Judge: Lisa R. Jaskol, Case: 23STCV01323, Date: 2024-02-20 Tentative Ruling
Case Number: 23STCV01323 Hearing Date: March 6, 2024 Dept: 28
Having reviewed the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On January 20, 2023, Plaintiffs Yoana Noemi Chicas (“Chicas”) and Andrew Hernandez (“Hernandez”), by and through his guardian ad litem Chicas, filed this action against Defendants Latura Jenkins, City of Los Angeles Department of Transportation, MV Transportation, Inc., and Does 1-50 for motor vehicle negligence, general negligence, violation of Civil Code section 2104, violation of Civil Code section 2100, violation of Civil Code section 2101, negligent entrustment, respondeat superior, and negligent hiring/retention.
On March 1, 2023, the Court appointed Chicas to serve as Hernandez’s guardian ad litem.
On April 4, 2023, Defendants Latura Jenkins, City of Los Angeles Department of Transportation, and MV Transportation, Inc. filed an answer.
On January 5 and 12, 2024, Chicas and Hernandez (“Plaintiffs”) filed motions to compel Defendants Latura Jenkins (“Jenkins”) and City of Los Angeles Department of Transportation (“City”) to provide further responses to Plaintiffs’ request for production of documents, set one, special interrogatories, set one, and form interrogatories, set one. Plaintiffs also requested sanctions. The motions were set to be heard on February 8 and 9, 2024. The Court continued the hearings to March 6, 2024. On January 26, 2024 and February 22, 2024, Jenkins filed oppositions. On February 8, 2024, the City filed an opposition. On February 1 and 13, 2024, Plaintiffs filed replies.
Trial is currently scheduled for July 19, 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 Plaintiffs, Jenkins, and the City participated in an IDC on February 6, 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], 2030.300, subd. (c) [interrogatories].) Failure to file a motion within this time period constitutes a waiver of any right to compel further responses.
Jenkins and the City do not dispute the timeliness of Plaintiffs’ motions.
C. Meet and confer
A motion to compel further responses must be accompanied by a meet and confer declaration. (Code Civ. Proc., §§ 2031.310, subd. (b)(2) [demand for inspection]; 2030.300, subd. (b)(1) [interrogatories].) “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 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.
Plaintiffs have provided separate statements.
A. Demand for inspection
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. Interrogatories
Code of Civil Procedure section 2030.300 provides:
“(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:
“(1) An answer to a particular interrogatory is evasive or incomplete.
“(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.
“(3) An objection to an interrogatory 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 on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.
“(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 a further response to interrogatories, 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.
“(e) If a party then fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”
(Code Civ. Proc., § 2030.300.)
DISCUSSION
A. 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.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 8:192, p. 8C-61.) “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]). [Citations.]” (Ibid.)
Jenkins and the City have not carried their initial burden of establishing the preliminary facts showing that the attorney-client privilege allows them to withhold documents and information responsive to Plaintiffs’ discovery requests (except as specified below).
B. Work product doctrine
Code of Civil Procedure section 2018.030 provides:
“(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.
“(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.”
(Code Civ. Proc., § 2018.030.)
“There is no dispute that a statement independently prepared by a witness does not become protected work product simply upon its transmission to an attorney.” (Coito v. Superior Court (2012) 54 Cal.4th 480, 494 (Coito).) “An attorney resisting discovery of a witness statement based on absolute [work product protection] must make a preliminary or foundational showing that disclosure would reveal his or her ‘impressions, conclusions, opinions, or legal research or theories.’ ” [Citation.] Upon an adequate showing, the trial court should determine, by making an in camera inspection if necessary, whether absolute work product protection applies to some or all of the material.” (Coito, supra, 54 Cal.4th at pp. 495-496, quoting Code Civ. Proc., § 2018.030, subd. (a).)
Jenkins and the City have not made a preliminary showing that either the qualified or absolute work product doctrine allows them to withhold documents and information responsive to Plaintiffs’ discovery requests.
C. Motions
1. Surveillance/subrosa issue
At the January 6, 2024 IDC, counsel informed the Court that the parties had resolved the discovery issues involving surveillance and subrosa evidence and the Court did not need to address these issues when ruling on the motions to compel further discovery responses. Therefore, the Court does not address request for production numbers 12 (directed at the City) and 14 (directed at Jenkins).
2. Plaintiffs’ motions to compel Jenkins’s further
responses
a. Plaintiffs’ motion to compel Jenkins’s further responses
to request for production, set one
Responses: [date not provided]
Motion filed: January 5 and 14, 2024
Granted: 15-16, 19, 21, 23, 26 (the order granting further responses to number 26 is limited to documents reflecting any violations of MV Transportation’s employment policies, any write ups by MV Transportation, or any complaints from passengers), 28, 39-41
The Court excludes from its order granting further responses to these requests (1) any communications between a party and the party’s lawyer and (2) any documents that contain absolute work product.
If Jenkins withholds any documents based on an assertion of privilege or work product protection, Jenkins must provide a privilege log to Plaintiffs.
The parties may submit a proposed protective order for the Court’s review to address concerns about disclosure of proprietary information.
