promises to the extent the McLaughlins relied on them to their detriment, thereby allowing the McLaughlins to return to the Property; and (4) costs of suit.

On November 30, 2022, the McLaughlins filed a lis pendens for the Property. They served Caltrans with the Summons, Petition, and lis pendens.

On February 7, 2023, the McLaughlins filed the First Amended Petition (“FAP”).

On March 1, 2023, the McLaughlins filed a second lis pendens for the Property.

Also on March 1, 2023, the court denied the McLaughlins’ ex parte application for a temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”), ruling that the McLaughlins had provided no evidence that they qualify under the Roberti Law, they had delayed because they knew about the City’s attempts to buy the Property since September 2021, and there was no showing that a sale was eminent (and the McLaughlins would have to add the buyer as a party if there was).

On May 23, 2023, the court sustained Caltrans’ demurrer to the first cause of action as to both Petitioners, and the second cause of action as to Ryan.

On February 22, 2024, the court denied Megeen’s motion for judgment under CCP section 1094. It granted leave to amend the FAP only to allege a violation of the RAA. The court also extended the discovery cutoff to May 30, 2024, with orders to meet and confer before any discovery motion was filed.

If the party demanding inspection receives a response to an inspection demand and deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general, that party may move for an order compelling further response to the demand. CCP §2031.310. The motion must set forth specific facts showing good cause justifying the discovery sought by the demand. CCP §2031.310(b)(1). “Good cause” may be found to justify discovery where specific facts show that the discovery is necessary for effective trial preparation or to prevent surprise at trial. Associated Brewers Dist. Co. v. Superior Court, (1967) 65 Cal.3d 583, 588. Where there is no privilege issue or claim of attorney work product, the burden to show “good cause” is met simply by a fact-specific showing of relevance. Glenfed Development Corp. v. Superior Court, (1997) 53 Cal.App.4th 1113, 1117.

Such a motion must be accompanied by a meet and confer declaration under CCP section 2016.040. CCP §2031.310(b)(2). Unless notice of the motion is given within 45 days of the service of the response, or any supplemental response, or on or before any later date to which the propounding and responding parties have agreed in writing, the propounding party waives any right to compel further response to the requests for production. CCP §2031.310(c).

Each motion shall be accompanied by a separate document which sets forth each demand to which a further response is requested, the response given, and the factual and legal reasons for compelling it. CRC 3.1345(a)(2). The separate statement must be full and complete so that no person is required to review any other document to determine the full request and the full response. CRC 3.1345(c). Material must not be incorporated by reference. CRC 3.1345(c).

In deciding a motion under CCP section 2030.300 or 2031.310, the trial court must, of necessity, consider not only the stated objections to the discovery requests, but also the requests themselves, as well as the pleadings, and the contentions of the propounding party of the purpose and validity of the interrogatories. See Columbia Broadcast System, Inc. v. Superior Court, (1968) 263 Cal.App.2d 12, 18. If interrogatories are reasonably subject to objection as calling for the disclosure of matters so remote from the subject matter of the action to make their disclosure of little or no practical benefit to the party seeking disclosure, if to answer would place a burden and expense upon the responding party which should be equitably borne by the propounding party, or if the interrogatories as framed require the disclosure of relevant as well as irrelevant matter, the trial court in the exercise of its discretion may refuse to order such interrogatories answered. Id. at 19.

On September 29, 2023, Megeen served Caltrans with her fifth set of RFPs. Megeen Decl., ¶3, Ex. 1. The RFPs included a request for the complete parcel diary for the Property (“RFP No. 3”). Megeen Decl., ¶3, Ex. 1.

On October 30, 2023, Caltrans provided a response objecting to RFP No. 3 as overly broad, unduly burdensome, oppressive, harassing, and irrelevant. Megeen Decl., ¶4, Ex. 2. Caltrans also argued that it infringed upon the personal privacy rights of third parties and individuals as well as the attorney-client privilege. Megeen Decl., ¶4, Ex. 2. Without waiving this objection, Caltrans asserted that it had already provided the unprivileged requested documents in its possession, custody and control. Megeen Decl., ¶4, Ex. 2.

