Judge: Lisa R. Jaskol, Case: 22STCV29029, Date: 2024-08-09 Tentative Ruling
Case Number: 22STCV29029 Hearing Date: August 9, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On September 7, 2022, Plaintiffs Jose Preciado and Aline Preciado filed this action against Defendants San Gabriel Transit, Inc. (“Transit”), Access Services (“Access”), Los Angeles County Metropolitan Transportation Authority, Steve Ly (“Ly”), and Does 1-50 for negligence, negligent infliction of emotional distress, negligent hiring, training, retention, and supervision, vicarious liability, dangerous condition of public property under Government Code section 835, and loss of consortium.
On November 28, 2022, Plaintiffs filed a first amended complaint against the same defendants. In the first cause of action, Plaintiffs asserted claims for negligence, negligent infliction of emotional distress, and vicarious liability. In the second cause of action, Plaintiffs asserted a claim for loss of consortium.
On December 29, 2022, Transit and Access filed an answer.
On January 4, 2023, Defendant Los Angeles County Metropolitan Transportation Authority dba Metro (erroneously sued and served as Los Angeles County Metropolitan Transportation Authority, a public entity) (“Metro”) filed an answer. On November 21, 2023, the Court dismissed Metro with prejudice at Plaintiffs’ request.
On September 7, 2023, Ly filed an answer.
On November 1, 2023, the Court found that this case (22STCV29029) and case number 22STCV33187 are related within the meaning of California Rules of Court, rule 3.300(a). Case number 22STCV29029 became the lead case. The cases were assigned to Department 31 at the Spring Street Courthouse for all purposes. The cases were later assigned to Department 28 at the Spring Street Courthouse.
On June 7, 2024, Plaintiffs filed a motion to compel Access’s further responses to requests for production of documents and things, set two, and for sanctions. The motion was set for hearing on July 8, 2024. On June 24, 2024, Access filed an opposition and request for sanctions. On June 28, 2024, Plaintiffs filed a reply. The Court continued the hearing to August 9, 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 IDCs on February 21, February 27, March 7, March 8, June 4, and July 5, 2024.
B. Timeliness of motions
A notice of motion to compel further responses must be given within 45 days of the service of the verified responses, or any supplemental verified responses, or on or before any later date to which the parties have agreed in writing. (See Code Civ. Proc., § 2031.310, subd. (c) [demand for inspection].) Failure to file a motion by this deadline constitutes a waiver of any right to compel further responses.
Access does not dispute the timeliness of Plaintiffs’ motion.
C. Meet and confer
A motion to compel further responses to a demand for inspection or interrogatories 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].) “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.)
Plaintiffs have provided a meet and confer declaration.
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.
Plaintiffs have filed a separate statement.
APPLICABLE LAW
A. Untimely responses
Code
of Civil Procedure section 2031.300 provides in part:
“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:
“(a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:
“(1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280.
“(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.
“(b) The party making the demand may move for an order compelling response to the demand. . . .”
(Code Civ. Proc., § 2031.300, subds. (a), (b).)
B. Motion to compel further responses
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., § 1031.310, subds. (a), (b), (c), (h).)
DISCUSSION
A. Plaintiffs’ motion to compel Access’s further responses to requests for production of documents and things, set two
Served:
July 24, 2023
Responses: September 30, 2023
Further responses: April
25, 2024
Motion filed: June 7, 2024
Plaintiffs argue that Access’s responses to Plaintiffs’ requests for production of documents and things, set two, were untimely, waiving Access’s right to assert objections to the requests. According to Plaintiffs, Access’s responses were due on September 29, 2023 as the result of Plaintiffs’ agreement to extend the time for Access to respond. (See, e.g., Plaintiffs’ exhibit D [Access’s counsel acknowledges that the deadline for Access’s responses is September 29, 2023].) Because Access served its responses on September 30, 2023, Plaintiffs argue, Access waived any objections it might have asserted.
Access does not dispute Plaintiffs’ contention that Access
served its responses one day late.
Instead, Access argues that the discovery requests are overbroad,
disproportionate to the value of the case, violate the attorney-client privilege
and work product protections, and are objectionable in other ways.
Access has waived these arguments. “If a party
to whom a demand for inspection, copying, testing, or sampling is directed
fails to serve a timely response to it, . . . [¶] [the] party . . . waives any
objection to the demand, including one based on privilege or on the protection
for work product under Chapter 4 (commencing with Section 2018.010).” (Code Civ. Proc., § 2031.300, subd. (a).) Therefore, the Court will not consider Access’s
objections.
In Access’s further responses to requests for production numbers 74, 75, 76, 77, 78, 79, 80, and 81, Access promised to provide responsive documents. (See Plaintiffs’ Separate Statement, further responses to requests for production numbers 74, 75, 76, 77, 78, 79, 80, and 81.) Plaintiffs, however, argue that Access broke these promises and did not provide the requested documents. (See, e.g., Plaintiffs’ Separate Statement pp. 35-36.) Access does not respond to this argument. The Court concludes that Access has not provided the documents responsive to these requests.
Access argues that the Court should not order it to produce further responses to request for production number 87 because “Defendants will have produced responsive documents by the time of the motion hearing.” (Defendants’ Separate Statement p. 39.) Access also argues that it has already produced documents responsive to request for production number 94. (Defendants’ Separate Statement p. 39.) Access has not provided a declaration or other evidence to support these assertions.
Access’s further response to request for production number 72 does not comply with the requirements of Code of Civil Procedure section 2031.230.
The Court grants Plaintiffs’ motion and orders Access to provide further verified, code-compliant responses to requests for production of documents and things, set two, numbers 71, 72, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, and 94 and to produce the documents, electronically stored information, and/or other things requested within 30 days of the hearing on this motion.
B. Plaintiffs’ sanctions request
Plaintiffs request $3,711.65 in sanctions based on eight hours of attorney time at a rate of $450.00 per hour, a $61.65 filing fee, and $50.00 to send the Court a courtesy copy of the motion. Counsel spent five hours to draft the moving papers and anticipated spending two hours to draft the reply and one hour to attend the hearing.
The Court awards $811.65 in sanctions based on three hours of attorney time at a reasonable rate of $250.00 per hour and one filing fee.
CONCLUSION
The Court GRANTS the motion of Plaintiffs Jose Preciado and Aline Preciado to compel Defendant Access Services’s further responses to requests for production of documents and things, set two. The Court orders Defendant Access Services to provide further verified, code-compliant responses to requests for production of documents and things, set two, numbers 71, 72, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, and 94 and to produce the documents, electronically stored information, and/or other things requested within 30 days of the hearing on this motion.
The Court GRANTS the request for sanctions of Plaintiffs Jose Preciado and Aline Preciado and orders Defendant Access Services and its counsel to pay Plaintiffs Jose Preciado and Aline Preciado $811.65 within 30 days of the date of the hearing on this motion.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.