Judge Lee S. Arian, Case Number: 21STCV21291, Date: 2024-02-08 Tentative Ruling

This action arises from a motor vehicle accident which occurred on August 6, 2019, in which Plaintiff Umar Saifullahkahn Babar (“Plaintiff”) alleges he was injured. On June 8, 2021, Plaintiff filed a complaint against Defendants Nu To Mach (“Defendant”) and DOES 1 to 100, alleging causes of action for motor vehicle, general negligence, and negligence per se.

On December 11, 2023, the Court held an Informal Discovery Conference (“IDC”) and the Court indicated that “[c]ounsel for Plaintiff may file their motions to compel further if needed.” (12/11/23 Minute Order.) The Court’s minute order also indicated that “the parties agreed to extend the deadline to file motions to compel further for three (3) weeks.” (12/11/23 Minute Order.)

On January 11, 2024, Plaintiff filed and served the instant motion to compel Defendant’s further verified responses to Plaintiff’s Demands for Production of Documents, Nos.74-77 (the “Motion”). Pursuant to the Motion, Plaintiff seeks monetary sanctions against Defendant and its counsel of record, Christopher Babadjanian, jointly and severally, in the amount of $3,300.00. The Motion is made on the grounds that Defendant has been intentionally suppressing a written statement provided by Carlos Tobar (“Tobar”), who is a non-party witness.

On January 30, 2024, Defendant filed an opposition to the Motion indicating that the Motion is moot because Defendant has provided the requested further verified responses to Set Three of Plaintiff’s Demands for Production of Documents. (Babadjanian Decl., ¶ 8; Exhibit F.) As such, Defendant requests monetary sanctions against Plaintiff and Plaintiff’s counsel in the amount of $600.63.

On reply, Plaintiff contends that Defendant’s purported further responses are insufficient as: (1) Defendant only produced portions of the witness statement; and (2) Defendant’s purported further responses still contain meritless objections and are not code compliant.

In California, discovery statutes “must be construed liberally in favor of disclosure unless the request is clearly improper.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) “Under the discovery statutes, information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.) “When discovery requests are grossly overbroad on their face, and hence do not appear reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an intent to harass and improperly burden.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection to the response is without merit or too general. (Code Civ. Proc. § 2031.310(a)(1)-(3).) Where a party seeks to compel further responses to requests for production of documents, a showing of good cause must be established before production may be compelled. (Williams v. Superior Court (2017) 3 Cal.5th 531, 550.)

To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224.)

The Court finds that Plaintiff has satisfied the meet and confer requirement. (Code Civ. Proc., § 2016.040.) Counsel for Plaintiff, Alister S. Wong, Esq. (“Wong”), provides a declaration in support of the Motion setting forth efforts to obtain Tobar’s statement and resolve the dispute at issue in the Motion. (Wong Decl., ¶¶ 7-8; Exhibits 6 and 7.)

As to timeliness, the Court finds that the Motion is timely under Code Civ. Proc. § 2031.310 as the parties stipulated during the IDC to extend Plaintiff’s deadline to file related motions to January 11, 2024. (Wong Decl., ¶ 7; Exhibit 6.)

RFP No. 74 requests that Defendant provide “Any and all DOCUMENT(S) in YOUR possession, custody or control that relates to or constitutes STATEMENT(S) by Carlos Tobar.”

RFP No. 75 requests “Any and all DOCUMENT(S) in YOUR possession, custody or control that relates to or constitutes STATEMENT(S) by Carlos Tobar that were obtained by YOU.”

RFP No.76 requests “Any and all DOCUMENT(S) in YOUR possession, custody or control that relates to or constitutes STATEMENT(S) by Carlos Tobar that were received by YOU.”

RFP No.77 requests “Any and all DOCUMENT(S) in YOUR possession, custody or control that relates to or constitutes any correspondence, other than YOUR attorneys, concerning any and all STATEMENT(S) by Carlos Tobar that were received by YOU.”

Defendant provided an identical response to the RFPs at issue. Defendant stated “Objection. Litigation work product. Plaintiff has not established good cause for the production in that they could obtain their own statement. This demand seeks documentation that is equally available to plaintiff and plaintiff has failed to show any good faith attempts at obtaining said documentation on his own.” Defendant also provided the phone number and email address at which Tobar could be contacted.

Plaintiff propounded his third set of discovery on September 19, 2023, which included Demands for Production and Special Interrogatories. (Wong Decl., ¶ 3; Exhibit 2.) On October 9, 2023, Defendant served verified responses to Plaintiff’s third set of discovery where she revealed for the first time, in responses to special interrogatories, that she received a written statement from Carlos Tobar (“Tobar”) concerning the accident. (Id., ¶ 4; Exhibit 3.) Plaintiff has not been able to obtain the deposition of Tobar. (Id., ¶ 7.) Tobar is the only eyewitness to the collision between Plaintiff and Defendant and, to date, Plaintiff’s counsel has been unsuccessful in locating Tobar. (Id., ¶ 9.)