However, Caltrans had only provided the Property’s parcel diary from November 7, 1990 to May 19, 1998, including one entry from December 2, 1999. Megeen Decl., ¶5, Ex. 3. In contrast, Caltrans had previously produced a parcel diary for 1113 Glendon Way, Los Angeles, CA 91030 (“1113 Glendon”) spanning 25 years. Megeen Decl., ¶6, Ex. 4.[2]

On November 27, 2023, Megeen asked Caltrans about this discrepancy between the two parcel diaries. Megeen Decl., ¶6. Counsel for Caltrans, Paul Dipietro, Esq. (“Dipietro”), replied that he would check for more documents. Megeen Decl., ¶7, Exs. 5-6.

On November 29, 2023, DiPietro sent Megeen additional documents. Megeen Decl., ¶7, Exs. 5-6. Those documents consisted only of excerpts from 1113 Glendon’s parcel diary. Megeen Decl., ¶7.

On December 11, 2023, Megeen emailed DiPietro that she still needed the complete parcel diary for the Property. Megeen Decl., ¶8, Ex. 7. He replied the next day that the Property’s diary already had been produced in response to earlier RFPs. Megeen Decl., ¶9, Ex. 8. Megeen replied that the produced parcel diary was only for 1991-1999 and read “Property Management Rental Account Diary.” Megeen Decl., ¶10, Ex. 9. She asked if DiPietro was suggesting that the maintenance requests produced for the Property comprised the complete parcel diary through 2023. Megeen Decl., ¶10, Ex. 9.

Megeen repeated this question on December 29, 2023, and January 2, 2024 because she had received no response. Megeen Decl., ¶¶ 11-12, Exs. 10-11. During a phone call on January 5, DiPietro informed Megeen that Caltrans would look for additional pages to the Property’s diary. Megeen Decl., ¶13. To memorialize this, Megeen emailed DiPietro to thank him for looking. Megeen Decl., ¶13, Ex. 12.

During a phone call on January 26, 2024, DiPietro informed Megeen that he was still looking for additional pages to the Property’s parcel diary but should finish that search by the end of the week. Megeen Decl., ¶14, Ex. 13. Megeen emailed DiPietro to memorialize this conversation. Megeen Decl., ¶14, Ex. 13. DiPietro replied that he would not “keep going back and forth” with further requests months after Caltrans’ responses. Megeen Decl., ¶15, Ex. 14. He accused Megeen of continually raising new issues despite discovery being closed. Megeen Decl., ¶15, Ex. 14.

On February 6, 2024, DiPietro sent Megeen one page of the Property’s parcel diary dated March 17, 2016. Megeen Decl., ¶16, Exs. 15-16. He asserted this was the only page he had found. Megeen Decl., ¶16, Ex. 15. Megeen thanked DiPietro for the page but noted it was “miraculously” sent only after her trial brief was due. Megeen Decl., ¶17, Ex. 17. It was even more miraculous given DiPietro’s January 5, 2024 statement in a phone call that the State is not known for keeping meticulous records. Megeen Decl., ¶17, Ex. 17.

On February 15, 2024, Megeen emailed DiPietro as an attempt to meet and confer about the Property parcel diary. Megeen Decl., ¶18, Ex. 18. She asked DiPietro to explain why entries between January 2000 and March 2016 were still missing. Megeen Decl., ¶18, Ex. 18.

On February 22, 2024, the court reopened discovery to allow for the motion to compel scheduled for this hearing date, but it also ordered the parties to meet and confer in person. Megeen Decl., ¶19. Megeen met DiPietro after the hearing in the hallway, where he said his team will look more thoroughly for missing pages of the Property parcel diary. Megeen Decl., ¶19. He also said he would ask Caltrans if Megeen could go in person to look for documents. Megeen Decl., ¶19. DiPietro still did not explain how Caltrans had found another page of the parcel diary after a thorough search between June and October 2023. Megeen Decl., ¶19.

DiPietro has asserted that parcel diaries are not kept when state-owned homes are vacant. Megeen Decl., ¶20. This did not explain why, aside from one page in March 2016, Caltrans has not produced any parcel diary pages for the Property between 2015 and 2017. Megeen Decl., ¶20. For comparison, Caltrans produced a 100-page parcel diary for 5512 Atlas, Los Angeles, CA 90032 (“Atlas Property”) with entries from 1993. Megeen Decl., ¶24, Ex. 20.

