Judge Kerry Bensinger, Case Number: 22STCV37815, Date: 2023-10-06 Tentative Ruling

RESPONDING PARTY: Defendant Los Angeles Metropolitan Transportation Authority

On December 5, 2022, Plaintiff, Anuja Rane, filed this action against Defendant, Los Angeles County Metropolitan Transportation Authority (“LACMTA”), for injuries arising from a motor vehicle collision between Plaintiff and an LACMTA bus operated by Jon Paul Jimenez. Plaintiff later amended the Complaint to name Mr. Jimenez as a defendant.

On August 14, 2023, Plaintiff filed these motions to compel LACMTA’s further responses to Plaintiff’s Special Interrogatories, Set One, Request for Production of Documents, Set One, and Request for Admission, Set One. Plaintiff seeks monetary sanctions against LACMTA.

LACMTA filed oppositions and requests sanctions against Plaintiff. Plaintiff filed replies.

Under Code of Civil Procedure sections 2030.300, 2031.310, and 2033.290, parties may move for a further response to interrogatories, requests for production of documents, and request for admissions 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); 2031.310, subd. (c), 2033.290, subd. (c).) The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., §§ 2030.300, subd. (b)(1); 2031.310, subd. (b)(2), 2033.290, subd. (b)(1).)

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.

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. (Code Civ. Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h), 2033.290, subd. (d).)

Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the interrogatory, demand for inspection, or request for admission.¿ (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.290, subd. (c), 2033.290, subd. (c).)¿ Here, Plaintiff filed these motions on September 14, 2023 consistent with the parties written agreement.^{^[1]} (See Oppositions, Declarations of Joshua Adelpour, Ex. B.) Accordingly, the motions are timely.

Additionally, as is required by the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts for the County of Los Angeles, Central District, Plaintiff has satisfied the IDC requirement prior to the hearing for the motions. (See 8/30/23 Notice of Informal Discovery Conference Outcome.)

Plaintiff seeks further responses to Special Interrogatories, Set One, Nos. 19, 20, 31, 39, 54, 55, 56, 57, 59, Request for Production, Set One, Nos. 6, 16, 17, 39, 40, 48, and 51, and Request for Admissions, Set One, Nos. 4, 5, 8, 11, 12, 24, 26, 29, 30, 31, 34, 35. The Court rules as follows.

Special Interrogatory Nos. 19, 54-59: In response to Special Interrogatory Nos. 19 and 54-59, LACMTA interposed meritless objections. These interrogatories are relevant. Thery are not vague nor ambiguous. A code-compliant response can be given. To the extent LACMTA objects based upon Mr. Jimenez’s privacy, LACMTA fails to establish that Mr. Jimenez’s right to privacy outweighs Plaintiff’s right to discovery. Further, Plaintiff offered to enter a protective order to minimize any privacy objection.

Undeterred, LACMTA argues a further response should not be compelled because these discovery requests seek records related to negligent hiring, training, and supervision of the bus driver. Given that LACMTA has already admitted vicarious liability, evidence of negligent hiring is barred. (See Diaz v. Carcamo (2011) 51 cal.4th 1147, 1158-61.) However, as Plaintiff points out, these requests are relevant to Mr. Jimenez’s alleged negligent driving. Simply because the discovery requests bear upon claims Plaintiff cannot maintain against LACMTA does not mean it bars their application to other viable claims.

Special Interrogatory No. 20: LACMTA interposed objections in its initial response and identified Plaintiff’s claim for damages in its supplemental response to No. 20. The objections are meritless. LACMTA’s supplemental response is also incomplete. LACMTA identified one non-privileged document. LACMTA must describe the remaining document for which it is asserting a privilege in order for Plaintiff to seek production and demand a privilege log to assess the basis of LACMA’s assertion of privilege. (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 293 [“If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.”].) LACMTA’s responses are deficient.

Special Interrogatory No. 31: The interrogatory states: IDENTIFY all training materials and/or classes YOU require YOUR employees who operate passenger buses (such as the one involved in the INCIDENT) for YOU to complete.

LACMTA objected to No. 31 as overbroad as to time and scope. Plaintiff represents being agreeable to limiting the time and scope to the year before and the year after the incident. LACMTA also identified the LACMTA Rulebook in a supplemental response. Plaintiff contends she cannot assess whether the supplemental response is adequate because LACMTA has yet to produce the LACMTA Rulebook. Plaintiff’s uncertainty does not compel a further response. LACMTA supplemental response to No. 31 is code compliant.

Special Interrogatory No. 39: The interrogatory states: If YOU had any oral COMMUNICATIONS relating to the INCIDENT with any witness to the INCIDENT (including Plaintiff ANUJA RANE), state the date of each COMMUNICATION.

