Judge: Lisa R. Jaskol, Case: 19STCV34535, Date: 2023-10-16 Tentative Ruling
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Case Number: 19STCV34535 Hearing Date: January 3, 2024 Dept: 28
Having considered the moving and opposing papers, the Court rules as follows.
BACKGROUND
On September 27, 2019, Plaintiffs Fanfan Jiang, individually and as successor in interest and heir to the estate of Xuezhong Bao, and Kaijia Bao filed this action against Defendants Los Angeles County Metropolitan Transportation (“Metro”), Peter Munoz (“Munoz”), and Does 1-20 for negligence, dangerous condition of public property (Gov. Code, § 835), battery, wrongful death, and survival action (Code Civ. Proc., § 377.20).
On July 31, 2020, Plaintiff Fanfan Jiang, individually and as successor in interest and heir to the estate of Xuezhong Bao (“Plaintiff”), filed a first amended complaint against the same defendants for negligence of public employee(s) (Gov. Code, § 815,2), dangerous condition of public property (Gov. Code, § 835), battery, wrongful death, and survival action (Code Civ. Proc., § 377.20).
On December 29, 2020, Plaintiff filed a second amended complaint.
On January 28, 2021, based on the parties’ stipulation, the Court continued the trial date from March 26, 2021 to February 25, 2022, and ruled that discovery and motion cut-off dates would be based on the new trial date.
On June 30, 2021, Plaintiff filed a third amended complaint. On October 8, 2021, Plaintiff filed a fourth amended complaint.
On November 8, 2021, Metro filed an admission that the operator of the Metro Rail train involved in the incident described in the operative complaint was its employee who was acting within the course and scope of employment with Metro in the operation of the train at the time of the incident. Metro further admitted that if its employee was found at fault and liable for a share, or all, of Plaintiff’s damages due to the operation of the train, then Metro, by virtue of vicarious liability for its employee’s acts (respondeat superior), also will be liable to Plaintiff for the same percentage of Plaintiff’s damages as the employee train operator is found to be.
On December 21, 2021, the Court granted Metro’s motion to continue the trial from February 25, 2022 to January 18, 2023 and found good cause to continue the related discovery dates.
On January 10, 2022, Metro filed an answer.
On January 4, 2023, the Court granted Metro’s ex parte application to continue the trial from January 18, 2023 to October 18, 2023. The Court ruled that all discovery and pre-trial motion cut-off dates would be associated with the new trial date.
On August 23, 2023, the Court granted Plaintiff’s ex parte application to continue the trial from October 18, 2023 to April 18, 2024, but denied without prejudice Plaintiff’s request that discovery and pre-trial motion cut-off dates trail the new trial date.
On October 16, 2023, the Court granted Plaintiff’s motion to re-open discovery and ordered that all dates would trail the April 18, 2024 trial date.
On November 30, 2023, Plaintiff filed a motion to compel further production of documents and for sanctions. The motion was set for hearing on January 3, 2024. On December 19, 2023, Metro filed an opposition and request for sanctions.
Trial is currently scheduled for April 18, 2024.
PROCEDURAL REQUIREMENTS
A. Informal Discovery Conference
The Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts Effective October 10, 2022 (Filed September 20, 2022), ¶ 9E, provides: “PI Hub Courts will not hear Motions to Compel Further Discovery Responses to Discovery until the parties have engaged in an Informal Discovery Conference (IDC). PI Hub Courts may deny or continue a Motion to Compel Further Responses to Discovery if parties fail to schedule and complete an IDC before the scheduled hearing on a Motion to Compel Further Responses to Discovery.”
The parties attended an informal discovery conference on October 10, 2023.
B. Timeliness of motions
A notice of motion to compel further responses must be given within 45 days of the service of the responses, or any supplemental responses, or on or before any specific later date to which the parties have agreed in writing. (Code Civ. Proc., § 2033.290, subd, (c).) Failure to file a motion within this time period constitutes a waiver of any right to compel further responses to requests for admission.
Plaintiff filed the motion on November 30, 2023. Metro does contest the timeliness of the motion.
C. Meet and confer
“A motion to compel must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040.” (Code Civ. Proc., §§ 2030.300, subd. (b)(1); 2031.310, subd. (b)(2).) “A meet and confer declaration must state facts showing a reasonable and good-faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)
Metro does not contest the adequacy of Plaintiff’s meet and confer efforts.
D. Separate statement
With exceptions that do not apply here, California Rules of Court, rule 3.1345, requires that any motion involving the content of discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for why an order compelling further responses is warranted.
Plaintiff has filed a separate statement.
LEGAL STANDARD
A. Inspection demand
Code of Civil Procedure section 2031.310 provides in part:
“(a) 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.
“(b) A motion under subdivision (a) shall comply with each of the following:
“(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.
“(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.
“(3) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.
“(c) 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.
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“(h) Except as provided in subdivision (j), 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 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.”
(Code Civ. Proc., § 2031.310, subds. (a), (b), (c), (h).)
Code of Civil Procedure section 2031.230 provides:
“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.)
B. Discovery sanctions
“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that 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., § 2023.030, subd. (a).)
“Misuses of the discovery process include . . .
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“(d) Failing to respond or to submit to an authorized method of discovery.”
(Code Civ. Proc., § 2023.010.)
DISCUSSION
Plaintiff's motion to compel Metro’s further responses to request for production of documents, set one
Propounded: February 7, 2022
Initial
responses: Not stated
Further
responses: May 12, 2023, July 27, 2023
Motion filed: November 30, 2023
Granted:
10, 11
Metro asks the Court to grant it 30 days to provide responses, as if Metro was just now beginning the task of gathering the responsive documents and information. Metro has had months to provide these responses and, by its own account, it has been working on this task. The Court orders Metro to provide further verified, code-compliant responses to request for production numbers 10 and 11 and to produce the documents, electronically stored information, and/or other things requested within 21 days of the hearing on the motion.
Plaintiff requests $2,310.00 in monetary based on nine hours of attorney time at a rate of $250 per hour and one $60 filing fee. Counsel spent two hours to meet and confer and four hours to draft the motion and anticipated spending two hours to review Metro’s opposition and draft a reply and one hour to attend the hearing.
The Court awards Plaintiff $1,060.00 in sanctions based on four hours of attorney time and one filing fee. The Court denies Plaintiff’s request for terminating sanctions.
CONCLUSION
The Court GRANTS the motion of Plaintiff Fanfan Jiang to compel further responses to Plaintiff’s request for production of documents, set one, and orders Defendant Los Angeles County Metropolitan Transportation Authority to provide further verified, code-compliant responses to request for production numbers 10 and 11 and to produce the documents, electronically stored information, and/or other things requested without objections within 21 days of the hearing.
The Court GRANTS the request for monetary sanctions of Plaintiff Fanfan Jiang and orders Defendant Los Angeles County Metropolitan Transportation Authority and its counsel to pay Plaintiff $1,060.00 within 30 days of the hearing on this motion.
The
Court DENIES the request for terminating sanctions of Plaintiff Fanfan Jiang.
The Court DENIES Los Angeles County Metropolitan Transportation Authority’s request for sanctions.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.