There have been break-ins between Megeen’s displacement in 1999 and the completion of renovations in 2014, and the parcel diary should reflect that. Megeen Decl., ¶21. At minimum, the parcel diary should reflect an incident in Spring 2000, when the police contacted Megeen about break-ins at the Property. Megeen Decl., ¶22. On the police’s advice, Megeen visited the Property and inspected the interior with officers. Megeen Decl., ¶22. No produced diary pages correspond to this incident. Megeen Decl., ¶22.

The parcel diary should also reflect the Property’s use in June and July 2007 for production of a remake of the movie “Halloween.” Megeen Decl., ¶23, Ex. 19. No produced diary pages correspond to this fact. Megeen Decl., ¶23.

Unlike Caltrans, Megeen has cooperated with discovery efforts. Megeen Decl., ¶24. As a tenant in good standing, she only refused to provide her financial records because they are irrelevant to the case. Megeen Decl., ¶24.

In contrast, the parcel diary is relevant because it likely reflects Caltrans’ intent to return the Property to Megeen after renovations were complete. Megeen Decl., ¶24. It should also show that some renovations, like those for the “Halloween” shoot, were not for move-in purposes. Megeen Decl., ¶24. That made it harder for Megeen to know when the Property was renovated for move-in purposes unless Caltrans informed her. Megeen Decl., ¶24. Other entries should show that Megeen entered the Property interior with police officers because the neighborhood knew she was to be relocated there after renovations. Megeen Decl., ¶24.

Caltrans’ misuse of the discovery process has cost Megeen $60 in motion filing fees, $17 in electronic filing fees, $104 to print 450 pages of courtesy copies for this court, and $20 for parking. Megeen Decl., ¶25. Her costs relevant to this motion therefore total $201. Megeen Decl., ¶25.

Parcel diaries are written by right-of-way agents assigned to tenant-occupied properties. Beckham Decl., ¶7; Murdoch Decl., ¶5. A diary will not have entries when no tenant occupies the property. Beckham Decl., ¶7; Murdoch Decl., ¶5. Each diary will be different based on the right-of-way agent assigned, and some are more meticulous than others. Beckham Decl., ¶7; Murdoch Decl., ¶5.

The files for the Property date back to 1969. DiPietro Decl., ¶14. The Property was vacant from 1999 to 2014, and from 2016 thereafter. DiPietro Decl., ¶13.

On July 3, 2023, Caltrans produced the Property parcel diary and file to Megeen. Megeen Decl., ¶4.

On September 7, 2023, the court set the original discovery cutoff as November 22, 2023. DiPietro Decl., ¶3, Ex. A.

In October 2023, in order to comply with the RFPs, Caltrans’ senior right-of-way agent reviewed the physical and electronic file for the Property and all diaries found were produced. Beckham Decl., ¶4; Murdoch Decl., ¶4. This review was double-checked. Beckham Decl., ¶6.

On October 30, 2023, Caltrans responded to RFP No. 3. DiPietro Decl., ¶5. It objected that the request was overly broad, unduly burdensome, oppressive, harassing, and irrelevant. DiPietro Decl., ¶5. Caltrans noted the request sought a “complete” diary but did not define the word “complete.” DiPietro Decl., ¶5. It also argued it infringed upon the personal privacy rights of third parties and individuals as well as the attorney-client privilege. DiPietro Decl., ¶5. Without waiving this objection, Caltrans asserted that it had already provided the unprivileged requested documents that were in its possession, custody and control. DiPietro Decl., ¶5.

After the discovery deadline passed, Megeen repeatedly contacted DiPietro demanding more documents or further discovery. DiPietro Decl., ¶6. She sometimes asserted that she never received documents that had been produced. DiPietro Decl., ¶6. As a sign of good faith, DiPietro had Caltrans search for additional documents. DiPietro Decl., ¶7. As a result, Caltrans found and produced a single page with one entry for the Property’s parcel diary. DiPietro Decl., ¶7; Beckham Decl., ¶5. When Megeen commented it was miraculous Caltrans only found this page after her trial brief was due, DiPietro said Caltrans would not object if Megeen felt the need to supplement her brief based on that page. DiPietro Decl., ¶8, Ex. B. Megeen never supplemented the brief. DiPietro Decl., ¶8.

