Judge Lee W. Tsao, Case Number: 23NWCV01335, Date: 2024-11-19 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV01335, Date: 2024-11-19 Tentative Ruling

Case Number: 23NWCV01335 Hearing Date: November 19, 2024 Dept: C

Patrick Dicorato, et al. vs Deshawn Jarvis, et al.

Case No.: 23NWCV01335

Hearing Date: November 19, 2024 @ 9:30 a.m.

Tentative Ruling

Plaintiff Patrick DiCorato’s Motion to Compel Further Responses to Requests for Production of Documents from Defendant Tonya Castaneda is GRANTED in part and DENIED in part as set forth below. Defendant shall serve verified, code-compliant responses within 30 days, absent agreement by the parties to a longer period. The Court imposes sanctions in the amount of $1,560.00 upon Defendant and Defendant’s counsel, jointly and severally, payable in 60 days.

Moving party to give notice.

Background

This consolidated action arises from a multi-car collision on October 23, 2021 near Norwalk, CA. All parties were traveling westbound on SR-91 when traffic stopped suddenly. TONYA CASTANEDA rearended DASHAWN JAMOR JARVIS who rearended NATHALIE TRAN who rearended PATRICK DICORATO and JAXSON DICORATO who rearended TINA HAHN. DICORATO, HAHN and JARVIS filed separate lawsuits which were consolidated per stipulation on August 23, 2024.

On February 16, 2024, Plaintiff PATRCIK DICORATO (“Plaintiff”) filed this motion to compel further responses to Requests for Production of Documents (Set One) from Defendant TONYA CASTANEDA (“Defendant”) pursuant to CCP §2031.230. Plaintiff also moves for sanctions.

Meet and Confer Requirement

A motion¿to compel further responses to requests for production “shall be accompanied by a meet and confer declaration.”¿ (Code Civ. Proc. § 2031.310(b)(2).)¿ The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.¿ (Code Civ. Proc. § 2016.040.)¿

The Court finds that Plaintiff has fulfilled the meet and confer requirement.

Separate Statement

A motion to compel further responses requires a separate statement. (Cal. Rules of Court, rule 3.1345(a).) Plaintiff properly filed separate statements.

Legal Standard

“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.” (CCP § 2031.210.)

“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and 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.” (CCP § 2031.220.)

“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.” (CCP § 2031.230.)

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. (CCP 2031.240, subd. (b).)

“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; (3) An objection in the response is without merit or too general.” (CCP §2031.310, subd. (a).)

Discussion

As relevant here, on November 10, 2023, Plaintiff served Defendant with Requests for Production of Documents, Set One (“RFP”). (Jurczak Decl., ¶ 2, Ex. 1.) On December 20, 2023, Defendant served responses. (Id., ¶ 3, Ex. 2.) On December 21, 2023, Plaintiff sent a detailed meet and confer letter requesting a response by January 4, 2024, and reminding Defendant that the deadline for Plaintiff to file a motion to compel further response was February 7, 2024. (Id., ¿ 4, Ex. 3.) After several meet and confer efforts, Defendant served supplemental responses to some, but not all, of the discovery requests. (Id., ¶¶ 5-14.)

Plaintiff seeks to compel further responses to RFP Nos. 2, 4, 5, 12, 13, 18, 22, 23, 24, 25, 26, 34, 37, 40, 44 and 46.

Defendant has filed a response to the motion which provides “further clarification” to Defendant’s previous responses. However, the response is unverified, so the Court will not consider them.

RFP Nos. 2, 4, 5, 12, 13, 18, 25, 26, 34, and 37

These requests pertain to the incident itself:

· RFP No. 2: All DOCUMENTS RELATING TO correspondence concerning the INCIDENT and the attendant circumstances between the YOU and any other person and/or entity, excluding any documents with counsel.

Plaintiff argues that Defendant fails to identify with particularity any documents to which an objection is being made. (CCP 2031.240(b).) The Court determines that RFP No. 2 is within the proper scope of discovery and the response is not code-compliant.

The motion to compel further response to RFP No. 2 is GRANTED.

· RFP No. 4: All DOCUMENTS, or writings of any kind evidencing, referring to, constituting, referencing, documenting, or in any other way having any bearing on any investigation conducted by YOU OR ANYONE ACTING ON YOUR BEHALF RELATING TO the allegations contained in Plaintiff's Complaint, excluding your counsel.

Defendant’s Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible, and violates the attorney-work product privilege. Without waiving the foregoing objections and in the spirit of good faith and cooperation, this responding party responds: After a diligent search and a reasonable inquiry, responding party produces 173 photographs of the vehicles involved in this incident and the vehicle repair estimate for responding party’s vehicle and plaintiff’s vehicle.

