Judge: Lisa R. Jaskol, Case: 22STCV06140, Date: 2023-11-20 Tentative Ruling
Case Number: 22STCV06140 Hearing Date: November 21, 2023 Dept: 28
Having considered the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On February 18, 2022, Plaintiff Sandra Lillian Myers (“Plaintiff”) filed this action against Defendants Los Angeles County Metropolitan Transportation Authority (“Defendant”) and Does 1-50 for motor vehicle tort and general negligence.
On March 29, 2022, Defendant filed an answer. On November 6, 2023, Defendant filed another answer.
On June 9, 2023, the parties participated in an informal discovery conference with the Court.
On September 18, 2023, Plaintiff filed a motion to compel further responses to request for production, set one, and for sanctions. On November 6, 2023, Defendant filed an opposition. On November 13, 2023, Plaintiff filed a reply.
Trial is currently scheduled for January 24, 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 participated in an IDC on June 9, 2023.
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., §§ 2030.300, subd. (c), 2031.310, subd. (c).) Failure to file a motion within this time period constitutes a waiver of any right to compel further responses to requests for production of documents and interrogatories.
Plaintiff filed the motion on the date listed above. Defendant does not dispute 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.)
Defendant argues Plaintiff did not meet and confer after Defendant submitted supplemental responses. It is undisputed that the parties met and conferred between September 12, 2022 and July 25, 2023. After Defendant served supplemental responses on August 2, 2023, Plaintiff had until August 9, 2023 to file a motion to compel further responses. The Court finds that Plaintiff has satisfied her meet and confer obligation.
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 filed a separate statement. Defendant challenges the separate statement because it contains arguments that are meant to apply to multiple requests for production. The Court finds that the separate statement is adequate.
APPLICABLE LAW
A.
Inspection demand
“(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.
* * *
“(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 . . .
* * *
“(d) Failing to respond or to submit to an authorized method of discovery.”
(Code Civ. Proc., § 2023.010.)
MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION
Propounded: June 10, 2022
Responses: August 8, 2022
Further responses: August 2,
2023
Defendant has asserted attorney-client privilege and work product protection in response to requests for production 2-7, 12-14, 22, 25, and 33. Plaintiff argues that Defendant has not made a preliminary showing of privilege.
Based on Defendant’s supplemental responses to these requests and the representation by Defendant's counsel at the November 20, 2023 hearing on Plaintiff’s motions to compel further responses to special and form interrogatories, the Court understands that Defendant has provided a privilege log for requests for production 2-7, 12-14, 22, 25, 33. However, neither party has submitted the privilege log for the Court's review.
“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.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 8:192, p. 8C-61 (Cal. Practice Guide).) “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 is made. Once this showing is made (typically through declarations), the communications between 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]). [Citations.]” (Ibid.)
“A privilege log [citation] that identifies communications between the attorney and client that have not been disclosed to any third party may satisfy this preliminary burden.” (Cal. Practice Guide, supra, ¶ 8:192a, p. 8C-61; see Code Civ. Proc., § 2031.240, subd. (c)(1).)
Plaintiff does not address the effect of Defendant’s privilege log. Therefore, Plaintiff has not carried her burden of showing that the attorney-client communications were not made in confidence or that a statutory exception to the privilege applies.
B. Requests for production 15-19, 29-31, 37, 57-59, 67: Motion granted
The amended responses do not state “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" or "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.)
C. Requests for production 20, 21: Motion granted
D. Requests for production 26, 32, 34 (as modified), 35, 36, 40, 41, 42, 43, 44, 46, 47, 48, 50, 51, 52, 55, 62, 63, 64, 65, 66, 68, 69: Motion granted
The amended responses to these requests for production assert attorney-client privilege and work product protection but do not state that Defendant provided a privilege log for responsive documents. Therefore, Defendant has not carried its preliminary burden of establishing the preliminary facts essential to a privilege claim. In addition, Defendant has not made a preliminary showing that the requests violate a government employee’s privacy rights and the requests are not overbroad in light of the complaint’s allegations. The Court modifies request for production 34 to state: “All DOCUMENTS regarding the manner in which injury related incidents are reported TO YOU regarding YOUR buses” and grants the motion with respect to these requests.
E. Requests for production 38, 39, 45, 49: Motion denied
F. Sanctions
The Court denies Plaintiff’s and Defendant’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.