On February 22, 2024, the court reopened discovery but ordered that all discovery motions be preceded with face-to-face meet and confer. DiPietro Decl., ¶9, Ex. C. After the hearing, DiPietro and Megeen met outside the courtroom. DiPietro Decl., ¶10. DiPietro never promised to search for or produce more documents. DiPietro Decl., ¶10. Rather, he said Caltrans produced the documents that had been found. DiPietro Decl., ¶10. He added that it was unlikely there would be any diaries for years when there were no Property tenants because diaries only record interactions with leased properties and tenants. DiPietro Decl., ¶10. He had explained this to Megeen previously over the phone. DiPietro Decl., ¶10. DiPietro said he would ask if the State would allow her to physically inspect the documents, but he made no promises. DiPietro Decl., ¶10. During this meeting, Megeen did not discuss any of Caltrans’ RFP objections. DiPietro Decl., ¶11. This was the last communication between the parties before Megeen filed the instant motion. DiPietro Decl., ¶12.

DiPietro received his J.D. in 2012. DiPietro Decl., ¶16. He spent the first five of those years as an associate attorney at The Alvarez Firm, two more as an associate at another firm, and joined Caltrans’ legal division in March 2020. DiPietro Decl., ¶16. He has handled all facets of tort and employment cases, from inception through trial, and either first-chaired or second-chaired four jury/arbitration trials and three bench trials. DiPietro Decl., ¶16.

DiPietro spent 7.5 hours drafting the opposition to this motion and expects to spend one more hour at the hearing. DiPietro Decl., ¶15. Although he does not bill the State, he estimates the reasonable value of his services given his experience is $600 per hour. DiPietro Decl., ¶¶ 16-17. He reached this conclusion based on discussions with attorneys who have more or a similar level of experience. DiPietro Decl., ¶17. This rate would make his fees for this motion $600 x 8.5 = $5,100. DiPietro Decl., ¶18.

Lawrence McGrail’s (“McGrail”) family occupies 1102 Glendon Way, South Pasadena, CA 91030 (“1102 Property”), which is next door to the Property. McGrail Decl., ¶¶ 2-3. Since 2001, Caltrans right-of-way agents have granted the McGrails permission to park their cars in the Property’s driveway to make it look occupied. McGrail Decl., ¶7; Megeen Reply Decl., ¶3. Megeen learned about this when the police called her to the Property in mid-2000 to inspect the interior after trespassing and vagrancy. Megeen Reply Decl., ¶3.

Film production crews have often used the Property’s block. Megeen Reply Decl., ¶6. In the summer of 2007, neighbors told her the Property had been involved in several productions since she vacated. Megeen Reply Decl., ¶6. This included the “Halloween” remake filmed in 2007, for which the entire exterior was painted dark green and the upstairs railing destroyed. Megeen Reply Decl., ¶6, Ex. 1. Stills from the television show “October Road,” filmed from 2007 to 2009, also show the house painted dark green. Megeen Reply Decl., ¶6, Ex. 2. The house has not been repainted since. McGrail Decl., ¶5.

As part of “October Road,” the production company also installed a sprinkler system on the Property. McGrail Decl., ¶6. Because Caltrans turned off the water supply, this system was never functional. McGrail Decl., ¶6.

The City has kept a complete list of productions on the Property’s block. Megeen Reply Decl., ¶5, Ex. 3. Productions involving the Property include several in 2002, three in 2007, one in 2009, two in 2009, and one in September 2016. Megeen Reply Decl., ¶5, Ex. 3.

The Atlas Property’s parcel diary shows that the tenants were moved to a temporary residence on July 28, 2020. Megeen Reply Decl., ¶7, Ex. 4. The diary continues to detail the renovations through December 2020. Megeen Reply Decl., ¶7, Ex. 4. This includes a September 30 conversation where the displaced tenant asked the right of way agent for help with an ARP application. Megeen Reply Decl., ¶7, Ex. 4.

After the hearing on February 22, 2024, Megeen and DiPietro met and conferred in the hallway for 15 minutes. Megeen Reply Decl., ¶7. Megeen had already scheduled a motion to compel hearing for March 28, 2024, and the focus was the Property’s parcel diary. Megeen Reply Decl., ¶7.

