Judge: Lee W. Tsao, Case: 21STCV03216, Date: 2023-03-23 Tentative Ruling
Case Number: 21STCV03216 Hearing Date: March 23, 2023 Dept: C
MACEDO v. PORTILLO
CASE NO.: 21STCV03216
HEARING: 03/23/23
#5
TENTATIVE ORDER
I.
Plaintiff OMAR MACEDO’s Motion to Compel
Defendants DANIEL PORTILLO and CHARTER COMMUNICATIONS Further Responses to Form
Interrogatories (set one) No. 12.4 is DENIED.
II.
Plaintiff OMAR MACEDO’s Motion to Compel
Defendants DANIEL PORTILLO and CHARTER COMMUNICATIONS Further Responses to Form
Interrogatory No. 12.3 is DENIED, to Produce a Further Privilege Log, to
Produce the Statement of Daniel Portillo, and to Produce the Report of Jose
Evangelista is GRANTED.
III.
Plaintiff OMAR MACEDO’s Motion to Compel
Defendants DANIEL PORTILLO and CHARTER COMMUNICATIONS Further Responses to
Request for Production of Documents (set one) is GRANTED in part and DENIED
in part.
Moving Party to give Notice.
Although only one Motion appears on the Court’s calendar,
there are actually three (3) Motions scheduled for hearing today: (1)
Plaintiff’s Motion to Compel Further Responses to Form Interrogatories (set
one) No. 12.4 filed on November 28, 2022; (2) Plaintiff’s Motion to Compel
Further Responses to Request for Production of Documents (set one) filed on
December 6, 2022; and (3) Plaintiff’s Motion to Compel Further Reponses to Form
Interrogatory 12.3 filed on February 23, 2023.
This personal injury (motor vehicle) action was filed on
January 27, 2021. Plaintiff moves to compel Defendants DANIEL PORTILLO and
CHARTER COMMUNICATIONS, INC.’s (collectively “Defendants”) further responses to
discovery.
At the outset, Defendants argue that all 3 Motions should be
denied on procedural grounds as untimely because the instant Motions were filed
beyond 45 days after initial or supplemental responses were served. The
following rule applies to Motions to Compel Further Responses to Interrogatories:
“Unless notice of this motion is given within 45 days of the services of the
verified response, or any supplemental verified response, or on or before any
specific later date to which the propounding party and the responding party
have agreed in writing, the propounding party waives any right to compel a
further response to the interrogatories.” (CCP §2030.3000(c).) The following
rule applies to Motions to Compel Further Responses to Requests for Production
of Documents: “Unless notice of this motion is given 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, the demanding party waives any right
to compel a further response to the demand.” (CCP §2031.310(c).)
Defendants’ initial responses were served on or about July
6, 2021. Supplemental Responses were served thereafter on August 12, 2021 and
September 3, 2021. Accordingly, any Motion to Compel Further Responses was due
by October 18, 2021—at the latest. All three Motions at issue were filed beyond
that date.
Notwithstanding, the Court declines to deny the Motions on
grounds of untimeliness.
On September 27, 2021, Plaintiff filed Motions to Compel
Further Discovery Responses to Form Interrogatories and Requests for Production
of Documents. Plaintiff also requested monetary sanctions, set for hearing in
Dept. 30 of the Spring Street Courthouse on November 17, 2021. At the November
17, 2021, the Court continued the hearing to allow for an IDC to take place.
Both counsel were ordered to participate in the IDC and file appropriate IDC
paperwork at least two weeks prior to the scheduled IDC.
On January 6, 2022, the IDC was not held because Counsel for
Plaintiff failed to comply with the Order requiring parties to file the
appropriate IDC documents summarizing the discovery issues in dispute. The
Court noted that “Counsel are encouraged to meet and confer to try to resolve
the discovery issues in connection with the above discovery motions” and
continued the hearing to May 19, 2022.
On January 7, 2022, the case was reassigned and transferred
to Dept. F. of the Norwalk Courthouse. On January 18, 2022, all scheduled
hearing dates were vacated and Dept. F stated that “[m]otions that were
calendared in Department 30 of the Spring Street Courthouse that went off calendar
by virtue of the case being transferred to the Norwalk Court, may be reset by the
moving party calling the Law and Motion Department, Dept C… and selecting a new
hearing date and giving notice.” (Min. Order 01/18/22).