Plaintiff argues that Defendant fails to state whether she has complied in whole or in part. (CCP § 2031.220.) The Court determines that RFP No. 4 is within the proper scope of discovery and the response is not code-compliant.

The motion to compel further response to RFP No. 4 is GRANTED.

· RFP No. 5: All DOCUMENTS RELATING TO statements that YOU OR ANYONE ACTING ON YOUR BEHALF obtained that refer or relate to the allegations contained in Plaintiff's Complaint, including, without limitation, all notes or summaries of any communication with any person who has knowledge of the facts of the INCIDENT, excluding your counsel.

Plaintiff argues that Defendant fails to identify with particularity any documents to which an objection is being made. (CCP 2031.240(b).) The Court determines that RFP No. 5 is within the proper scope of discovery and the response is not code-compliant.

The motion to compel further response to RFP No. 5 is GRANTED.

· RFP No. 12: All DOCUMENTS RELATING TO photographs or videotapes of the vehicles involved in the INCIDENT, which were taken at any time from the date of the INCIDENT to the present date.

Defendant’s Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible. Without waiving the foregoing objections and in the spirit of good faith and cooperation, this responding party responds: After a diligent search and a reasonable inquiry, responding party produces 173 photographs of the vehicles involved in this incident.

Plaintiff argues that Defendant fails to state whether she has complied in whole or in part. (CCP § 2031.220.) The Court determines that RFP No. 12 is within the proper scope of discovery and the response is not code-compliant.

The motion to compel further response to RFP No. 12 is GRANTED.

· RFP No. 13: All DOCUMENTS RELATING TO the INCIDENT. including but not limited to police reports, incident reports, accident reports, repair bills, repair estimates, repair invoices, photographs, videotapes, statements, correspondence, e-mails, reports, and diagrams.

Defendant’s Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible, and violates the attorney-work product privilege. Without waiving the foregoing objections and in the spirit of good faith and cooperation, this responding party responds: After a diligent search and a reasonable inquiry, responding party produces 173 photographs of the vehicles involved in this incident and the photographs of the vehicles involved in this incident and the vehicle repair estimate for responding party’s vehicle and plaintiff’s vehicle.

Plaintiff argues that Defendant fails to state whether she has complied in whole or in part. (CCP § 2031.220.) The Court determines that RFP No. 13 is within the proper scope of discovery and the response is not code-compliant.

The motion to compel further response to RFP No. 13 is GRANTED.

· RFP No. 18: All DOCUMENTS RELATING TO any roadway conditions, or other problem of the physical setting where the INCIDENT occurred which YOU contend caused or contributed to the INCIDENT.

Plaintiff argues that Defendant fails to identify with particularity any documents to which an objection is being made. (CCP 2031.240(b).) The Court determines that RFP No. 18 is within the proper scope of discovery and the response is not code-compliant.

The motion to compel further response to RFP No. 18 is GRANTED.

· RFP No. 25: Produce all photographs taken by YOU on the day of the INCIDENT.

Defendant’s Response: Objection. This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible. Further, this demand seeks documents irrelevant to the subject matter of this action and which are not calculated to lead to the discovery of admissible evidence and invades this party’s right to privacy. Thus, no documents are produced.

Plaintiff states: “[a]fter meeting and conferring, Defendant agreed to supplement if Plaintiff agreed to narrow this request to 30 minutes before the incident until 30 minutes after the incident and exclude text messages. This is agreeable but Defendant refuses to follow through on the agreement.

The motion to compel further response to RFP No. 25 is GRANTED per agreement of the parties. (CCP § 2031.210, subd. (a)(1).)

· RFP No. 26: Any correspondence sent to or received from anyone other than YOUR own attorney, concerning the INCIDENT and attending circumstances and claimed damages serving as a basis for this action.

Plaintiff argues that Defendant fails to identify with particularity any documents to which an objection is being made. (CCP 2031.240(b).) The Court determines that RFP No. 26 is within the proper scope of discovery and the response is not code-compliant.

The motion to compel further response to RFP No. 26 is GRANTED.

· RFP No. 34: All DOCUMENTS that support YOUR contention that YOU did not cause the INCIDENT.

Defendant’s Response: Objection: This demand is untimely and therefore burdensome and oppressive as this responding party has just answered plaintiff's complaint. Further, this demand is violative of the attorney workproduct privilege, and thus is burdensome, oppressive and harassing. Thus, no documents are produced.

Plaintiff argues that Defendant fails to identify with particularity any documents to which an objection is being made. (CCP 2031.240(b).) The Court determines that RFP No. 34 is within the proper scope of discovery and the response is not code-compliant.