DiPietro said Caltrans had looked and was not able to locate any more documents. Megeen Reply Decl., ¶8. Looking for more documents would be burdensome because they could be in several locations, albeit all in Los Angeles and operated by Caltrans. Megeen Reply Decl., ¶8. Megeen asked him to look again because it made no sense to find one more page after a thorough search in October 2023 did not yield it. Megeen Reply Decl., ¶8. DiPietro said he would ask his team to look again. Megeen Reply Decl., ¶8. He also said he would ask Caltrans if Megeen could go in person to conduct his own search. Megeen Reply Decl., ¶8.

Megee never heard back from DiPietro, and it had taken 71 days to produce a single diary page. Megeen Reply Decl., ¶9. With the deadline to file a motion to compel looming, Megeen filed the instant motion to compel. Megeen Reply Decl., ¶9. On March 11, 2024, she asked DiPietro about the search for missing pages in hopes of coming to an agreement that would remove the motion from the calendar. Megeen Reply Decl., ¶10, Ex. 5. DiPietro replied that Megeen had filed the motion to compel, there was no reason to meet and confer on any issue thereunder. Megeen Reply Decl., ¶10, Ex. 5.

Petitioner Megeen seeks to compel a further response to RFP No. 3, which sought the Property’s parcel diary. Megeen Decl., ¶3, Ex. 1.

A motion to compel further responses must be accompanied by a meet and confer declaration under CCP section 2016.040. CCP §2031.310(b)(2). A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. CCP §2016.040.

When the court reopened discovery, it ordered that any future motion to compel further responses must follow in-person efforts to meet and confer. DiPietro Decl., ¶9, Ex. C. Megeen asserts that when she spoke to Caltrans’ counsel DiPietro after that hearing, he said his team will look more thoroughly for missing pages of the Property parcel diary. Megeen Decl., ¶19. DiPietro denies saying so. He asserts that he said Caltrans had already produced the documents that had been found, and that it was unlikely there were any more. DiPietro Decl., ¶10. The parties agree that DiPietro said he would ask Caltrans if Megeen could go in person to look for documents. Megeen Decl., ¶19; DiPietro Decl., ¶10. Megeen does not deny that she failed to raise Caltrans’ objections to RFP No. 3 in this meet and confer. DiPietro Decl., ¶12.

Caltrans argues that Megeen failed to meet and confer over the State’s objections to the RFP as the court ordered. Opp. at 4. This is true. Megeen appears to have assumed in the meet and confer that Caltrans intended to comply, but procedurally it had preserved its objections and Megeen was required to address them in the meet and confer.[3]

Despite this failure, the court will not deny the motion on the ground that Megeen failed to properly comply with meet and confer requirements.

Unless notice of a motion to compel further responses is given within 45 days of the service of the response, or any supplemental response, or on or before any later date to which the propounding and responding parties have agreed in writing, the propounding party waives any right to compel further response to the requests for production. CCP §2031.310(c).

The 45-day time limit within which to file and serve a motion to compel further responses is mandatory and quasi-jurisdictional in the sense that the court has no authority to rule on a late motion other than to deny it. Sexton v. Superior Court, (1997) 58 Cal.App.4th 1403, 1410 (oral objection at hearing where opposition failed to raise timeliness issue was sufficient because court has jurisdiction only to deny untimely motion); New Albertsons, Inc. v. Superior Court, (2008) 168 Cal.App.4th 1403, 1427-28 (missing deadline waives the right to compel a further response).

Caltrans provided its responses to RFP No. 3 on October 30, 2023. Megeen Decl., ¶4, Ex. 2. As a result, the 45-day period to file and serve a motion to compel ended on December 18, 2023. Caltrans asserts that Megeen filed this motion long after the December 18, 2023 deadline. Opp. at 3.

Megeen argues that that the 45-day deadline runs from when DiPietro produced one additional parcel diary page on February 6, 2024. Megeen Decl., ¶16, Exs. 15-16. Reply at 8.

Megeen is confusing Caltrans’ informal effort to provide additional documents with her statutory duty to meet a deadline. Caltrans’ October 30, 2023 complied with its duties to respond to the RFPs under CCP section 2031.250(c). Megeen Decl., ¶4, Ex. 2.

