Judge Kerry Bensinger, Case 19STCV35695 2023-03-28 Tentative Ruling

On October 7, 2019, Plaintiff Marthe De La Torre (“Plaintiff”) filed this action against Defendants Erjaei Seyed Hosein (“Hosein”) and Lyft, Inc. (“Lyft”) (collectively, “Defendants”) for injuries arising from a collision between Plaintiff, who was walking on a sidewalk, and Hosein, who was operating a Lyft motorized scooter.

On September 15, 2022, Lyft filed the instant motion to compel Plaintiff to serve further responses to Request for Production (Set Two) Nos. 41-94. Plaintiff opposed on February 7, 2023, and Lyft replied on February 14, 2023.

The motion came on for hearing on February 22, 2023. At the hearing, the Court found that Lyft’s separate statement was not code-compliant because Lyft filed it after Plaintiff opposed Lyft’s motion. For this reason, and because the parties pointed out that further discovery had been produced, the Court continued the hearing to allow Plaintiff to respond to Defendant’s separate statement. The Court also ordered the parties to meet and confer and to file a Joint Statement in a four columns side-by-side format. If Defendant believed the request to be significantly different, the Court required Defendant to explain the basis for that belief and the good cause. As to each request, the Court directed Plaintiff to state whether it had produced all responsive documents for each category and to identify all corresponding responsive Bates pages.

Under Code of Civil Procedure sections 2030.300, subdivision (a), and Section 2031.310, parties may move for a further response to interrogatories or requests for production of documents where an answer to the requests are evasive or incomplete or where an objection is without merit or too general. A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).)

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c); Code Civ. Proc., § 2031.310, subd. (c).) The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b); Code Civ. Proc., § 2031.310, subd. (b).)

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3).)

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery. (Code Civ. Proc., § 2023.010.)

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.

With regard to a motion to compel further responses to requests for production, Code of Civil Procedure Section 2031.310, subdivision (h) provides that sanctions shall be awarded against any party, person or attorney who unsuccessfully makes or opposes a motion to compel further responses, unless the Court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust.

Sanctions against counsel: The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party's attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.) “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)

Upon review of the Joint Statement, the Court notes Request for Production (Set Two) (“RPD”) nos. 72, 77, 87, and 94 are not at issue. With respect to the remaining requests, the Court rules as follows.

Lyft states the discovery requests seek information that is highly relevant to the subject matter of Plaintiff’s claims and damages. The Court agrees and finds that Lyft has good cause to make these requests, as they are related to Lyft’s liability and Plaintiff’s possession about Lyft’s liability.

Plaintiff objects to RPDs Nos. 41-46, 48, 55, 60-66, 68-71, 74, 75, 78-80, 85, and 86 stating that the requests have already been propounded and thus, are duplicative, oppressive, and harassing. Although a Court can sustain an objection if it is burdensome, it must be shown that the burden of answering is so unjust that it amounts to oppression. (West Pico Furniture Co. of Los Angeles v. Sup.Ct. (1961) 56 Cal.2d 407, 419.) In determining whether the burden is unjust, it must appear that the amount of work required to answer the questions is so great, and the utility of the information sought so minimal, that it would defeat the ends of justice to require the answers. (See Columbia Broadcasting System, Inc. v. Sup.Ct. (1968) 263 Cal.App.2d 12, 19.) The burden is on the objecting party to sustain the objection by detailed evidence showing precisely how much work is required to answer; conclusionary statements are not sufficient. (West Pico Furniture Co. of Los Angeles, supra, 56 Cal.2d at p. 417.) Plaintiff does not put forward any facts showing that responding to these requests would be harassing or oppressive.

As to Plaintiff’s objection that the RPDs are duplicative, Plaintiff cites Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490 (Professional Career Colleges) for the proposition that a litigant may not obtain through a second discovery request what has been lost in the untimely prosecution of a first request. The objection lacks merit because it ignores the correspondence between counsel which supports the inference that Plaintiff agreed to extend the time for Lyft to file a motion to compel further responses. (See Chinn-Liu Decl., ¶ 5, Ex. C.) Lyft further represents that Plaintiff’s counsel suggested that Lyft repropound the discovery. (Chinn-Liu Decl., ¶ 6.) Based on the foregoing, the Court finds that Professional Career Colleges is inapposite, and the motion is timely.

Plaintiff objects to RPDs Nos. 67, 69, 70, 73, and 76 because Lyft purportedly is already in possession of the information. These requests concern the documents in Plaintiff’s possession which provide the factual basis for Lyft’s liability. Such documents are relevant because they bear on Plaintiff’s ability to prove her allegations and the foundation for these allegations. Thus, these RPDs are not irrelevant, and Plaintiff does not justify its factual assertion concerning the documents that are supposedly in Lyft’s possession. These objections are overruled.

Also, Plaintiff provides no explanation for her objection on the grounds of attorney-client privilege, work product, and premature expert discovery. Further, as stated in Defendant’s reply brief, the parties exchanged expert witness information shortly after the motions were filed. (Reply, 6:22-7:7.) Plaintiff’s objections to relevance of the RPDs which ask about any prior diagnoses of depression or anxiety lack merit because Plaintiff asserts a claim for emotional distress and attributes her depression, anxiety, and PTSD to the incident. None of the RPDs are vague, ambiguous, overbroad, compound, or premature.

Defendant’s motion is GRANTED. Plaintiff is ordered to provide further responses to Defendant’s Request for Production (Set Two), excluding the requests not at issue (Nos. 72, 77, 87, and 95).

Because Plaintiff has unsuccessfully opposed this motion to compel further responses, imposition of monetary sanctions is mandatory. (Code Civ. Proc., § 2031.310, subd. (h).) Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is proper unless counsel shows that he or she did not counsel the discovery abuse. (Hennings, 58 Cal.App.5th at p. 81.) Counsel for Plaintiff does not meet their burden. Accordingly, the Court imposes monetary sanctions against Plaintiff and their counsel of record in the amount of $1,305, consisting of 6 hours at defense counsel’s rate of $425 and a $60 filing fee.

Defendant Lyft’s motion to compel further responses to Request for Admission (Set Two) Nos. 41-71, 73-76, 78-86, 88-93 is GRANTED.

Defendant Lyft’s motion for sanctions is GRANTED. Plaintiff and their counsel of record, jointly and severally, are ordered to pay sanctions to Defendant, by and through Defendant’s counsel, in the amount of $1,305.00

Sanctions are to be paid and further responses are to be provided within 20 days.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court