Judge Kerry Bensinger, Case Number: 24STCV03765, Date: 2024-12-03 Tentative Ruling

PLAINTIFF KATTHRYN BOUSKILL’S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS

This is an insurance bad faith action. Plaintiff Kathryn Bouskill (Plaintiff) had a homeowner’s insurance policy covering her home with defendants Farmers Group, Inc. (FGI) and Farmers Insurance Exchange (FIE) (collectively, Defendants). Plaintiff’s house suffered substantial damage from wind-driven rain. Defendants inspected the home and estimated the actual cash value of the damage was $79,027.56. However, the true cost of repair was over four times higher. Plaintiff alleges that Defendants handled, investigated, and adjusted her claim with the intent to minimize the water-damaged related property losses. Plaintiff further alleges that Defendants underpaid and delayed payment of her claim, and failed to respond to Plaintiff’s inquiries, among other things. This action followed.

On March 27, 2024, Plaintiff served Defendants with Request for Production of Documents (RPD), Set One. As relevant here, FIE provided objection-only responses to RPD Nos. 21-25. Plaintiff took issue with the responses.

On October 3, 2024, the parties participated in an Informal Discovery Conference regarding the discovery dispute. The issues were not resolved. The court directed the parties to meet and confer regarding outstanding issues. Plaintiff was ordered to file a Notice of Outcome of the meet and confer.

On October 7, 2024, Plaintiff filed a Notice re: Informal Discovery Conference Hearing. Plaintiff states the court sided with Plaintiff and expressed the view that adjuster performance evaluations are potentially relevant, particularly as to information the evaluations may contain about the timeliness of the adjusters’ response to communications from policyholders, and that the information contained therein is not sensitive.

On October 22, 2024, Plaintiff filed a Notice of Outcome. Plaintiff states the parties continue to disagree over production requests concerning performance evaluations of adjusters. Plaintiff agreed to limit the requests to the adjusters’ performance as they relate to the handling of homeowners insurance claims and other metrics that relate to customer service, such as

responsiveness to policyholder communications. Plaintiff also proposed to limit the requests to performance evaluations on or after January 1, 2020. FIE did not agree to these limitations.

On October 29, 2024, Plaintiff filed this Motion to Compel Further Responses to Request for Production of Documents. Plaintiff seeks FIE’s further response to production requests Nos. 21-25 and sanctions against FIE and its counsel.

Under Code of Civil Procedure section 2031.310, parties may move for a further response to 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 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 motion 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(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.¿¿¿

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., § 2031.310, subd. (h).)¿

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.)¿

Plaintiff seeks a further response to production requests nos. 21-25. The discovery requests seek all performance evaluations, performance reviews, performance development

summaries, and other evaluations for Alexis Williams (No. 21), Zechariah Millette (No. 22), Lindsey Speigl (No. 23), Stacie Byrd (No. 24), and Michael Sarver (No. 25), for the time period from January 1, 2018, to the present. Pursuant to Plaintiff’s proposed limitation, the requests are limited to performance evaluations for the time period from January 1, 2020, to the present.

In response, FIE objected on the grounds that the requests call for information and materials not reasonably calculated to lead to discovery of admissible evidence and which are protected from disclosure by third party privacy rights.

The court disagrees with FIE’s objection. The adjusters (Williams, Millette, Speigl, Byrd, and Sarver) are FIE’s employees. Although they are not defendants in this action, their conduct in the handling of Plaintiff’s insurance claim and FIE’s knowledge of that conduct is a key component of this litigation. Plaintiff alleges the adjusters mishandled her claim, which includes not responding to her communications about the claim. If this conduct was noted in the adjusters’ performance evaluations, FIE may well have known or should have known that these adjusters were not reasonably handling claims. Contrary to FIE’s position, the requests are directly relevant to Plaintiff’s claims. Further, Plaintiff states there is a protective order in place, which obviates or mitigates any concerns of the intrusion into the adjusters’ privacy. A further response is warranted.

Plaintiff requests sanctions against FIE and its counsel. Given that the requests concern the privacy of FIE’s employees, the court finds FIE opposed this motion with substantial justification. The court declines to impose sanctions.

Plaintiff’s Motion to Compel Further Responses is GRANTED. Pursuant to Plaintiff’s proposal, the discovery requests are limited to performance evaluations for the adjusters from January 1, 2020, to the present. Defendant Farmers Insurance Exchange is ordered to provide a further response to the modified discovery requests within 30 days of this order.

Kerry Bensinger

Judge of the Superior Court