On November 8, 2022, Plaintiff’s Motion to Compel
Defendants’ Further Responses originally set for hearing on November 17, 2021
was heard in Dept. C. This Motion was denied for lack of Notice to Defendants
of the new hearing date. Importantly, the Court did not address the
merits/substance of the discovery dispute.
As indicated above, the Subject Motions were indeed filed
beyond 45 days of the dates that initial and/or supplemental responses were
served. However, the Court has reviewed the substance of the Subject Motions
and finds that they are substantively identical to the Original Motions filed
on November 17, 2021 (“Original Motions”). “The court may, upon any terms as
may be just, relieve a party… from a judgment, dismissal, order, or other
proceeding taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect.” (CCP§473(b).) A discovery dispute is a
“proceeding” within the meaning of §473(b). (Zellerino v. Brown (1991)
235 Cal.App.3d 1097, 1105-1106.) Moreover, it is well-settled that “the law
strongly favors trial and disposition on the merits….” (Maynard v. Brandon
(2005) 36 Cal.4th 364, 371-372.)
Here, Plaintiff timely sought a hearing date on the Original
Motions to Compel Further. A hearing on the merits never occurred due to the
transfer between courthouses. Courts have held that a party should not be
penalized for missing a filing deadline when the actions the court prevented
timely compliance. In Rojas v. Cutsforth (1978) 67 Cal.App.4th 774, the
plaintiff submitted a complaint for filing before the statute of limitations
expired. The court clerk improperly rejected the filing, and the statute of
limitations ran. The trial court denied the plaintiff’s request for nun pro
tunc filing of the complaint, and granted the defendant summary judgment on
statute of limitations grounds. The court of appeal reversed with instructions
to deem the complaint filed as of the date it was first presented. (See also Voit
v. Sup. Ct. (2011) 201 Cal.App.4th 1285.)
Plaintiff has shown that his failure to file “timely”
motions to compel further responses to discovery was due to mistake, inadvertence,
surprise, or excusable neglect, and that under the circumstances presented,
Plaintiff is entitled to relief under CCP §473(b). Consequently, the Court has
jurisdiction to rule on the merits of the subject Motions to Compel Further
Discovery. Below is a ruling on the merits.
The propounding party must, in addition, establish that it complied with
its obligation to “meet and confer.” (CCP §§2016.040, 2030.300(b);
2031.210(b).) Further, the propounding party is required to file a Separate
Statement that sets forth each item to which further responses are requested,
and that the factual and legal reasons for compelling it. (CRC Rule 3.1345(c).)
The Court finds that the meet and confer and separate statement
requirements have been met.
Motions to Compel
Form Interrogatories (set one)
“If the propounding party, on receipt of a
response to interrogatories, deems that (1) an answer to a particular
interrogatory is…incomplete…or (3) an objection to an interrogatory is without
merit or too general, that party may move for an order compelling further
response.” (CCP §2030.300(a).)
Plaintiff moves to compel both Defendant CHARTER COMMUNICATIONS, INC.
and Defendant DANIEL PORTILLO’s Further Responses to each identified FI.
FI. No 12. 4
FI No. 12. 4. Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any
photographs, films, or videotapes depicting any place, object, or individual
concerning the INCIDENT or plaintiff’s injuries? If so, state: (a) the number
of photographs or feet of film or videotape; (b) the places, objects, or
persons photographed, filed, or videotape; (c) the date the photographs, films,
or videotapes were taken; (d) the name, ADDRESS, and telephone number of the
individual taking the photographs, films, or videotapes; (e) the name, ADDRESS,
and telephone number of each PERSON who has the original or a copy.
The Motion is DENIED as to FI No. 12.4. Defendants
served supplemental responses in compliance with the Code. Defendants
indicate that 3 photographs exist, of the incident scene, that were taken on
February 9, 2019, taken by Defendants, that are in the possession of
Defendants. The 3 photographs have been produced. This is a full response, and
there is nothing further to compel.
FI No. 12.3
Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded
statement from any individual concerning the INCIDENT? If so, for each
statement state: (a) the name, ADDRESS, and telephone number of the individual
from whom the statement was obtained; (b) the name, ADDRESS, and telephone
number of the individual who obtained the statement; (c) the date the statement
was obtained; and (d) the name, ADDRESS, and telephone number of each PERSON
who has the original statement or copy.