The motion to compel further response to RFP No. 34 is GRANTED.

· RFP No. 37: Any and all photographs taken subsequent to the INCIDENT of YOUR vehicle, involved in the incident which is the subject of this action (Please provide color photographs and/or best reproduction or duplication. If color photographs are not available, please provide black and white copies).

Plaintiff argues that Defendant fails to state whether she has complied in whole or in part. (CCP § 2031.220.) The Court determines that RFP No. 37 is within the proper scope of discovery and the response is not code-compliant.

The motion to compel further response to RFP No. 37 is GRANTED.

RFP Nos. 22 and 46

These requests pertain to the vehicle driven by Defendant.

· RFP No. 22: All DOCUMENTS RELATING TO the title for the SUBJECT VEHICLE driven by YOU on the day of the INCIDENT.

Defendant’s Response: Objection. This demand seeks documents irrelevant to the subject matter of this action and which are not calculated to lead to the discovery of admissible evidence. However, without waiving the aforementioned objections, this responding party responds: After a diligent search and a reasonable inquiry, responding party produces a copy of the vehicle registration for responding party’s vehicle.

Plaintiff argues that Defendant fails to state whether she is complying in full or in part. (CCP § 2031.220.) The Court determines that RFP No. 22 is within the proper scope of discovery and the response is not code-compliant.

The motion to compel further response to RFP No. 22 is GRANTED.

· RFP No. 46: All DOCUMENTS and ELECTRONICALLY STORED INFORMATION RELATING TO the current location of the SUBJECT VEHICLE.

Defendant’s Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible, and violates the attorney-work product privilege. Further, This demand seeks documents irrelevant to the subject matter of this action and which are not calculated to lead to the discovery of admissible evidence and invades this party’s right to privacy.

Plaintiff argues he needs to know the current location of Defendant’s vehicle in order to conduct a vehicle inspection. The Court determines that RFP No. 46 is within the proper scope of discovery.

The motion to compel further response to RFP No. 46 is GRANTED.

RFP Nos. 23 and 24

These requests pertain to Defendant’s cell phone records.

· RFP No. 23: All DOCUMENTS RELATING TO cellular telephone billing records of the cellular telephone(s) possessed by YOU for the day of the INCIDENT.

Plaintiff states that after meeting and conferring, Defendant agreed to supplement if Plaintiff agreed to narrow this request to 30 minutes before the incident until 30 minutes after the incident and exclude text messages. Plaintiff agrees to the timeframe but disagrees to the text messages. If Defendant was texting while driving and the records will show that, then they need to be produced. The Court limits the request to phone records 30 minutes before the incident and 30 minutes after the incident, including text messages.

Subject to the limitation above, the motion to compel further response to RFP No. 23 is GRANTED.

· RFP No. 24: All DOCUMENTS RELATING TO text messages sent and received by the cellular telephone(s) possessed by YOU for the day of the INCIDENT.

As discussed above, the Court limits the request to phone records 30 minutes before the incident and 30 minutes after the incident, including text messages.

Subject to the limitation above, the motion to compel further response to RFP No. 24 is GRANTED.

RFP Nos. 40 and 44

This set of requests for documents relate to electronically stored information.

· RFP No. 40: All DOCUMENTS and ELECTRONICALLY STORED INFORMATION RELATING to purchases made by YOU on the date of the INCIDENT for the eight hours prior to the time of the INCIDENT.

Plaintiff argues that Defendant’s purchases on the day of the incident are relevant to show whether Defendant consumed anything that impaired her ability to operate a motor vehicle. The Court determines that the request is overbroad. The information Plaintiff seeks can be obtained by other means of discovery without unreasonably invading Defendant’s privacy interests.

The motion to compel further response to RFP No. 40 is DENIED.

· RFP No. 44: All DOCUMENTS and ELECTRONICALLY STORED INFORMATION RELATING TO the names and contact information of any passengers in the SUBJECT VEHICLE at the time of the INCIDENT.

Plaintiff does not state a reason for the request. In any event, the Court determines that the request is overbroad and vague.

The motion to compel further response to RFP No. 40 is DENIED.

Sanctions

“[T]he 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 compel further response to a demand, 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.” (CCP §2031.310, subd. (h).)

Plaintiff seeks sanctions against Defendant in the amount of $2,560.00 for two hours spent preparing the motion, an anticipated two hours reviewing Defendant’s Opposition and preparing a Reply, and one hour attending the hearing, at a rate of $500 per hour, plus $60 in fees. Under the circumstances here, the Court imposes sanctions in the amount of $1,560.00 upon Defendant and Defendant’s counsel, jointly and severally, payable in 60 days.