Judge Kerry Bensinger, Case 20STCV11847 2023-04-20 Tentative Ruling

On March 25, 2020, plaintiff Sean Casey (“Plaintiff”) filed this action against defendant CVS Pharmacy, Inc. (“CVS”), and Does 1 to 50, for premises liability and negligence.

On July 23, 2020, Plaintiff filed an amendment to the complaint to designate as Doe 1 defendant GRB Service Systems, Inc. (“GRB”) (previously designated as Doe 1 under the incorrect name of Southwestern Services). On the same day, Plaintiff filed an amendment to the complaint to designate as Does 2 defendant Central Aire Heating & Air Conditioning Service, Inc.

On August 16, 2020, Plaintiff filed an amendment to the complaint to designate as Doe 3 defendant Garfield Beach CVS, LLC (“Garfield Beach CVS”).

On April 21, 2022, Plaintiff filed this motion to compel Garfield Beach CVS’s (hereinafter “Defendant”) further responses to Plaintiff’s Requests for Production, Set One. Plaintiff does not indicate in the notice of motion or amended[1] notice of motion against whom monetary sanctions are sought.

2031.310, a propounding party may move for an order compelling a further response to a demand for inspection if an answer to a particular demand is evasive or incomplete or an objection to a demand is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a)(1)-(3).) 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 motion 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., § 2031.310, subd. (c).) The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b)(2).)

Finally, California 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).)

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.

subdivision E of the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts for the County of Los Angeles, Central District (“Eighth Amended Hub Order”), Personal Injury (“PI”) Hub Courts will not hear Motions to Compel Further Discovery Responses to Discovery until the parties have engaged in an Informal Discovery Conference (IDC). PI Hub Courts may deny or continue a Motion to Compel Further Responses to Discovery if parties fail to schedule and complete an IDC before the scheduled hearing on a Motion to Compel Further Responses to Discovery.

After meeting and conferring about available dates for an IDC, the moving/propounding party shall reserve an IDC through [the Court Reservation System (“CRS”)] and provide notice of the reserved IDC to the opposing/responding party by filing and serving an Informal Discovery Conference Form for Personal Injury Courts (LASC CIV 239) at least 15 court days before the IDC and attach the CRS reservation receipt as the last page. The IDC will not be “scheduled” by the court until the IDC Form is filed. The opposing/responding party may file and serve a responsive IDC Form at least 10 court days before the IDC. All parties shall briefly set forth their respective positions on the pending discovery issues on the IDC Form.

Plaintiff’s motion is timely, and Plaintiff complied with its IDC obligations. Further, Plaintiff has complied with the meet and confer requirement. (See Moreno Jr. Decl.)

Plaintiff moves to compel Defendant’s further responses to Request for Production (“RPD”). The Court rules as follows.

Defendant responded as follows to these requests: “Defendant has conducted a diligent and reasonable inquiry into this matter. Defendant cannot comply with this request because it has no responsive documents or video in its possession. Discovery is ongoing. Defendant reserves the right to amend and/or supplement this response.

Plaintiff argues that Defendant’s responses are not code compliant for two reasons. First, Defendant failed to indicate the reason for its inability to comply, and second, Defendant has not provided who may have responsive documents. “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc. § 2031.230.)

The point is well-taken. The Court finds good cause exists to compel Defendant to provide further responses to RPD Nos. 8-11, 15, 17, 24, 25, 29, 30, 34, 35, 36, 41, and 43-51

Defendant produced documents, attached as Exhibits 1-9, in response to Nos. 6, 7, 26, 32, 33, and 37.

Plaintiff argues that each response is not code compliant because Defendant did not indicate whether it has produced documents in whole or in part to Plaintiff’s requests. (See Code Civ. Proc. § 2031.240.)

The Court finds good cause exists to compel Defendant to provide further responses to RPD Nos. 6, 7, 26, 32, 33, and 37.

Defendant responded as follows to Nos. 27 and 28. “Defendant has conducted a diligent and reasonable inquiry into this matter. Defendant cannot comply with this request because it has no responsive documents in its possession, other than privileged communications and/or those documents produced by the Parties to this action through discovery, copies of which are equally available to Plaintiff. Discovery is ongoing and Defendant reserves the right to amend and/or supplement this response.”

Plaintiff argues the foregoing objection requires a further response because Defendant did not provide enough information to evaluate the merits of the claim. (See Code Civ. Proc. § 2031.240(b)(2), (c)(1).) Nor has Defendant provided a privilege log.

Good cause exists to compel Defendant to provide further responses to RPD Nos. 27 and 28. The response is unclear because Defendant suggests it may have responsive documents but they are privileged (and Defendant has not produced a privilege log). Moreover, Defendant cannot refer to documents previously produced or to documents that are equally available to Plaintiff without specifically identifying the documents.

Exhibits 2, 3, 4, 10, 11, and 13: Defendant indicated it would produce responsive documents upon entry of protective order. However, Defendant has not provided a protective order. Defendant must either prepare an agreeable protective order or produce the photographs. The motion to compel the requested documents is granted.

imposes sanctions against Defendant in the reduced amount of $1,815 representing 5 hours at Plaintiff’s counsel’s hourly rate of $350 and $65 filing fee.

The unopposed motion is granted. Defendant Garfield Beach CVS, LLC is to provide further responses to Request for Production Nos. 6-11, 15, 17, 24-30, 32-37, 41, and 43-51. Additionally, Defendant is ordered to file or to provide Plaintiff with the protective order with respective to Exhibits 2, 3, 4, 10, 11, and 13.

Defendant is ordered to pay monetary sanctions to Plaintiff Sean Casey, by and through Plaintiff’s counsel, in the amount of $1,815.

Defendant is ordered to provide further responses and the protective order and to pay sanctions within twenty (20) days of this Order.

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

[1] Filed December 16, 2022.