Defendants object on the basis that FI No. 12.3 seeks information
protected from disclosure under the attorney work produce doctrine. There are
two forms of protection for attorney work product—absolute and qualified.
Absolute protection applies to a “writing that reflects an attorney’s
impressions, conclusions, opinions, or legal research or theories…. [This
information] is not discoverable under any circumstances.” (CCP §2018.030(a).)
Any other work product is subject to qualified protection, and qualified work
product “is not discoverable unless the court determines that denial of
discovery will unfairly prejudice the party seeking discovery in preparing that
party’s claim or defense or will result in an injustice.”(CCP §2018.030(b).)
The case Nacht & Lewis Architects v. Sup. Ct. (1996) 47
Cal.App.4th 214 addresses FI No. 12.3. Nacht held that a list of witnesses from
whom counsel took recorded statements at his or her own initiative constituted
qualified work product “because it would tend to reveal counsel’s evaluation of
the case by identifying the persons who claimed knowledge of the [facts] from
whom counsel deemed it important to obtain statements.” (Id. at
217.) The holding in Nacht was
significantly limited in Coito v. Sup. Ct. (2012) 54 Cal.4th 480, which
held: “Because it is not evident that form interrogatory No. 12.3 implicates
the policies underlying the work product privilege in all or even most cases,
we hold that the information responsive to form interrogatory 12.3 is not
automatically entitled as a matter of law to absolute or qualified work product
privilege. Instead, the interrogatory usually must be answered unless the
objecting party makes a preliminary or foundational showing that answering the
interrogatory would reveal the attorney’s tactics, impressions, or evaluation
of the case, or would result in opposing counsel taking undue advantage of the
attorney’s industry or efforts.” (McVeigh v. Recology San Francisco
(2013) 213 Cal.App.4th 443, citing Coito.) It is only when the response
would reveal counsel’s “premeditated and carefully considered selectivity”
regarding which witnesses, among many, are the most salient would the
interrogatory reveal work product of counsel.” (Coito at 501.) Coito
makes clear that the objecting party must submit evidence sufficient to make a
foundation showing that, because of the particular facts at issue in the case,
responding to FI No. 12.3 would reveal impressions of counsel, even though such
a response generally would not do so.
Here, Defendants have not made the evidentiary showing required by Coito
to uphold the objections.
The Motion to Compel FI No.12.3 is GRANTED. Defendants are ORDERED to
produce further responses to FI No. 12.3 by no later than 30 days from the date
of the Court’s issuance of this Order.
Motion to Compel Request for Production of Documents (set one)
“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 state of compliance with the demand is incomplete. (2) A
representation of inability to comply is inadequate, incomplete, or evasive.
(3) An objection in the response is without merit or too general.” (CCP
§2031.310(a).)
A motion to compel further responses to a request for production “shall
set forth specific facts showing good cause justifying the discovery sought by
the inspection demand.” (CCP §2031.310(b).)
RPD No. 1
Plaintiff moves to compel further responses to RPD No. 1. (as to CHARTER
PRODUCTION, INC. only), which seeks ANY and ALL DOCUMENTS YOU have identified
in YOUR responses to any discovery propounded by the PLAINTIFF.
The Motion is GRANTED as to RPD No. 1. In Supplemental Responses,
Defendant CHARTER PRODUCTION, INC. indicated that a written estimate or
evaluation had been conducted by E3 Collision, which is responsive to RPD No.
1. Defendant CHARTER PRODUCTION, INC. is ORDERED to produce further documents
responsive to RPD No. 1 (specifically the estimate provided by E3 Collision) by
no later than 30 days from the date of the Court’s issuance of this Order.
RPD No. 8
Plaintiff moves to compel Defendants’ Further Responses to RPD No 8,
which seeks: ALL DOCUMENTS evidencing mobile phone or any electronic device
billings and all data usage for each mobile phone or any electronic device
[whether registered or owned to YOU or to ANYONE ELSE] actually used by DANIEL
PORTILLO, except with YOUR attorneys, 15 minutes before the accident at issue.
The Motion is DENIED as to RDP No. 8. Defendants served responsive
supplemental responses in compliance with the Code. Both Defendants indicate:
“After a diligent search and reasonable inquiry, responding party has no such
documents in his/its custody, possession, or control as Daniel Portillo was not
on his phone in the 15 minutes before the incident.”
Sanctions
Given the mixed ruling, sanctions are DENIED.