LACMTA responded “not applicable.” Plaintiff contends this is an evasive response because LACMTA’s responses to Form Interrogatories indicate LACMTA’s employee spoke with bus passengers. LACMTA represents that it made a clerical error in its response to Form Interrogatory 12.3 which asks about written and recorded statements. LACMTA states it will provide an amended response to Form Interrogatory No. 12.3.

Based on the foregoing, the Court need not rule on Special Interrogatory No. 39. The motion to compel is MOOT. Plaintiff may renew their request to compel a further response if LACMTA fails to amend its response to Form Interrogatory No. 12.3.

The Code of Civil Procedure contemplates three forms of proper responses to a request for production: (1) a statement of compliance in full or in part (CCP § 2031.220); (2) a statement of inability to comply (CCP § 2031.230); and (3) a partial objection coupled with a statement of compliance or representation of inability to comply (CCP § 2031.240).¿¿¿

(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.”¿¿¿

And, (3) 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.”¿

Request for Production Nos. 6, 39, 40, 48, and 51: Here, LACTMA provided meritless objections to each Request for Production at-issue. Nos. 6, 16, 17, 39, 40, 48, and 51 are not overbroad or vague. Rather, they are sufficiently clear and calculated to the discovery of relevant information. Nor is Mr. Jimenez’s right to privacy in this case sufficient to overcome Plaintiff’s need for the discovery.

LACTMA also interposed an objection to No. 6 based on attorney-client privilege and work product doctrine. LACMTA states in its response to No. 6 that Mr. Jimenez and Supervisor Mark Geller prepared confidential reports on the day of the incident which were prepared with the intention they would be transmitted to LACMTA’s counsel However, missing from LACMTA’s response is an indication the report was completed at counsel’s direction and in anticipation of litigation. LACTMA’s response does not show the confidential reports are entitled to protection under either privilege.

Request for Production Nos. 16 and 17: LACMTA represents it will provide a further response to Nos. 16 and 17 to indicate that it does not have such documents.

(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.

Request for Admissions Nos. 4, 5, 8, 29, 31, 34, and 35: LACMTA asserted meritless objections to Nos. 4, 5, 8, 29, 31, 34, and 35. The responses are a mixture of objections: the information is privileged, the requests are premature, and the requests call for a legal conclusion. LACMTA’s objections based upon privilege lack merit because these requests do not seek privileged information, and, if so, LACMTA fails to identify the nature of the privilege or how a response invades such a privilege. Nor do the requests ask for the identification of privileged documents or communications. The requests are not premature because the parties have engaged in discovery. Indeed, the relevant documents such as the reports created on the day of the incident and the bus video are in LACMTA’s possession. Nor do these requests call for a legal conclusion. LACMTA’s further responses are warranted.

The motion as to Request for Admission Nos. 4, 5, 8, 29, 31, 34, and 35 is granted.

Request for Admission Nos. 11 and 12: Nos. 11 and 12 are related to liability and negligence. LACMTA provided supplemental responses that track section 2033.220, subdivision (c). As such, LACMTA contends it provided a code compliant response. But it is not enough to repeat the words of the statute. A reasonable inquiry includes investigation of information known or readily obtainable. Plaintiff points to known and readily obtainable evidence that is sufficient to allow LACMTA to admit or deny these requests such as the “bus video” and the incident reports created on the day of the incident. Further responses are warranted.

Request for Admission Nos. 24 and 26: LACMTA objected to Nos. 24 and 26 as vague and ambiguous. The Court disagrees. Nos. 24 and 26 are sufficiently clear to allow LACMTA to respond. As Plaintiff points out, the subject bus is equipped with a camera that captured the moments leading up to and including the collision. A further response is warranted.

As the Court has granted the motions as to nearly all at-issue discovery, sanctions are warranted. Sanctions are imposed against LACMTA in the amount of $2,600 which represents 4 hours at Plaintiff’s counsel’s hourly rate.

The motions are granted except as to Special Interrogatory, Nos. 31 and 39, and Request for Production Nos. 16 and 17. LACMTA is ordered to provide further responses to Plaintiff’s discovery requests as indicated herein.

Plaintiff’s request for sanctions is granted. LACMTA is ordered to pay sanctions in the amount of $2,600 to Plaintiff, by and through her counsel.

Further discovery responses are to be provided and sanctions 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.

[1] Defendant argues Plaintiff’s motions are untimely because they were electronically served. As such, Plaintiff was required to electronically serve these motions on September 11, 2023, not September 14, 2023. However, this argument fails given that the parties agreed in writing to allow Plaintiff to file these motions on September 14, 2023, and Defendant was able to file oppositions.