Judge: Lisa R. Jaskol, Case: 21STCV41982, Date: 2024-03-29 Tentative Ruling
Case Number: 21STCV41982 Hearing Date: March 29, 2024 Dept: 28
Having reviewed the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On November 15, 2021, Plaintiffs Habtamu Haile (“Haile”) and Redet Beyene filed this action against Defendants Nour Global, LLC dba ARCO, Frank Porras (“Porras”), and Does 1-60 for violation of Labor Code section 3706, general negligence (premises liability/negligent security), battery, and loss of consortium.
On April 7, 2022, Defendant Nour Global, LLC filed a general denial.
On September 26, 2022, Plaintiffs amended the complaint to include Defendant USG Oil, LLC (“USG”) as Doe 1.
On March 17, 2023, USG filed an answer and a cross-complaint against Cross-Defendants Roes 1-20 for implied indemnity, contribution and indemnity, declaratory relief, express indemnity, breach of contract, and duty to defend.
On May 16, 2023, Plaintiffs filed a first amended complaint against Defendants Nour Global, LLC dba ARCO, Porras, and Does 1-60 for violation of Labor Code section 3706, general negligence, battery, and loss of consortium.
On June 1, 2023, Defendant Nour Global, LLC filed an answer to Plaintiffs’ first amended complaint. On June 20 and August 7, 2023, USG filed answers to Plaintiffs’ first amended complaint.
On October 12, 2023, the clerk entered Porras’s default.
On January 26, 2024, Haile filed motions to compel USG’s further responses to (1) request for production of documents, set one, and (2) requests for admission, set one. The motions were set to be heard on February 28, 2024. The Court continued the hearing to March 29, 2024. On February 14, 2024, USG filed oppositions. On February 21, 2024, Haile filed a reply.
Trial is currently scheduled for September 3, 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 Haile and USG participated in IDCs on December 7, 2023 and January 30, 2024.
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., § 2031.310, subd, (c) [demand for inspection]; Code Civ. Proc., § 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.
On January 26, 2024, Haile filed motions to compel USG’s further responses to request for production of documents, set one, and requests for admission, set one. USG does not dispute the timeliness of the 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. (See Code Civ. Proc., § 2031.310, subd. (b)(2) [demand for inspection]; Code Civ. Proc., § 2033.290, subd. (b)(1) [requests for admission].) “A meet and confer declaration in support of a motion shall 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.)
Haile 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.
Haile has filed separate statements.
APPLICABLE LAW
A. Motion to compel further responses to requests for production
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. Motion to compel further responses to requests for admission
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. . . .”
(Code Civ. Proc., § 2033.290, subds. (a), (b), (c), (d).)
DISCUSSION
A. Haile’s motion to compel USG’s further responses to request for production, set one
Propounded: August 4, 2023
Responses: October 9, 2023
Motion
filed: January
26, 2024
USG also asserted that the requests for production violate “the privacy rights of Responding Party and third-parties.” Even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s right to privacy under State or federal law. (Cal. Practice Guide, supra, ¶ 8:293, p. 8C-97.)
“Unlike privilege, the protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery [citation]. The showing required to overcome the protection depends on the nature of the privacy right asserted; in some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown. (Cal. Practice Guide, supra, ¶ 8:294, p. 8C-98.) “The burden is on ‘the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion,’ and then the court must ‘weigh the countervailing interests the opposing party identifies.’” (Ibid.)
USG has not carried its burden. USG has not identified the individuals whose privacy rights are at issue or described the extent and the seriousness of the prospective invasion. Therefore, the Court overrules USG’s privacy objections.
The Court grants Haile’s motion and orders USG to provide further, code-compliant, verified responses to all of Haile’s requests for production of documents and to produce the documents, electronically stored information, and/or other things requested by April 29, 2024.
B. Haile’s motion to compel USG’s further
responses to requests for admission, set one
Propounded: August 4, 2023
Responses: October 9, 2023
Motion
filed: January
26, 2024
USG objected to the requests for admission based on attorney client privilege. “In response to a motion to compel answers [citation], the burden is on the party claiming a privilege to establish whatever preliminary facts are essential to the claim. [Citations.] [¶] For example, upon asserting the attorney-client privilege, the client, or the attorney in the client’s absence, must prove that the attorney-client relationship existed when the communication was made. Once this showing is made (typically through declarations), the communications between the lawyer and client are presumed to have been made in confidence. [Citations.] [¶] Upon such showing, the burden shifts to the party seeking discovery to disprove those facts or to prove some applicable statutory exception (e.g., that the privilege has been waived [citation]).” (Cal. Practice Guide, supra, ¶ 8:192, p. 8C-61.)
As explained above, USG has not carried its burden of establishing the preliminary facts essential to support its assertions of attorney client privilege.
USG also asserts that the requests for admission violate “the privacy rights of Responding Party and third-parties.” As already explained, USG has not carried its burden of establishing the extent and seriousness of the prospective invasion of privacy.
The Court grants Haile’s motion and orders USG to provide further code-compliant, verified responses to all of Haile’s requests for admission by April 29, 2024.
C. Haile’s sanctions requests
Haile requests $2,060.00 in sanctions on each motion based on four hours of attorney time at a rate of $500.00 per hour and one $60.00 filing fee. Counsel spent approximately 2½ hours preparing the moving papers and anticipated spending 1½ hours reviewing USG’s opposition, drafting a reply, and preparing for and attending the hearing. Haile requests sanctions against USG, not USG’s counsel.
The Court grants $1,120.00 in sanctions against USG on both motions based on four hours of attorney time at a reasonable rate of $250.00 per hour and two filing fees.
CONCLUSION
The Court GRANTS Plaintiff Habtamu Haile’s motion to compel Defendant USG Oil, LLC’s further responses to request for production of documents, set one, and orders Defendant USG Oil, LLC to provide further verified, code-compliant responses to request for production of documents, set one, numbers 1-25, and to produce the documents, electronically stored information, and/or other things requested by April 29, 2024.
The Court GRANTS Plaintiff Habtamu Haile’s motion to compel Defendant USG Oil, LLC’s further responses to requests for admission, set one, and orders Defendant USG Oil, LLC to provide further verified, code-compliant responses to requests for admission, set one, numbers 1-5, by April 29, 2024.
The Court GRANTS Plaintiff Habtamu Haile’s requests for sanctions and orders Defendant USG Oil, LLC to pay Plaintiff Habtamu Haile $1,120.00 by April 29, 2024.
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.