“[U]nlike interview notes prepared by counsel, statements written or recorded independently by witnesses neither reflect an attorney’s evaluation of the case nor constitute derivative material, and therefore are neither absolute nor qualified work product.” (Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 218.) A party resisting disclosure of a witness statement “must make a preliminary or foundational showing that disclosure would reveal his or her impressions, conclusions, opinions, or legal research theories.” (Coito v. Superior Court (2012) 54 Cal.4th 480, 500.) A party cannot shield an independently prepared witness statement by merely providing such statement to one’s attorney. (Nacht & Lewis Architects, Inc. v. Superior Court, supra, 47 Cal.App.4th 214, 218, fn.2.)

Initially, the Court will address Defendant’s argument that the Motion is moot because she provided verified further responses on January 25, 2024. (Badadjanian Decl., ¶ 8; Exhibit F.) The Court has reviewed such purported further responses and finds that Defendant still asserts the same objections raised in her initial responses. (Id.) The sole difference between the initial responses and purported further responses is Defendant stating that “[w]ithout waiving the foregoing objections, and while continuing to assert privilege and work product objections to the broad scope of documents requested in this demand, attached hereto is a copy of the unsolicited email received from an email address purporting to belong to a person by the name of Carlos Tobar.” (Id., Exhibit F at 2:20-23.)

On reply, Plaintiff asserts that the further response is insufficient because Defendant did not produce the entirety of the e-mailed witness statement from Tobar. Plaintiff asserts that the e-mail statement produced by Plaintiff does not contain standard e-mail metadata and therefore Defendant’s purported further response is insufficient. (Badadjanian Decl., ¶ 8; Exhibit F.)

The Court has reviewed Defendant’s further responses—which attach the purported witness statement at issue—and finds that Defendant did not provide the entirety of Tobar’s emailed statement. (Id.) It appears that Defendant provided a cropped screenshot of Tovar’s emailed witness statement. (Id.) As a result of this limited response, the Motion is not moot, albeit, Defendant has, in fact, provided a supplementary response. When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409). Based on this discretion, the court can and will determine if they are code-compliant. (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

The Court finds that Defendant’s objections concerning litigation work product are without merit. It is undisputed that in her responses to Plaintiff’s third set of special interrogatories, Defendant stated that “State Farm representative received a call from Carlos Tobar on November 8, 2019 advising that he witnessed the accident. A written statement was received from Carlos Tobar on November 9, 2019 via email.” (Wong Decl., Exhibit 3.) Thus, Tobar’s statement is not attorney work product as it is, in fact, a statement from an independent witness. Moreover, Defendant has not provided a sufficient response or privilege log that provides “sufficient information to permit the court to determine whether the asserted privilege protects specific documents from disclosure” and, as such, the Court “may rule on the merits of the objection.” (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1127.) Defendant has failed to substantiate her objections to the discovery at issue.

Accordingly, the Court finds that Defendant’s initial responses and purported further responses are not code-compliant and further response is warranted containing the e-mail metadata.

The Court finds that Plaintiff has shown good cause to compel further responses to Plaintiff’s Demands for Production of Documents, Set Three. Plaintiff’s counsel states that Tobar is the only eyewitness to the collision and the investigating officer failed to obtain Tobar’s statement. (Wong Decl., ¶ 9.) Thus, obtaining Tobar’s statement is relevant to Plaintiff’s claims in this action.

Code Civ. Proc. § 2023.010(d) provides that a misuse of the discovery process is failing to respond or to submit to an authorized method of discovery. Code Civ. Proc. § 2023.010(h) states that a misuse of the discovery process includes making or opposing, unsuccessfully and without substantial justification, a motion to compel or limit discovery. A court may impose a monetary sanction against a party engaging in the misuse of the discovery process or any attorney advising such conduct under Code Civ. Proc. § 2023.030(a). A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.)

Wong’s hourly rate is $550.00 per hour, and Wong spent four (4) hours preparing the Motion and separate statement and 0.25 hours preparing the proposed order, 0.25 hours preparing the supporting declaration and its exhibits, anticipates spending one (1) hour preparing a reply brief and 0.5 hours preparing and participating in the hearing on the Motion (Wong Decl., ¶ 12.) . (Id.) Wong also anticipates incurring a $60.00 filing fee as to the Motion. (Id.) Plaintiff thus seeks $3,300 in sanctions.

The Court GRANTS in part Plaintiff’s request for monetary sanctions, reducing the amount slightly to reflect an amount the Court deems reasonable for this motion. The Court awards Plaintiff reasonable monetary sanctions in the amount of $2500.00. (The Court denies Defendant’s request for sanctions.) Monetary sanctions are to be paid to Plaintiff by Defendant and Defendant’s counsel of record, Christopher Babadjanian, jointly and severally, within 30 days of the date of notice of this order.

The Court therefore GRANTS the Motion and ORDERS Defendant to provide further verified, complete, and code-compliant responses, without objections, to Plaintiff’s Demands for Production, Set Three, Numbers 74-77 within 30 days of the date of notice of this order.

The Court GRANTS IN PART Plaintiff’s request for monetary sanctions and awards Plaintiff reasonable monetary sanctions in the amount of $2500.00 to be paid by Defendant and Defendant’s counsel of record, Christopher Babadjanian, jointly and severally, within 30 days of the date of notice 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. Lee S. Arian

Judge of the Superior Court