Judge: Lisa R. Jaskol, Case: 22STCV26442, Date: 2023-11-20 Tentative Ruling

Case Number: 22STCV26442    Hearing Date: December 22, 2023    Dept: 28

Having considered the moving, opposition, and reply papers, the Court rules as follows. 

BACKGROUND 

On August 16, 2022, Plaintiff Mark Andrew McNairy (“Plaintiff”) filed this action against Defendants Ilyse Tara Levine (“Levine”) and Does 1-50 for motor vehicle tort and general negligence. 

On September 6, 2022, Levine filed an answer. 

On July 13, 2023, Plaintiff amended the complaint to include Defendant The Wonderful Company, LLC (“The Wonderful Company”) as Doe 11. 

On November 22, 2023, Plaintiff moved to compel Levine’s further responses to Plaintiff’s second set of requests for production.  On December 6, 2023, Levine filed an opposition.  On December 13, 2023, Plaintiff filed a reply. 

On November 30, 2023, The Wonderful Company filed an answer. 

Trial is currently scheduled for February 13, 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 December 13, 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., § 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 22, 2023.  Levine 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.)  

Levine 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. 

APPLICABLE LAW   

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. 

* * * 

“(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).)  

DISCUSSION 

Plaintiff’s motion to compel Levine’s further responses to Plaintiff’s second request for production of documents 

Propounded:  October 13, 2023

          Responses:  October 31, 2023

          Amended responses: November 15, 2023

          Motion filed: November 22, 2023

  A.   Levine's calendar for December 2021 (Request No. 21) 

Plaintiff’s request for production number 21 asked for Levine’s calendar “for the month of December 2021.”  Levine responded, “Responding party complies in full and produces a calendar as Exhibit A hereto.”  However, Levine produced only one day from her calendar, December 15, 2021 (the date of the accident). 

          In her opposition to Plaintiff's motion, Levine argues she cannot produce the December 2021 calendar because she was not in the course and scope of her employment at the time of the incident (Reply p. 3) and the calendar is not in her control but in the custody and control of her employer, The Wonderful Company (Reply p. 4).  Levine does not explain why she could nonetheless produce one page from the December 2021 calendar. 

          Levine’s production of the December 15, 2021 page from her calendar refutes her argument that she lacks the ability to obtain portions of the calendar and produce them to Plaintiff.  The Court grants Plaintiff’s motion with respect to Levine’s calendar for the month of December 2021. 

B.   Levine’s employment application with The Wonderful Company (Request No. 38) 

Plaintiff’s request for production number 38 asked for “A true and correct copy of any employment application completed and signed by YOU RELATED TO YOUR employment with the WONDERFUL COMPANY.”  

Levine objected, stating: “Responding Party objects to this demand on the grounds that said demand invades Responding Party’s right of privacy and is irrelevant to the subject matter of this action in that it seeks information not likely to lead to the discovery of admissible evidence. Responding party was not in scope and course of her employment at the time of the incident. It is also vague, ambiguous, overbroad and harassing. No records will be produced regarding responding party’s employment application.” 

“Confidential personnel files at a person’s place of employment are within a zone of privacy.”  (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 8:308, p. 8C-110 (Cal. Practice Guide).)  “In each case, the court must carefully balance the right of privacy against the need for discovery.”  (Id., ¶ 8:294, p. 8C-98.) 

Citing Code of Civil Procedure section 2031.240, Plaintiff has demanded a privilege log as a condition of allowing Levine to withhold private information.  (See Motion pp. 7-8.)  The statute applies to evidentiary privileges contained in the Evidence Code.  (See Cal. Practice Guide, supra, ¶ 8:110, p. 8C-15.)  Plaintiff has not shown that a privilege log is required to support a privacy objection. 

