Judge: Lisa R. Jaskol, Case: 21STCV01660, Date: 2023-08-10 Tentative Ruling
Case Number: 21STCV01660 Hearing Date: February 26, 2024 Dept: 28
Having reviewed the moving and reply papers, the Court rules as follows.
BACKGROUND
On January 14, 2021, Plaintiff William Reynolds filed this action against Defendants Target Corporation (“Defendant”) and Does 1-50 alleging that Defendant’s failure to maintain security within the store where Plaintiff was shopping allowed two men to harass and assault Plaintiff.
On September 29, 2021, Defendant filed an answer.
On November 8, 2023, Plaintiff filed motions to compel Defendant’s further responses to demand for production, set three, and requests for admission, set one. The motions also requested sanctions. The Court continued the hearing on the motions from January 22, 2024 to February 26, 2024. Defendant did not file oppositions. On January 17, 2024, Plaintiff filed a reply.
Trial is currently scheduled for March 26, 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.”
Counsel for Plaintiff and Defendant participated in IDCs on December 14, 2023 and January 12, 2024.
B. Timeliness of motion
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., §§ 2031.310, subd. (c) [demand for inspection], 2033.290, subd. (c) [requests for admission].) Failure to file a motion within this time period constitutes a waiver of any right to compel further responses.
Defendant does not dispute the timeliness of Plaintiff’s motions.
C. Meet and confer
A motion to compel further responses must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., §§ 2031.310, subd. (b)(2) [demand for inspection]; 2033.290, subd. (b)(1) [requests for admission].) “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.)
Plaintiff has provided meet and confer declarations.
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 provided separate statements.
A. Demand for inspection
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.
* * *
(Code Civ. Proc., § 2031.310, subds. (a), (b), (c), (h).)
B. Requests for admissions
Code of Civil Procedure section 2033.290 provides:
“(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:
“(1) An answer to a particular request is evasive or incomplete.
“(2) An objection to a particular request is without merit or too general.
“(b) (1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.
“(2) 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 any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.
“(d) 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, 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.
“(e) If a party then fails to obey an order compelling further response to requests for admission, the court may order that the matters involved in the requests be deemed admitted. In lieu of, or in addition to, this order, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”
(Code Civ. Proc., § 2033.290.)
DISCUSSION
A. Plaintiff’s motion to compel further responses to demand for production, set three
Propounded: [date not provided]
Responses: September 22, 2023
Motion filed: November 8, 2023
Defendant’s responses to demand for production, set three, numbers 42, 43, 44, comply with Code of Civil Procedure section 2031.230.[1] Therefore, the Court denies Plaintiff's motion to compel further responses to these demands.
The Court grants Plaintiff's motion to compel further responses to demand for production, set three, numbers 45, 46, 47, 48, 49, 50, 51. Defendant must provide a privilege log for any responsive documents or other materials withheld based on a claim of privilege or work product protection. As the party asserting a privacy interest, Defendant has not carried its burden of establishing the extent and seriousness of the prospective invasion. (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 8:294, p. 8C-98.)
The Court denies Plaintiff's motion to compel further responses to demand for production number 52, which asks for documents identified in Defendant’s response to form interrogatory 17.1, set two. Plaintiff admits that “[n]o documents were identified in the response to Form Interrogatory number 17.1 response [sic].” (Separate Statement p. 19.)
The Court denies Plaintiff’s request for sanctions. Code of Civil Procedure section 2031.310, subdivision (h), authorizes a sanctions award against “any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand [for production].” (Code Civ. Proc., § 2031.310, subd. (h).) Defendant did not make or oppose a motion to compel further responses.
B. Plaintiff’s motion to compel further responses to requests for admission, set one
Propounded: [date not provided]
Responses: September 22, 2023
Motion filed: November 8, 2023
Defendant was not required to respond to requests for admission, set one, numbers 1 and 2 because the reference in the requests to other "similar" incidents is vague and ambiguous.
The Court limits questions 3-11 to assaults, attacks, harassment, stalking, and following of customers.
The Court limits the term “other incidents” in questions 13 and 14 to “other incidents in which a customer was injured by another customer while shopping within the subject premises within the past three years.”
Granted: 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14
Denied: 1, 2
The Court denies Plaintiff’s request for sanctions. Code of Civil Procedure section 2033.290, subdivision (d), authorizes a sanctions award against “any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response [to requests for admissions].” (Code Civ. Proc., § 2033.290, subd. (d).) Defendant did not make or oppose a motion to compel further responses.
CONCLUSION
The Court GRANTS IN PART Plaintiff William Reynolds’s motion to compel Defendant Target Corporation’s responses to demand for production, set three, and orders Defendant Target Corporation to provide further verified code-compliant responses to demand for production, set three, numbers 45, 46, 47, 48, 49, 50, and 51 and to produce further documents, electronically stored information, and/or other things requested by March 25, 2024. Defendant Target Corporation must provide a privilege log for any responsive documents or other materials withheld based on a claim of privilege or work product protection. In all other respects, the Court DENIES the motion.
The Court GRANTS IN PART Plaintiff William Reynolds’s motion to compel Defendant Target Corporation’s further responses to requests for admissions, set one, and orders Defendant Target Corporation to provide further verified, code-compliant responses to requests for admission, set one, numbers 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, by March 25, 2024. The Court limits questions 3-11 to assaults, attacks, harassment, stalking, and following of customers. The Court limits the term “other incidents” in questions 13 and 14 to “other incidents in which a customer was injured by another customer while shopping within the subject premises within the past three years.” In all other respects, the Court DENIES the motion.
The Court DENIES Plaintiff William Reynolds’s requests 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.
[1] 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.)