Judge: Mark H. Epstein, Case: 23SMCV00842, Date: 2023-12-28 Tentative Ruling
If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3629 advising her that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing.
Case Number: 23SMCV00842 Hearing Date: December 28, 2023 Dept: I
This is a motion to compel.
At issue are four requests for production. RFP 18 goes to insurance documents. RFP 21 is for emails relating to plaintiff
and RFP 22 is for texts relating to plaintiffs.
RFP 28 is for complaints regarding adequacy of services and staffing for
2021. Defendant responded with
boilerplate objections. Plaintiff sent a
letter and followed up. It does not
appear, however, that defendant ever actually engaged. Plaintiff made a last minute call to
defendant the day before the motion was due, but defense counsel missed that
call.
The requests (other than RFP 28) are appropriate on their face and the court can discern no basis for any objection thereto. Defendant’s boilerplate objections are useless and the court finds none of them meritorious. The closest defendant comes as to 21 and 22 is the notion that the emails and texts would not have been records of the entity, but rather records of employees. However, defendant apparently made no effort to contact employees and obtain any such records (or to ensure that all such records are maintained and not deleted). As to former employees, defendant still could have contacted those people and at least attempted to get the documents if they existed. Perhaps defendant could not have compelled production of those documents, as it could for current employees, but defendant could have tried and could have set forth the results of its efforts pursuant to 2031.230. To the extent that defendant claims undue burden, the court does not see it, and it certainly is not supported. RFP 28 is the hardest issue. Defendant again responded with boilerplate objections. The court essentially disregards them. It is not the court’s job to try and figure out the good faith objections from the bad faith ones. It is defendant’s job to discern between the two and then not make the bad faith ones. It is a poor practice to use the cut and paste feature and crib from the form objections.
But that said, complaints by other residents plainly does implicate the privacy rights of those residents. And while defendant may not have preserved that objection very well, the other residents have done nothing to waive their rights. The court therefore will allow defendant to redact identifying information pertaining to the residents. Defendant should replace that information with some generic identifier, like “Resident Number 1” or something similar so that the particular complaint can be referred to in the future. The court agrees with plaintiff here that this is needed so that plaintiff can make, or attempt to make, the showing needed for an enhanced recovery.
Defendant also complains that some of these documents are privileged. Defendant may withhold documents based on privilege, but it must log them. And the log must contain enough information to make the prima facie case and allow plaintiff to determine whether to challenge the designation of any particular document on the log. Defendant ought not assume that it will be able to supplement the log to make the prima facie showing in the teeth of a motion to compel. The strongest argument that the defense makes is that the request is overbroad because the types of complaints could well be totally unrelated to the issues here. Had defendant limited its actual objection to that one in a clear and cogent way, rather than resorting to the boilerplate, it might have had merit. Similarly, had defendant made any effort to engage in the meet and confer process, the court believes that the parties would have reached an accord. But defendant, through its conduct, took an all or nothing approach. Having so elected, sadly for the defense, the answer is all, not nothing.
Defendant also complains that the meet and confer was not adequate. To hear defendant tell the tale, it would almost seem as if defendant submitted its responses and heard back nothing until the day before the motion was filed. But that does not appear to be what happened. Plaintiff made a number of efforts to engage in a meaningful dialogue with the defense, even given the boilerplate objections. That is enough.
Plaintiff has not sought sanctions and so none are awarded. Defendant should consider that courtesy in the future.
Defendant has 30 days to serve verified responses without objection to the RFP’s in question. As to 21 and 22, defendant will state under oath and in detail the precise efforts it took to find and collect responsive documents. The documents will be provided along the same time line as to RFP 18 if that has not already been done. Defendant has 60 days to provide the remainder of the documents in question.
For the parties’ future use, the court appends its guidelines on discovery responses and meet and confer.
DISCOVERY RELATED GUIDELINES FOR DEPARTMENT I
The guidelines below are not “rules” and they are not
universally applicable in all cases.
Rather, they are guidelines as to the court’s general views. Each case, of course, will be decided on its
own facts and circumstances, and some of the guidelines below may not apply to
particular circumstances. That said, the
court does take these views seriously.
