Judge Katherine Chilton, Case 21STLC02144 2022-11-21 Tentative Ruling

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Defendant Luis Verlarde-Agraz’s Motion for Protective Order is GRANTED for a limited period of 30 calendar days.

On March 15, 2021, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed a subrogation action against Defendant Luis Verlarde-Agraz (“Defendant”) arising out of an alleged automobile accident on June 3, 2019. (Compl. ¶ 6.) Plaintiff filed the instant action to recover monetary damages in the amount of $19,952.07. (Compl. pp. 2-3.)

On September 28, 2021, pursuant to Plaintiff’s request, default was entered against Defendant. (9-28-21 Request for Entry of Default/Judgment.) On December 6, 2021, based on stipulation of the parties, default was set aside, and Defendant’s Answer was deemed filed. (12-6-21 Stipulation and Order; Answer.)

On June 2, 2022, Plaintiff filed a Motion to Deem Requests for Admission Admitted and Request for Sanctions in the amount of $460.00. Defendant filed an Opposition to the Motion on July 7, 2022, along with a Motion for Protective Order as to the Requests for Admission and other discovery tools in the case. On July 19, 2022, the Court denied Plaintiff’s Motion and Request for Sanctions. (7-19-22 Minute Order.) The Court also granted a protective order in favor of Defendant with respect to the Requests for Admission, only. (Ibid. at p. 5.)

On August 1, 2022, Defendant filed the instant Motion for Protective Order (incorrectly labeled as “Opposition to Motion to Deem Requests for Admission Admitted”)[2], (“Motion). Plaintiff

On August 15, 2022, Plaintiff filed Motion in Limine No. 1 and Motion in Limine No. 2. On the same day, Plaintiff also filed Notice to Attend Trial, requesting that Defendant Verlarde-Agraz appear at the trial on September 12, 2022.

On August 15, 2022, Plaintiff also filed Stipulation of Plaintiff’s and Defendant’s attorneys that “negligence was the cause of the accident in this matter” and that Defendant’s “liability is established for purposes of trial,” with the only remaining issue being the “extent and amount of Plaintiff’s damages.” (8-15-22 Stipulation.)

On September 12, 2022, the Court continued Non-Jury Trial to October 3, 2022. (9-12-22 Minute Order.) On October 3, 2022, the Court continued Non-Jury Trial to January 24, 2023. (10-3-22 Minute Order.) The Court also continued the Order to Show Cause Re: Why Sanctions Should Not Be Imposed for Defendant's Failure to Appear for Trial to November 21, 2022, and the hearing on the Motion for Protective Order to November 21, 2022. (Ibid.)

The court must restrict the frequency or extent of use of discovery if (a) the “the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;” or (b) “the selected method of discovery is unduly burdensome or expensive.” (Code of Civil Procedure § 2019.030(a).) Such an order may be made on a motion for a protective order by a party or affected person, which must be accompanied by a meet and confer declaration. (Code of Civil Procedure § 2019.030(b).)

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420(a).)

For good cause shown, the Court may issue any order that “justice requires to protect any party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) Section 2025.420(b) provides a nonexclusive list of directions that may be included in a protective order, including orders directing that the deposition may not be taken at all or that the deposition be taken at a different time. (Ibid.)

B. Protective Order Re: Interrogatories – Code of Civil Procedure § 2030.090

“When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2030.090(a).)

“The Court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., 2030.090(b).) Section 2030.090(b) provides a nonexclusive list of directions that may be included in a protective order, including orders directing that the interrogatories need not be answered, the time to respond be extended, etc. (Ibid.)

C. Protective Order Re: Request for Production – Code of Civil Procedure § 2031.060

“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code of Civil Procedure § 2031.060(a).”

“The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code of Civil Procedure § 2031.060(b).) Section 2031.060(b) provides a nonexclusive list of directions that may be included in a protective order, including orders directing that the items not be produced or made available or that the time to respond be extended. (Ibid.)

(2) Defendant does not need to answer Form and Special Interrogatories propounded by Plaintiff or alternatively, defense counsel may be permitted to answer and verify answers based on information and belief;

(3) Defendant does not need to answer Request for Production propounded by Plaintiff or alternatively, defense counsel may be permitted to answer and verify answers based on information and belief.

(Mot. pp. 1-2.) The Motion is based on defense counsel’s inability to locate Defendant since the commencement of this action and counsel’s candid communication with Plaintiff’s counsel regarding its lack of knowledge of Defendant’s whereabouts. (Ibid. at p. 2.)

Defense Counsel states that she cannot locate the Defendant and is using private investigators to attempt to contact Defendant. (Rugh Decl. ¶ 3.) Neither Counsel’s firm nor Farmer’s Insurance have had any contact with Defendant. (Ibid. at ¶ 4.) Counsel has been candid with Plaintiff’s Counsel regarding her inability to locate Defendant and has attached a chain of email communication as proof. (Ibid. at ¶¶ 3-5, Ex. A.) She has “done everything in [her] power to eliminate any hardship to plaintiffs due to Defendant’s absence.” (Ibid. at ¶ 6.)