Plaintiff argues that Levine’s employment application will help Plaintiff determine whether Levine was acting in the course and scope of her employment with The Wonderful Company at the time of the accident.  Although the employment application may have some relevance to the course and scope issue, the Court finds that Levine’s privacy interest in the application outweighs Plaintiff’s right to discovery of the document.  The Court denies Plaintiff’s motion with respect to Levine’s employment application. 

C.   Documents reflecting or referring to Levine’s job responsibilities (Request No. 40) 

Plaintiff’s request for production number 40 asked for “Any and all DOCUMENTS reflecting or referring to YOUR job responsibilities while employed by the WONDERFUL COMPANY.” 

Levine objected, stating: “Responding Party objects to this demand on the grounds that said demand invades Responding Party’s right of privacy and is irrelevant to the subject matter of this action in that it seeks information not likely to lead to the discovery of admissible evidence. Further, it is overbroad, violates defendants right to privacy, vague and ambiguous.  Responding party was not in scope and course of her employment at the time of the incident. It is also vague, ambiguous, overbroad and harassing.  No records will be produced regarding responding party’s job responsibilities.” 

Balancing Levine’s privacy right against Plaintiff’s need for discovery (see Section B, above), the Court concludes that Plaintiff’s right to discover information about Levine’s job responsibilities outweighs Levine’s privacy interest for purposes of determining whether Levine was acting in the course and scope of her employment at the time of the accident.  The Court overrules Levine’s other objections.  Levine’s assertion that she was not in the course and scope of her employment does not foreclose Plaintiff’s ability to pursue discovery on this issue.  The Court grants Plaintiff’s motion with respect to documents reflecting or referring to Levine’s job responsibilities while employed by The Wonderful Company. 

D.   Levine’s corporate-issued mobile phone records (Request No. 48) 

Plaintiff’s request for production number 48 asked for “Complete copies of YOUR corporate-issued mobile phone records for the month of December 2022.” 

Levine objected, stating: “Lacks foundation. Assumes facts not in evidence. Responding Party further objects that this Request for Production seeks production of documents that are irrelevant to the subject matter and not likely to lead to the discovery of admissible evidence. Propounding Party’s request for cellular telephone records is an invasion of Responding Party’s right to privacy and invades the right of privacy of third parties whose telephone numbers are listed in Responding Party’s cellular telephone records. Further defendant is an attorney and asserts attorney client privilege and attorney work product privilege. Discovery and investigation are continuing and responding party reserves it right supplement her response.” 

The accident allegedly occurred in December 2021.  The request for production seeks records from one year later, in December 2022.  The Court could find no explanation for use of the December 2022 date in the request for production.  The Court denies Plaintiff’s motion with respect to corporate-issued mobile phone records for the month of December 2022. 

E.   Sanctions 

The Court DENIES Plaintiff’s request for sanctions. 

CONCLUSION 

The Court GRANTS IN PART and DENIES IN PART Plaintiff Mark Andrew McNairy's motion to compel Defendant Ilyse Tara Levine to provide further responses to Plaintiff’s second set of requests for production of documents as follows: 

The Court GRANTS Plaintiff Mark Andrew McNairy’s motion with respect to Defendant Ilyse Tara Levine’s calendar for the month of December 2021 and orders Defendant Ilyse Tara Levine to produce her calendar for the month of December 2021 by January 23, 2024. 

The Court DENIES Plaintiff Mark Andrew McNairy’s motion with respect to Defendant Ilyse Tara Levine’s employment application. 

The Court GRANTS Plaintiff Mark Andrew McNairy’s motion with respect to Defendant Ilyse Tara Levine’s job responsibilities and orders Defendant Ilyse Tara Levine to produce any and all documents reflecting or referring to her job responsibilities while employed by The Wonderful Company by January 23, 2024. 

The Court DENIES Plaintiff Mark Andrew McNairy’s motion with respect to Defendant Ilyse Tara Levine’s corporate-issued mobile phone records for the month of December 2022. 

The Court DENIES Plaintiff Mark Andrew McNairy’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.