Judge: Mark C. Kim, Case: 22LBCP00319, Date: 2023-03-28 Tentative Ruling

Case Number: 22LBCP00319    Hearing Date: March 28, 2023    Dept: S27

1.     Background Facts

Claimant and Respondent are engaged in underinsured motorist arbitration proceedings, with arbitration set to go forward on 5/12/23. 

2.     Prior Motion to Compel

Claimant, Kelly Hutchinson propounded form interrogatories on Respondent, Allergan W.C. Holdings, Inc. on 6/17/22.  On 8/26/22, Claimant filed a motion to compel responses to form interrogatories.  On 10/26/22, Respondent served responses.  On 10/27/22, the Court granted Claimant’s unopposed motion, ordered responses without objections, and imposed sanctions. 

3.     Motion to Compel Further Responses

a.     Parties’ Positions

Claimant moves to compel Respondent to serve supplemental responses to form interrogatories, contending Respondent’s responses remain unverified and also substantively insufficient.  Respondent opposes the motion, contending the parties considered participating in an IDC, and upon finding out this courtroom does not conduct IDCs, should have considered participating in an informal conference with the arbitration, who offers such services.  Respondent contends it is willing to engage in the meet and confer process, but wishes to have the assistance of the arbitrator in doing so.  Claimant, in reply, contends the opposition was late and should not be considered, and also contends the Court, not the arbitrator, is charged with resolving discovery motions in the context of an uninsured motorist arbitration proceeding.

b.     Timeliness of Opposition

Pursuant to CCP §1005(b), opposition to a motion is due nine court days prior to the hearing.  Nine court days prior to 3/28/23 fell on 3/15/23.  Respondent filed its opposition on 3/15/23 and served it by electronic mail the same day.  Claimant contends service was in violation of §1010.6(a)(4)(B), which extends the time for service by email by an additional two days.  §1005(c), however, expressly provides that opposition and reply papers must be served in a means reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time they papers are filed.  Thus, the specific provision of §1005(c) governs, and service was timely, as service by email is clearly calculated to ensure delivery by the following day after the papers are filed.

c.     Arbitrator or Court to Decide Issues

Discovery procedures available to the parties in uninsured motorist cases are basically the same as those available in California civil litigation. Ins.C. § 11580.2(f).  Jurisdiction to resolve discovery disputes (including the issuance of any orders to compel discovery) is vested in the superior court (a) in the proper county for the filing of a lawsuit against the uninsured motorist for bodily injury arising from the accident or (b) in any county specified in the policy as a proper county for arbitration or action on the policy.  See Ins.C. § 11580.2(f)(1), (2); Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 921-926.  The party seeking court assistance in connection with a discovery dispute need not file and serve on the other party a formal complaint. An "application to commence discovery" coupled, e.g., with a motion to compel compliance, may be filed with the court and, where the party against whom discovery is sought is represented by counsel, served upon counsel (per CCP § 1015; see CCP § 1012--service on counsel by mail).  Id. at 927-928.  The court's power to resolve discovery disputes and issue appropriate orders includes the power to impose discovery sanctions. Id. at 928-929.  The superior court has exclusive jurisdiction to hear and rule on discovery matters arising in a UM arbitration. The arbitrator has no such power. Id. at 924-926.

Notably, Respondent does not contend otherwise in opposition to the motion.  Respondent contends only that the parties *should* talk to the arbitrator, who provides pre-arbitration dispute resolution services.  Claimant was free to engage in pre-arbitration dispute resolution services if she chose to do so prior to filing the motion, but she was certainly not obligated to do so.  When Claimant did not agree to engage in such services, Respondent had the opportunity to oppose the motion on its merits, but chose not to do so.  The Court will rule on the motion on its merits, as Claimant was under no obligation to submit the dispute to the arbitrator for consideration.

d.     Merits

The Court has reviewed Respondent’s responses to the form interrogatories at issue, and they are patently insufficient.  Respondent responded to most interrogatories by stating that information is unknown and discovery is continuing.  The parties’ arbitration, however, is set for May, less than two months away from the hearing on this motion.  Additionally, as Claimant correctly notes in moving papers and as Respondent fails to dispute, the case is over four years old.  There is no reason for Respondent to be unable to provide substantive responses to discovery at this stage in the proceedings.

Additionally, Respondent has not verified the responses, which is absolutely mandatory per Code. 

Respondent is ordered to provide further responses within ten days.  The responses must be verified.

e.     Sanctions

Claimant had to go through many rounds of meeting and conferring plus filing a motion to compel to obtain initial responses.  The responses were not verified.  Claimant went through many rounds of meeting and conferring in an attempt to obtain substantive further responses, and Respondent did not meaningfully respond.  Even when faced with a motion, Respondent attempted to prolong the matter, rather than providing any analysis concerning the sufficiency of its responses.  Unless Respondent shows good cause to avoid sanctions, sanctions are mandatory per CCP §2030.300(d), as well as §§2023.010 and 2023.030.  Respondent has clearly not done so. 

Claimant’s attorney’s declaration fully supports the request for sanctions in the amount of $1711.65, and the request is granted in full.  Sanctions are sought and imposed against Respondent and its attorney of record, jointly and severally.  They are ordered to pay sanctions in the total amount of $1711.65 to Claimant, by and through counsel of record, within twenty days.

Claimant is ordered to give notice.

Parties who intend to submit on this tentative must call the clerk at 562-256-2227 indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.