Defense Counsel argues that the instant Motion should be granted because there is good cause to limit discovery on a non-disputed issue. (Mot. p. 4.) Given that there is no issue as to liability, “defendants’ [sic] depositions can yield nothing beneficial or relevant.” (Ibid. at p. 5.) Alternatively, the deposition should be taken when Defendant can be located. (Ibid. at p. 5.)

Regarding the interrogatories and requests for production, defense counsel states that Defendant should not have to answer these discovery requests, or alternatively, defense counsel should be permitted to provide responses related to damages and causation, without Defendant’s verification. (Ibid.)

Defense counsel argues that there is good cause for these orders because a party is entitled to discovery regarding relevant subject matter. (Ibid.) Given that Defendant’s whereabouts are unknown, and the parties have stipulated regarding Defendant’s liability, there is “no good cause to force Defendant’s deposition, responses to interrogatories, or inspection demands.” (Ibid.) Defendant is not an expert who can provide information regarding damages. (Ibid. at pp. 5-6.) Plaintiff’s persistent discovery requests are “made merely to harass and annoy Defendant.” (Ibid. at p. 6.)

Furthermore, defense counsel argues that because Defendant’s whereabouts are unknown, Plaintiff automatically obtains issue and evidence sanctions as to Defendant’s liability. (Ibid.) However, since defense counsel has made reasonable efforts on behalf of Defendant, Plaintiff should not be able to pursue greater sanctions in the form of default and terminating sanctions. (Ibid.) Defense counsel argues that “[t]here is nothing to be gained, other than harassment of Defendant, by insisting on the discovery.” (Ibid.)

Plaintiff opposes defense counsel’s Motion. First, Plaintiff argues that the Motion was untimely filed because verified discovery responses were due on or before March 28, 2022, and the protective order should have been requested at this time. (Oppos. p. 2.) If defense counsel could not locate Defendant, she should have filed the Motion upon receiving the discovery requests in January 2022, not eight (8) months later. (Ibid. at pp. 2-3.) The Court should deny the Motion on this basis as “Defendant’s significant delay” is “prejudicing Plaintiff’s right to discovery.” (Ibid. at p. 3.)

Plaintiff also argues that it is entitled to discovery for many reasons including understanding the affirmative defenses in Defendant’s Answer and ascertaining what evidence and which witnesses Defendant will present at trial. (Ibid. at p. 3.) Plaintiff states that Defendant’s “failure to participate in litigation does not afford Defendants relief from having to respond” and could be construed as abuse of the discovery process. (Ibid.)

Finally, Plaintiff argues that its “discovery requests are in no way annoying, embarrassing, oppressive, unduly burdensome, or expensive.” (Ibid. at p. 4.) Plaintiff has been accommodating to defense counsel’s requests for extensions and inability to locate Defendant. (Ibid.) However, given that defense counsel has not moved for a protective order until eight (8) months have passed since the discovery requests were propounded “Plaintiff is entitled to move forward with litigation as provided by CCP §2033.280 et seq.” (Ibid.)

The Court notes that defense counsel did not promptly move for a protective order given that she has been unable to locate Defendant for several months. Furthermore, the meet and confer requirement has not been satisfied as defense counsel has attached proof of email communication with Plaintiff’s counsel regarding her inability to locate Defendant between November 2021 and February 2022. (Rugh Decl. ¶ 5, Ex. A.) None of these communications discuss defense counsel’s intention to file a Protective Order or are near the date of filing of the Motion.

However, “‘[t]he issuance and formulation of protective orders are to a large extent discretionary”’ and a ruling on such motions will not be disturbed absent abuse of discretion. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316-17.)

Here, it is apparent that defense counsel has made diligent efforts to communicate with Plaintiff’s counsel and has good cause for failing to provide verified responses to the discovery requests. Furthermore, attorneys for Plaintiff and Defendant stipulated to Defendant’s negligence and liability on August 12, 2022. (8-15-22 Stipulation.) However, the Court also accepts Plaintiff’s argument that a blanket protective order would be prejudicial as it would interfere with its ability to conduct discovery in the instant case. (See Code of Civil Procedure § 2017.010.)

For these reasons, the Court GRANTS Defendant’s Motion for Protective Order for a limited period of 30 calendar days to allow defense counsel an additional 30 days to locate and communicate with Defendant.

Following the 30 days, Plaintiff may move forward in filing additional discovery motions or seeking terminating sanctions.

Defendant Luis Verlarde-Agraz’s Motion for Protective Order is GRANTED for a limited period of 30 calendar days.

[1] Defendant has attached Proof of Service to the Motion showing that the moving papers were served on Plaintiff on August 1, 2022, via electronic transmission. (8-1-22 Motion, pp. 19-20.) However, Defendant has not listed the email address of defense counsel, where Defendant sent the moving papers.

[2] On August 16, 2022, Defendant filed Notice of Errata, correcting the title of the Motion to “Motion for Protective Order.”