Judge Lee S. Arian, Case Number: 21STCV37132, Date: 2023-11-21 Tentative Ruling

On October 7, 2021, Plaintiffs Rodolfo Sanchez and Erlinda C. Sanchez (collectively, “Plaintiffs”) filed this action against Defendants Adrian Villasenor, Julio Cesar De Rojas, Jr., Al Asher and Sons, Inc., Rokstad Power, Inc., and Does 1 to 100, inclusive, asserting one cause of action for (1) motor vehicle and (2) general negligence.

The Complaint alleges the following. On or about November 1, 2019, in Montebello, California, the defendants negligently, carelessly, and/or recklessly owned, operated, used, drove, maintained, loaned, and/or entrusted their motor vehicle, causing it to collide with Plaintiff Rodolfo Sanchez’s vehicle. (Attachment to Complaint, Second Cause of Action – General Negligence, p. 1.)

On October 20, 2023, Plaintiffs filed the instant motion to compel the further responses of Defendant Rokstad Power, Inc. (“Defendant”) to Plaintiffs’ Request for Production of Documents (Set Two).

A Final Status Conference is scheduled for the same day as the hearing for this motion on November 21, 2023.

An Informal Discovery Conference is scheduled for the next day, November 22, 2023, after the hearing of this motion.

“Except as otherwise provided in this chapter [concerning time for completion of discovery], any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc. § 2024.020, subd. (a).)

“On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2024.050, subd. (a) [emphasis added].)

“In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, 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. § 2024.050, subd. (c).)

“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.

(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.

(3) An objection to the particular demand for inspection, copying, testing, or sampling.”

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also 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 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.” (Code Civ. Proc., § 2031.230.)

“If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.” (Code Civ. Proc., § 2031.240, subd. (a).)

“If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”

Upon receiving the responses to the requests for production, the propounding party “may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

The motion to compel further responses must be brought “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, [otherwise] the demanding party waives any right to compel a further response to the demand.” (Code Civ. Proc., § 2031.310, subd. (c).)

The motion must also be accompanied by a meet and confer declaration and a separate statement (unless the court has relieved a party from the separate statement requirement). (Code Civ. Proc., § 2031.310, subd. (b).)

Plaintiffs move to compel Defendant’s further responses to Plaintiffs’ Request for Production of Documents, Set Two (“RPD”) Nos. 110 through 114, arguing the following. “The instant matter stems from a November 1, 2019 three-vehicle collision in which [Defendant’s] employee, while operating a DuraStar truck with a trailer within the course and scope of his employment with Defendant, rear ended [Plaintiffs’] vehicle, causing them to forcefully collide with another vehicle.” (Motion, p. 1:3-7.) RPD Nos. 110 through 114 “seek production of records related to Defendant’s ‘Company Safety Policy,’ ‘Safety Program Manual’ ‘Safety Awareness Centre Boards,’ training provided to Defendant’s driver, and data, audio, and video from any systems of the subject DuraStar truck.” (Motion, p. 1:11-14.) On August 21, 2023, Defendant served verified responses to the RPDs. (Motion, declaration of Cinela Aziz (“Aziz Decl.”), ¶ 2, Exhibit 2.) After some meet and confer efforts, Defendant served further (but unverified) responses to the RPDs on October 18, 2023. (Aziz Decl., ¶ 9; Exhibit 10.) The next day, on October 19, 2023, Defendant served verifications to the further responses. (Aziz Decl., ¶ 11; Exhibit 12.) Defendant’s responses are not code compliant, and the boilerplate objections lack merit. (Motion, pp. 6:6-7:14.) Therefore, Plaintiffs conclude, the Court should order Defendants to provide further responses to Requests Nos. 110 to 114.

In opposition, Defendant argues the following. First, the motion is untimely as it is set to be heard on November 21, 2023, which is after the discovery motion cutoff date of November 13, 2023 (15 days before trial). Second, Defendant’s supplemental responses served on October 18, 2023, were code compliant; therefore, this motion is moot.

Even if the Court were to agree with Plaintiffs that Defendant’s objections are meritless and its supplemental responses are not code-compliant, as stated above (and as Defendant argues), “any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc. § 2024.020, subd. (a).)

Here, the discovery motion is untimely because trial is set for November 28, 2023, and Plaintiffs’ motion is set to be heard on November 21, 2023, less than 15 days before the trial.

Plaintiffs should have filed a motion to reopen discovery before bringing the instant motion. Indeed, the Court cannot construe the instant motion as a request to reopen discovery because Plaintiffs do not discuss (1) their diligence seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, and (2) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party (e.g., Defendant). (Code Civ. Proc. § 2024.050, subd. (b).) A proper, noticed motion to reopen discovery would give Defendant, other parties, and the Court the opportunity to address those factors.

Plaintiffs Rodolfo Sanchez and Erlinda C. Sanchez’s Motion to Compel Further Responses to Request for Production of Documents (Set Two) is DENIED.

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’s 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