Denied: 25, 27,
29, 45-49
b. Plaintiffs’ motion to compel Jenkins’s further responses to special interrogatories, set one
Propounded: March 27, 2023
Responses: [date
not provided]
Motion filed: January 5 and
14, 2024
The Court excludes from its order granting further responses to these requests any communications between a party and the party’s lawyer.
Denied: 39
c. Plaintiffs’ motion to compel Jenkins’s further responses to form interrogatories, set one
Propounded: March
27, 2023
Responses: [date
not provided]
Motion filed: January 5 and 14, 2024
3. Plaintiffs’ motions to compel the City’s further
responses
a. Plaintiffs’ motion to compel the City’s further responses to request for production, set one
Propounded: March
27, 2023
Responses: [date not provided]
Motion filed: January 5 and 14, 2024
Granted: 13-14, 18-19, 22 (the order granting further responses to number 22 is limited to documents reflecting any violations of MV Transportation’s employment policies, any write ups by MV Transportation, or any complaints from passengers), 24, 35-37
Denied: 21, 23 , 41-45
The Court excludes from its order granting further responses to these requests (1) any communications between a party and the party’s lawyer and (2) any documents that contain absolute work product.
If the City withholds any documents based on an assertion of privilege or work product protection, the City must provide a privilege log to Plaintiffs.
The parties may submit a proposed protective order for the Court’s review to address concerns about disclosure of proprietary information.
b. Plaintiffs’ motion to compel the City’s further responses to special interrogatories, set one
Propounded: March 27, 2023
Responses: [date not provided]
Motion filed: January
5 and 14, 2024
Granted: 11
Denied: 37-38
The Court excludes from its order granting further
responses to these requests any communications between a party and the party’s
lawyer.
c. Plaintiffs’ motion to compel the City’s further responses to form interrogatories, set one
Propounded: March
27, 2023
Responses: [date not provided]
Motion filed: January 5 and 14, 2024
Granted:
12.6 (excluding communications between a party and the party’s lawyer)
4. Improper bundling of motions
Plaintiffs should have filed each of these motions as three separate motions, one for each type of discovery the motion addressed. Improper bundling of motions affects the Court’s ability to handle its caseload and has other effects addressed in Jenkins’s opposition filed on February 22, 2024. The Court orders Plaintiffs to pay the Court four additional filing fees, totaling $240.00, to account for their failure to file separate motions.
5. Sanctions
Plaintiffs request $1,810.00 in sanctions for each motion based on seven hours of attorney time at a rate of $250.00 per hour plus one $60.00 filing fee. Counsel spent three hours to prepare each motion and anticipated spending one hour to review the opposition, two hours to prepare a reply, and one hour to appear at the hearing.
Plaintiffs did not prevail on all their requests. The Court awards $740.00 in sanctions for both motions based on two hours of attorney time and six filing fees.
CONCLUSION
The Court GRANTS IN PART the motion of Plaintiffs Yoana Noemi Chicas and Andrew Hernandez to compel Defendant Latura Jenkins’s further responses to request for production of documents, set one, and orders Defendant Latura Jenkins to provide further verified code-compliant responses to request for production of documents, set one, numbers 15-16, 19, 21, 23, 26, 28, and 39-41 and to produce the documents, electronically stored information, and/or other things requested by April 5, 2024, subject to the limitations set forth above. In all other respects, the Court DENIES the motion.
The Court GRANTS the motion of Plaintiffs Yoana Noemi Chicas and Andrew Hernandez to compel Defendant Latura Jenkins’s further responses to form interrogatories, set one, and orders Defendant Latura Jenkins to provide further verified code-compliant responses to form interrogatory, set one, number 12.6, by April 5, 2024, subject to the limitations set forth above.
The Court GRANTS IN PART the motion of Plaintiffs Yoana Noemi Chicas and Andrew Hernandez to compel Defendant City of Los Angeles Department of Transportation’s further responses to request for production of documents, set one, and orders Defendant City of Los Angeles Department of Transportation to provide further verified code-compliant responses to request for production of documents, set one, numbers 13-14, 18-19, 22, 24, and 35-37 and to produce the documents, electronically stored information, and/or other things requested by April 5, 2024, subject to the limitations set forth above. In all other respects, the Court DENIES the motion.
The Court GRANTS the motion of Plaintiffs Yoana Noemi Chicas and Andrew Hernandez to compel Defendant City of Los Angeles Department of Transportation’s further responses to form interrogatories, set one, and orders Defendant City of Los Angeles Department of Transportation to provide further verified code-compliant responses to form interrogatories, set one, number 12.6 by April 5, 2024, subject to the limitations set forth above.
The Court GRANTS IN PART the request for sanctions of Plaintiffs Yoana Noemi Chicas and Andrew Hernandez and orders Defendants Latura Jenkins and City of Los Angeles Department of Transportation and their counsel to pay Plaintiffs Yoana Noemi Chicas and Andrew Hernandez $740.00 by April 5, 2024.
The Court ORDERS Plaintiffs Yoana Noemi Chicas and Andrew Hernandez to pay the Court $240.00 in filing fees by April 5, 2024.
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.