A supplemental verified response will extend the 45-day period. CCP §2031.310(c). Diepietro’s February 6, 2024 email providing one page of the Property’s parcel diary (Megeen Decl., Ex. 15) may have complied with a continuing duty to act in good faith but it was not a supplemental verified response. If Megeen wanted to preserve her right to make a motion to compel while urging Caltrans to keep searching, she was obligated to obtain Caltrans’ agreement in writing extending the 45-day deadline. CCP §2013.31(c). She did not do so and the motion is denied as untimely.[4]

The court shall impose a monetary sanction under CCP section 2023.010 against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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. CCP §2031.310(d). Further, notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. CCP §2023.020.

Caltrans requests a $5,100 sanction based on the attorney’s fees incurred opposing this motion. DiPietro Decl., ¶¶ 15-18. Opp. at 7.

Megeen argues that sanctions are inappropriate when DiPietro dismissed her attempts to come to some sort of agreement that would obviate this motion. Reply at 9. Megeen’s good faith in seeking diary pages does not bear significantly on whether sanctions should be awarded when she filed an untimely motion. But see post.

Megeen argues that the court should not award DiPietro attorney’s fees for opposing this motion as if the State did not already employ him to do so. Reply at 9. This argument improperly shifts the focus of a sanctions analysis. The purpose of sanctions is not to compensate the opposing party, it is to penalize the sanctioned party for not acting with substantial justification. She did not act with substantial justification.

Megeen also argues that DiPietro cannot justify the claimed hourly rate of $600 for his services. He provides no proof that he ever made this much as an associate attorney. Reply at 9. The determining factor is not DiPietro’s hourly rate when he was an associate attorney. It is whether $600 is a reasonable hourly rate for this motion based on his legal experience. DiPietro Decl., ¶16. DiPietro based his estimate on discussions with attorneys who have more or a similar level of experience. DiPietro Decl., ¶17. His rate is reasonable.

Although DiPietro requests a sanction of $5,100, the court declines to impose that amount. This is in part because Megeen’s motion is obviously untimely and little effort was required to demonstrate that fact. Additionally, Megeen acted in good faith and, as a pro per, was unfamiliar with procedural requirements. A sanction is mandatory because she did not act with substantial justification, but only a $400 sanction is imposed.

The motion to compel further responses is denied. Sanctions of $400 are imposed against Megeen, payable within 30 days and collectible as a judgment.

[1] Caltrans failed to lodge a courtesy copy of its opposition, in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. It is admonished to provide a courtesy copy of its opposition for trial or it will not be considered.

[2] Megeen misidentifies this as Exhibit 5. Megeen Decl., ¶5. Megeen fails to attach the purported Exhibit 4, an email asking Caltrans about the discrepancy between the two parcel diaries. Megeen Decl., ¶5.

[3] Megeen argues that her original declaration (Megeen Decl.) reads as a long meet and confer attempt to discuss missing parcel diary pages. Reply at 9. This one-sided soliloquy cannot satisfy the court’s order to meet and confer in person.

[4] The court need not address Megeen’s merits argument that there must be more parcel diary entries for the Property except to note the parties’ positions. Megeen contends that Caltrans had a duty under 49 C.F.R section 24.9 to maintain adequate records of its displacement activities up to three years after the displaced family has received all benefits. She argues that there must be more diary records because a tenant occupied the Property at some point between 2014 and 2017, there was a Spring 2000 break-in in which police were called, and movies and television shows were filmed on the Property in 2002, 2013, and September 2016. Megeen Reply Decl., ¶5, Ex. 3. Reply at 2-7.

Caltrans asserts it has produced all readily discernible responsive documents. Opp. at 6. Caltrans asserts that parcel diaries are written by right of way agents assigned to tenant-occupied properties. Beckham Decl., ¶7; Murdoch Decl., ¶5. A diary therefore will not have entries when no tenant occupies the property. Beckham Decl., ¶7; Murdoch Decl., ¶5. The Property was vacant from 1999 to 2014, and from 2016 thereafter. DiPietro Decl., ¶13. Because the incidents at issue were while the Property was vacant, no right of way agent would keep a parcel diary with such events. The level of detail in a parcel diary depends on the right of way agent assigned to it. Beckham Decl., ¶7; Murdoch Decl., ¶5.