Judge: John J. Kralik, Case: 22STCV21262, Date: 2024-01-19 Tentative Ruling

IMPORTANT

Communicating with the Court Staff re the Tentative Ruling

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Case Number: 22STCV21262    Hearing Date: January 19, 2024    Dept: B

MOTIONS TO COMPEL DISCOVERY RESPONSES
Los Angeles Superior Court Case # 22STCV21262

NOTICE: 

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”   

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412. 

ALLEGATIONS:  

Wayneider Singh Anand (“Plaintiff”) brings this action against the City of La Cañada Flintridge (the “City”) in connection with a December 4, 2021 incident which claimed the life of Plaintiff’s wife. Plaintiff alleges the City failed to maintain safe conditions for a crosswalk located at Foothill Boulevard and Union Street. Plaintiff alleges that because of this failure, his wife was struck by a vehicle while crossing the street. Plaintiff also brings this action against Emma Amosh Mirzaian (“Mirzaian”) and Edwin Baltazar (“Baltazar”). Mirzaian was the person driving the vehicle that struck Plaintiff’s wife and Baltazar is the owner of the vehicle. A criminal manslaughter case is currently pending against Mirzaian. The City has filed a Cross-Complaint against Mirzaian, alleging that she suffered a disability which impaired her ability to operate the vehicle.  

Before the Court are seven motions brought by the City to compel Mirzaian’s initial discovery responses. The discovery to which the City seeks responses are as follows: 

·       Special Interrogatories Set One – Served 11/3/2022

·       RFPD Set One – Served 12/1/2022

·       Special Interrogatories Set Two – Served 12/1/2022

·       Form Interrogatories Set One – Served 12/1/2022

·       RFA Set One – Served 12/1/2022

·       Special Interrogatories Set Three – Served 3/27/2023

·       Form Interrogatories Set Two – Served 3/27/2023

·       RFA Set Two – Served 3/27/2023 

Mirzaian opposes each motion, arguing that she was granted an open-ended extension to reply to discovery pending the resolution of her criminal matter. Mirzaian further argues that when the City unilaterally revoked this extension, she complied with their new date of production by serving objections to each discovery request on May 19, 2023. 

ANALYSIS:  

I.                LEGAL STANDARD  

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling response and for a monetary sanction.  (C.C.P. § 2030.290(b).)  The statute contains no time limit for a motion to compel where no responses have been served.  All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served.  (See Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.)  

Where there has been no timely response to a demand to produce documents, the demanding party may seek an order compelling a response.  (C.C.P. § 2031.300(b).)  Failure to timely respond waives all objections, including privilege and work product.  (C.C.P. § 2031.300 (a).)  Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses.  Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.  

II.              MERITS 

Background 

To begin, it appears from the moving papers and the opposition that some sort of discovery extension was provided to Mirzaian with respect to each of these requests. Neither the City nor Mirzaian attach documents evidencing this initial extension. Instead, the moving papers and opposition only refer to this extension and its subsequent revocation. 

The only document submitted in the moving papers referencing this extension is a May 8, 2023 email from prior counsel for the City, David Ferrante-Alan. (Dykes Decl. Exh. E p. 41.) In this email Ferrante-Alan states “There is no stay in place and Jeff Lerman [prior counsel for Mirzaian], you will have to forgive me, but I can no longer honor an open ended time frame for your clients to respond to discovery, even if we get objections” (Id.)

On May 12, 2023, the City sent a letter following up to the May 8, 2023 email correspondence. (Dykes Decl. Exh. B.) In this follow up letter, the City stated that they would no longer be honoring an open-ended time for Mirzaian to respond to discovery. (Id.) The City then demanded production by May 19, 2023 at 5:00pm without objections. (Id.) 

On May 19, 2023, Mirzaian served responses to each discovery request consisting entirely of objections based on the fifth amendment privilege against self-incrimination. (Dykes Decl. ¶ 5, Exh. C.) These responses were unverified. (Id.) In their reply, the City attaches a meet and confer email dated April 3, 2023. It appears from this email that counsel for the City agreed Mirzaian’s objections based on fifth amendment privilege were preserved. (Dykes Reply Decl. Exh. H.) 

