Judge: Lisa R. Jaskol, Case: 22STCV31134, Date: 2023-08-21 Tentative Ruling

Case Number: 22STCV31134    Hearing Date: September 18, 2023    Dept: 28

On September 26, 2022, Plaintiff Brittney M. Lambert Ruiz (“Plaintiff”) filed this action against Defendants Knight Auto Service & Towing LLC, Knight Auto Service & Towing, David Stephen Hopkins and Does 1-50 for motor vehicle negligence, negligent entrustment, negligent hiring, negligent undertaking, negligent retention, negligent supervision, negligent training and negligence per se. 

On August 28, 2023, Defendants David Stephen Hopkins and Knight Auto Service & Towing LLC (erroneously sued as Knight Auto Service & Towing LLC and Knight Auto Service & Towing) filed answers. 

Plaintiff moves the Court for an order compelling Defendant David Stephen Hopkins (“Defendant”) to provide further responses to Plaintiff’s demand for production of documents: 

a.     Propounded:   April 7, 2023 

b.    Responded:     May 10, 2023 

c.     Motion filed:    July 6, 2023 

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 August 30, 2023. At the IDC, Plaintiff’s counsel agreed to serve a new request for production of a video referenced in Defendant’s response to a form interrogatory.  Defendant’s counsel agreed to produce the video and to waive the statutory 30-day response period. 

B.       Timeliness of Motion 

“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, subd. (c).) 

Defendant argues that Plaintiff’s motion is untimely because Defendant served responses to Plaintiff’s request for production on May 10, 2023, and Plaintiff filed her motion on July 6, 2023.  Plaintiff reasons that 45 days after May 10, 2023, is June 25, 2023, and with two additional court days for service under Code of Civil Procedure section 1010.6, Plaintiff's motion was due on June 28, 2023.  The July 6, 2023, filing, according to Plaintiff, was 8 days late. 

The statute requires that “notice of this motion be given within 45 days of the service of the verified response . . . .” (Code Civ. Proc., § 2031.310, subd. (c), emphasis added.)  On May 19, 2023, Defendant served a verification for the discovery responses.  (Agarwal Dec., Exh. B.)  Forty-five days after May 19, 2023 is July 3, 2023.  Adding two court days for service would make the deadline for the motion July 6, the day Plaintiff filed the motion. 

Defendant cites a Los Angeles Superior Court decision that apparently interpreted Code of Civil Procedure section 2031.310, subdivision (c), to mean the 45-day period begins to run from the response, not a later verification.  Trial court decisions, however, are not binding authority.  In addition, Defendant has not provided a copy of the unpublished trial court decision for the Court’s review. 

Defendant also argues that Plaintiff did not serve the motion until July 20, 2023.  In response, Plaintiff argues that Defendant’s counsel was served on July 6, 2023.  The Court has reviewed the email correspondence between counsel but does not have enough information to decide when Plaintiff served the motion.  (This is the second time the parties have asked the Court to address a dispute about service.)  Because Defendant has filed an opposition and a sur-reply to the motion, the Court will not decide if Plaintiff properly served the motion. 

The Court finds the motion is timely. 

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 that Plaintiff did not meet and confer about the discovery request at issue here.  According to Defendant, while Plaintiff’s counsel sent a lengthy meet and confer letter, the letter did not address the specific item – a video – which Plaintiff is attempting to obtain. 

According to Defendant, Plaintiff’s counsel first asked for the video on June 22, 2023, after noticing that Defendant had mentioned the video in response to an interrogatory.  Defendant argues this request was not a proper meet and confer effort because Plaintiff’s counsel did not state which discovery request he was meeting and conferring about and did not address Defendant’s objections to Plaintiff’s request for production number 34, which covers the video. 

The Court finds that the meet and confer efforts, although not ideal, were adequate. 

D.      Separate Statement 

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 accompanying the motion.    

APPLICABLE LAW 

A.      Inspection demand 

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).) 

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).) 

Code of Civil Procedure section 2023.010 provides: 

“Misuses of the discovery process include, but are not limited to, the following: 

“(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. 

“(b) Using a discovery method in a manner that does not comply with its specified procedures. 

“(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. 

“(d) Failing to respond or to submit to an authorized method of discovery. 

“(e) Making, without substantial justification, an unmeritorious objection to discovery. 

“(f) Making an evasive response to discovery. 

“(g) Disobeying a court order to provide discovery. 

“(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. 

“(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.” 

(Code Civ. Proc., § 2023.010.) 

DISCUSSION 

          Plaintiff asks the Court to compel Defendant to produce a video referenced in Defendant’s response to an interrogatory. 

In response to Form Interrogatory No. 12.4, Defendant stated that he knew of one video “depicting [a] place, object, or individual concerning the incident or plaintiff’s injuries.”  (Capitalization omitted.)  Defendant stated that Plaintiff was the person videotaped, the video was taken on September 16, 2021 (the date of the accident), Defendant took the video, and Defendant and his lawyers currently have the video.  (Exh. C to Agarwal Dec.) 

Plaintiff asserts that Defendant is required to produce the video in response to Demand for Production No. 34, which states: “Any and all documents you identified in your response(s) to Form Interrogatories (Set One) propounded in this action, not already produced concurrently with the Responses to Demand for Production of Documents.”  (Exh. A to Agarwal Dec., capitalization omitted.) 

          In response to Demand for Production No. 34, Defendant stated: 

“Objection.  The Demand is overbroad and an impermissible catch-all Demand specifically precluded by Code of Civil Procedure, Section 2031.030(c)(1).”  (Exh. B to Agarwal Dec., emphasis omitted.) 

          The dispute should be moot.  As mentioned above, at the Informal Discovery Conference, counsel agreed that Plaintiff would serve a new request for production of the video and Defendant would produce the video.  On September 1, 2023, Plaintiff served a request for the video.  Defendant’s counsel states that she served the video on September 11, 2023. 

          However, on September 11, 2023, Plaintiff filed a reply stating her counsel did not receive the video. 

          Defendant’s counsel states that she re-served the video on September 14, 2023.  

          It does not appear that counsel for either side picked up the phone to call opposing counsel to find out if the video had been served or received. 

          The Court denies the motion as moot.  The Court also denies the parties’ requests for sanctions. 

CONCLUSION 

The Court DENIES Plaintiff Brittney M. Lambert Ruiz’s motion to compel Defendant David Stephen Hopkins to provide further responses to request for production of documents, set one.  

The Court DENIES Plaintiff Brittney M. Lambert Ruiz’s request for sanctions. 

The Court DENIES Defendant David Stephen Hopkins’ request for sanctions. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file a proof of service of this ruling with the Court within five days.