Judge: Kerry Bensinger, Case: 21STCV33539, Date: 2023-08-09 Tentative Ruling

Case Number: 21STCV33539    Hearing Date: August 10, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:      August 10, 2023                                            TRIAL DATE:  January 24, 2024

CASE:                         Kevin McElrath v. Los Angeles County Metropolitan Transportation Authority

CASE NO.:                 21STCV33539

MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY

MOVING PARTY:               Plaintiff Kevin McElrath

RESPONDING PARTY:     Defendant Los Angeles Metropolitan Transportation Authority

I.          BACKGROUND

On September 10, 2021, Plaintiff, Kevin McElrath, filed this action against Defendant, Los Angeles County Metropolitan Transportation Authority (“LACMTA”), for injuries Plaintiff sustained as a passenger of a LACMTA bus.

On September 20, 2022, Plaintiff served LACMTA with Special Interrogatories, Set One (“Set One”).  LACMTA served untimely responses.  Further, Plaintiff took issue with the responses.   On December 13, 2022, Plaintiff served LACMTA with Form Interrogatories, Set Two, and Special Interrogatories, Set Two.  LACMTA served timely responses, however, Plaintiff took issue with the discovery responses.  Meet and confer efforts did not resolve the disputes.

The parties participated in an Informal Discovery Conference on March 29, 2023 in an attempt to resolve the discovery dispute.  Following the IDC, LACMTA provided further responses to the foregoing discovery.  However, issues with the discovery responses remain.

On May 30, 2023, Plaintiff filed these motions to compel further responses to the Form Interrogatories and Special Interrogatories.  Plaintiff requests sanctions against LACMTA.

LACMTA has filed Opposition and requests sanctions against Plaintiff’s counsel. Plaintiff has filed Replies.

II.        LEGAL STANDARDS FOR COMPELLING FURTHER RESPONSES 

            Under Code of Civil Procedure section 2030.300, parties may move for a further response to interrogatories where a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or where an objection is without merit or too general.¿¿ 

            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).)¿ The motions must also be accompanied by a meet and confer declaration.¿ (Code Civ. Proc., § 2030.300, 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).)¿¿¿ 

Monetary Sanctions¿¿ 

            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.¿¿ 

            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.”¿ (Code Civ. Proc., § 2030.290, subd. (c).)¿¿¿  

III.       DISCUSSION

            Plaintiff seeks further responses to the following:

·         Special Interrogatories, Set One, Nos. 1-3, 5, 24, and 27-47

·         Special Interrogatories, Set Two, Nos. 55, 58-63, 68-73, 76, 101, 106-111, 113-123, and 134-135.

·         Form Interrogatories, Set Two, No. 17.1 with regards to Requests for Admissions Nos. 36 to 48.

            Special Interrogatories, Set One

            Plaintiff is entitled to a further response to Nos. 1-3, 5, 24, and 27-47.  A review of LACMTA’s responses to Nos. 2, 3, 5, 24, and 27-47 reveal objection-only responses.  However, LACMTA waived those objections when it served untimely responses.  (Code Civ. Proc., § 2030.290, subd. (a).)¿  With regards to No. 1, Plaintiff asked “State how the INCIDENT occurred.”  LACMTA answered, in part,  “See responses to Form Interrogatories –General, 20.0 series (“How the Incident Occurred – Motor Vehicle”), which responses are incorporated by reference herein.”  This is not a straightforward response.  Plaintiff is left to guess which of LACMTA’s responses to the Form Interrogatories 20.0 series is applicable.

            Accordingly, the motion to compel further responses to Special Interrogatories, Set One, Nos. 1-3, 5, 24, and 27-47 is granted.[1]

            Special Interrogatories, Set Two

            LACMTA asserted numerous objections without merit in response to Special Interrogatories, Set Two, Nos. 55, 58-63, 68-73, 76, 101, 106-111, 113-123, and 134-135.  LACMTA objected based on the Rule of 35, arguing that Plaintiff’s declaration of necessity did not justify propounding more than 35 special interrogatories.  However, the Court finds that the declaration was sufficient.  Thus, the proper vehicle for challenging the declaration was a motion for protective order.  (Code Civ. Proc., § 2030.090, subd. (a).)¿  LACMTA did not avail itself of that procedure.  

            LACMTA also asserted objections based on overbreadth and that the discovery was not reasonably calculated to lead to the discovery of admissible evidence.  Not so.  The discovery is not overbroad, nor does LACMTA clearly demonstrate that the discovery would not lead to admissible evidence.  With regards to Nos. 62, 63, and 70, LACMTA asserted frivolous objections based on invasion of the bus operator’s privacy and subsequent remedial measure. 

            With regards to Nos. 55, 58, 59, 60, 61, 73, 76, 134, and 135, these interrogatories seek information about whether LACMTA’s bus driver in the subject incident was acting within the course and scope of his employment.  Given that LACMTA has stipulated that the bus operated was acting within the course and scope of his employment and that LACMTA is vicariously liable for the bus operator’s negligence, the Court finds that further responses are not required for

Nos. 55, 58, 59, 60, 61, 73, 76, 134, and 135.

             In sum, the motion to compel further responses to Special Interrogatories, Set Two, is granted as to Nos. 62, 63, 68-72, 76, 101, 106-111, and 113-123; the motion is denied as to Nos. 55, 58, 59, 60, 61, 73, 76, 134, and 135.

            Form Interrogatories, Set Two

            Plaintiff seeks a further response to Form Interrogatory No. 17.1, as it relates to Requests for Admissions Nos. 36-48.  LACMTA objected to the interrogatory based on the Rule of 35.  For the same reasons stated previously, the Court rejects LACMTA’s objections based on the Rule of 35. 

            In its supplemental responses, LACMTA asserted objections based on subsequent remedial measures.  However, the rule against subsequent remedial measures is one of admissibility, not discoverability.  (Bank of the Orient v. Superior Court (1977) 67 Cal.App.3d 588, 589.)  The objection lacks merit. 

            Accordingly, the motion to compel further responses to Form Interrogatory 17.1, as it relates to Requests for Admissions Nos. 36-48 is granted.

            Monetary Sanctions

            Plaintiff requests sanctions against LACMTA and its counsel.  The Court finds that sanctions are not proper.  Plaintiff proffered defective separate statements and pursued discovery despite LACMTA’s stipulation admitting vicarious liability for its bus operator’s conduct.  Sanctions against LACMTA’s counsel is not warranted because Plaintiff did not state in its notice of motion that it was seeking sanctions against counsel.  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.¿¿ 

            LACMTA seeks sanctions against Plaintiff and his counsel.  The Court also finds that sanctions are not warranted given that the Court has granted Plaintiff’s motions to much of the at-issue discovery. 

            In sum, the requests for sanctions are denied.

IV.       CONCLUSION

            The motions to compel as to Special Interrogatories, Set One, Nos. 1-3, 5, 24, and 27-47, Special Interrogatories, Set Two, is granted as to Nos. 62, 63, 68-72, 76, 101, 106-111, and 113-123, and Form Interrogatory 17.1, as it relates to Requests for Admissions Nos. 36-48 are granted.  LACMTA is ordered to provide further responses within 20 days of this order.

            The motion to compel as to Special Interrogatories, Set Two, Nos. 55, 58, 59, 60, 61, 73, 76, 134, and 135 is denied.

            The requests for sanctions are denied.

Moving party to give notice. 

Dated:   August 10, 2023                                ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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.