It also appears the parties met and conferred just prior to the motions being filed in December of 2023. Mirzaian attaches an email dated December 15, 2023 from her counsel to counsel for the City, explaining the fifth amendment objections. (Stratman Decl. Exh. 4.) This email advised the City that the criminal case against Mirzaian would likely be concluding in January at which time Mirzaian could begin to participate in discovery. (Id.) The email informed that the objections need not have been verified, citing Blue Ridge Ins Co. v Superior Court. (Id.) Lastly, the email informed that counsel for Mirzaian would be on vacation until January 3, 2024. (Id.) Counsel for the City admits that this correspondence was omitted from their moving papers and states that the omission was entirely inadvertent. 

Analysis 

It appears to the Court that the City’s demand for production without objections was not appropriate given their representation that all objections were preserved on April 3, 2023. It is clear from the communication that some sort of open-ended extension was in place to allow time for the criminal prosecution of Mirzaian to conclude. It does not stand to reason that the City could unilaterally revoke this open-ended extension while also claiming that objections are waived by virtue of failure to timely respond. 

Mirzaian’s unverified responses were sufficient to put the City on notice of her objections. Pursuant to C.C.P. § 2031.250(a), “[t]he party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the response under oath unless the response contains only objections.” Further, pursuant to C.C.P. § 2030.250(a), “[t]he party to whom the interrogatories are directed shall sign the response under oath unless the response contains only objections.” Objections are legal conclusions interposed by counsel, rather than factual attestations by their clients, and thus verification is unnecessary. (Blue Ridge Ins Co. v Superior Court (1988) 202 Cal.App.3d 339, 345.) Accordingly, Mirzaian’s service of unverified responses consisting entirely of fifth amendment objections did not require verification. 

In short, it is clear from the April 3, 2023 correspondence and Mirzaian’s subsequent discovery responses that the City was on notice of the fifth amendment objections such that they were not waived. The City’s argument that the fifth amendment privilege is not absolute is misplaced on a motion to compel initial production. Whether Mirzaian’s objections are sufficient to bar production are the subject of a motion to compel further responses, not a motion to compel initial responses. 

Accordingly, the City’s motions to compel are DENIED.  

Sanctions 

If the Court finds that a party has unsuccessfully made or opposed a motion to compel responses to interrogatories or inspection demands, the Court “shall impose a monetary 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. §§ 2030.290(c), 2031.300 (c).) 

Here, the Court finds the City has brought these motions without substantial justification. The City’s motions seek production which has already been rendered. The City filed its motions after meet and confer efforts made clear to them that the fifth amendment objections were made timely and did not need verification. The City should have been aware that, per their April 3, 2023 email, Mirzaian’s objections were not waived. The City also filed these motions well aware that counsel for Mirzaian was on vacation at the time they were filed. Presuming the City reviewed the relevant case law and the meet and confer correspondence, it cannot be said the City was substantially justified in pursuing these motions. 

Monetary sanctions in favor of Mirzaian would be appropriate in this case. However, counsel for Mirzaian submits no declaration attesting to hours spent in preparing the oppositions nor any statement as to his hourly rate. As such, the Court has no metric by which to assess the amount of sanctions which would be appropriate.

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RULING: 

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

City of La Cañada Flintridge’s Motions to Compel Responses to Discovery came on regularly for hearing on January 17, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:  

THE MOTIONS TO COMPEL RESPONSES TO THE CITY’S FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUEST FOR PRODUCTION, AND REQUEST FOR PRODUCTION ARE DENIED.

 UNLESS ALL PARTIES WAIVE NOTICE, THE CITY IS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  January 17, 2024                            _______________________________ 

                                                                        Yolanda Orozco, Judge 

Superior Court of California 

  County of Los Angeles