Judge Kerry Bensinger, Case 20STCV22417 2023-02-22 Tentative Ruling

On November 25, 2020, Plaintiff Simon Cohen (“Plaintiff”) filed a Complaint alleging causes of action for negligence arising from a motor vehicle accident. The Complaint was filed against several defendants, including Defendant Genel Laguerre. (“Defendant”).

Plaintiff moves to compel Defendant’s further responses to Form Interrogatories (Set One) and Requests for Production (Set One).

A motion to compel further responses to form interrogatories may be brought if the responses contain: (1) answers that are evasive or incomplete; (2) an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response; or (3) unmerited or overly generalized objections. (Code Civ. Proc. § 2030.300(a).)

Under Code of Civil Procedure section 2031.310, the propounding party may move for an order compelling a further response if the propounding party deems that the responses are evasive, incomplete, an objection is without merit or too general. A motion requesting an order compelling further responses to a demand for production of documents must set forth specific facts showing good cause justifying the discovery sought by the demand. (Code of Civ. Proc., § 2031.310, subd. (b)(1).) If good cause is shown, the burden shifts to the responding party to justify any objections made to document disclosure. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) A response must state an agreement to comply, a representation of inability to comply, or an objection to all or part of the demand. (Code Civ. Proc. § 2031.210(a).)

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).)

Plaintiff served Form Interrogatories (Set One) and Requests for Production (Set One) on Defendant on July 26, 2021. (Both Moghadam Decl., Ex. A.) Defendant served his responses on October 8, 2021. (Moghadam Ex. B.) Plaintiff states that the parties had multiple IDCs and met and conferred. On June 27, 2022 and September 2, 2022, and November 9, 2022, Defendant served a supplemental response to the Form Interrogatories. (Moghadam Decl. Exhs. C, D, E, and F.) On November 9, 2022, Defendant served a further response to the demand for production. (Moghadam Decl. Ex. B.)

In opposition, Defendant argues that the motion was untimely, and Plaintiff failed to meet and confer. (Conley Decl. ¶8-9.) Plaintiff filed this motion on January 4, 2023, and submits evidence that the parties agreed to an extension. (Moghadam Decl. Exh. I.) Defendant has filed nothing to suggest that they did not agree to this extension. Plaintiffs have also satisfied the meet and confer requirement. (Moghadam Decl. Exh. I.)

Defendant submitted supplemental further responses to the Form Interrogatories and Requests for Production on January 24, 2023. (Conley Decl. Ex. 3.) Plaintiff has filed replies stating that the further responses remain deficient.

Plaintiff argues the responses remain deficient because Defendant’s further responses are not sufficiently specific when Defendant refers to “all medical records.” However, reviewing Defendant’s second further responses, the Court finds that Plaintiff’s argument is without merit. Defendant does not generically state that all evidence of further injuries is within “all medical records.” Defendant specifies the injuries in dispute and refers to specific healthcare providers by name. Furthermore, Defendant provides the names of the specific documents that support Defendant’s contentions. These responses are sufficient.

The Court DENIES Plaintiff’s motion to compel further responses to the Form Interrogatories.

Code of Civil Procedure Section 2031.310 provides that “[o]n receipt of a response to demand for inspection . . ., the demanding party may move for an order compelling further response if the demanding party 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) [a]n objection in the response is without merit or too general.” (C.C.P. § 2031.310(a).) A motion to compel further responses must be made within 45 days of service of the disputed responses. (CCP § 2031.310(c).) The responding party may grant the demanding party an extension of the 45 day deadline, but the extension must be made by written agreement. (Id.) The motion must set forth specific facts showing good cause justifying the discovery sought by the demand. (CCP § 2031.310(b)(1).)

The Code of Civil Procedure contemplates three forms of proper responses to a request for production: a statement of compliance in full or in part (CCP § 2031.220); a statement of inability to comply (CCP § 2031.230); and a partial objection coupled with a statement of compliance or representation of inability to comply (CCP § 2031.240).

A statement of compliance under section 2031.220 has two parts: (1) the responding party “shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part,” and (2) “that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”

A representation of inability to comply under section 2031.230 has three parts: the statement must (1) affirm that a diligent search and reasonable inquiry has been made in an effort to comply, and (2) the statement shall 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 third part comes into play if the responding party knows or believes someone else has possession of the documents: if so, “[t]he 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.”

Plaintiff argues Defendant’s response is not code compliant because Defendant qualifies his response by indicating he will produce all non-privileged documents. This is an equivocal response and is non-compliant. Plaintiff’s motion to compel is GRANTED. Defendant must either produce all responsive documents or stand on his position there are privileged documents and provide a privilege log.

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(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.

FROGs: Although the motion is denied, the denial comes on the heels of several supplemental filings by the Defendant. Objections to FROGS defeat the very purpose of FROGS. The supplemental responses, while ultimately helpful, similarly require opposing counsel to chase a moving target. The final responses could have been provided in the first instance.

RFPs: Plaintiff seeks sanctions for Defendant’s failure to identify and provide responsive documents. Because the Court grants the motion, sanctions are mandatory. The amount of the sanctions, however, is mitigated by the nature of the effort to reach a result, and Plaintiff’s concurrent effort to pursue the FROGs.

Sanctions are imposed against Defendant and counsel of record, jointly and severally, for the two motions, in the amount of $2,613.00, consisting of 5 hours at defense counsel’s rate of $485 ($2,425) and a $94 x 2 ($188) fees.

Plaintiff’s Motion to Compel Defendant’s Further Responses to Form Interrogatories (Set One) is Denied.

Plaintiff’s motion to Compel Defendant’s Further Request for Production is GRANTED. Plaintiff must provide code compliant responses within 20 days of the date of this order.

Sanctions are imposed against Defendant and counsel of record, jointly and severally, for the two motions, in the amount of $2,613.00 and are to be paid within 30 days of the date 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