Discovery Responses
The Court provides the following guidance concerning its
general views on some common issues regarding responses to written
objections. The Court has noticed that
many attorneys view objections and the manner of making them in a way different
than does the Court. To avoid these
common pitfalls, the Court offers the following in addition to the provisions
of the Litigation Guidelines appended to the Los Angeles County Superior Court
Local Rules.
First, “General Objections” are not permitted. The Code of Civil Procedure does not provide
for them, and therefore they are disregarded by the Court. Any response that “incorporates” the “General
Objections” is improper by definition.
Second, the Court often views boilerplate objections
as being in bad faith. A bad faith
response is no response at all in the Court’s view. Therefore, making boilerplate objections does
not preserve those objections nor does it constitute a good faith response to
written discovery. A bad faith response
is viewed by the Court for what it is: bad faith. The objections will be stricken and deemed
waived. In the context of a Request for
Admission, such objections may lead to a finding that the request is deemed
admitted, although that will depend on the facts of the particular case and the
specific discovery at hand.
Objections should be tailored to each specific request. If a request truly is overbroad, then an
objection to that effect is proper. But
such an objection is best accompanied by some reasonable limitation by the
responding party that will narrow the request appropriately and (as narrowed)
provide a substantive response rather than a mere statement that the request is
overbroad. The same is true as to an
objection that a request is unduly burdensome.
The Court also notes that the party asserting that a request is unduly
burdensome has the obligation at some point to provide an evidentiary basis for
the objection, including evidence as to what the burden of compliance would
be. (West Pico Furniture Co. v.
Superior Court (1961) 56 Cal.2d 407.)
Often such an objection will include a statement by the responding party
as to a narrower request that would not be unduly burdensome and provide
substantive responses as so limited.
Objections that a request is “vague and ambiguous” must set forth the
vague and ambiguous term as well as the responding party’s reasonable
interpretation of that term as well as a statement that, so interpreted, the
response will provide the discovery requested.
If there is no reasonable interpretation possible (which is a rare
situation), then the responding party must so state. Objections as to privilege must set forth the
basis explaining why the information sought is in fact privileged. Where a privilege is asserted in the context
of a document request, a privilege log must accompany the answer or be provided
within a short and reasonable time after the answer. Where the objection is made in the context of
an interrogatory, it must be clear from the objection the scope of the
information being withheld. If there is
no log, there should be no privilege objection to a document request (meaning
that a prophylactic privilege objection is the equivalent of no objection; it
preserves nothing). There are some rare
exceptions, such as where the entire point of the discovery is to get allegedly
privileged information or where compliance would require a log that is in
essence an index of counsel’s file. In
that situation, the log is unnecessary, but the assertion should be made that
the request is in that rare context.
Third, if an objection is made to the discovery but a
response is being given, it must be clear whether information or documents are
in fact being withheld on the basis of the objections. If the objections are clear and done in the
manner set forth above, with statements in the objection as to a narrowing that
will make the request proper, this is usually a simple task. The objections themselves state the limit and
the response will be full and complete as limited. But where the objections are not so clear,
the response must clearly state whether any information or document is being
withheld on the basis of the objection and, if so, the extent of the
withholding. Accordingly, in those
situations, phrases like “Notwithstanding and subject to the foregoing
objections, responding party states as follows” are improper. Those sorts of phrases make the verification
useless, as the verifier can always fall back on the ”objections” as the reason
why a document was not produced or information was not disclosed. On the other hand, where the line of
demarcation is clear, the verification will still serve its purpose.
Fourth, for document requests, the substantive
response must conform to the Code. There
are relatively tight rules as to what the response must say, and the response
must say it. For example, where a
responding party is not producing documents because they are not in the party’s
possession, custody, or control, the responding party must verify that a
diligent search has been made and must further provide the information set
forth in the Code of Civil Procedure in such cases. In the case of interrogatories, the responses
must also conform to the Code of Civil Procedure and must be made after
diligent inquiry. It is not proper to
refuse to respond because the responding party has no personal knowledge. If the knowledge is hearsay, it must still be
disclosed, although it can be qualified to make it clear that it is not based
on the verifier’s personal knowledge.
Fifth, the Court frowns on responses that do not
conform to the foregoing rules being served with the view that the responses
will moot themselves out in the meet and confer process. That is not how the process works. A good faith response is required before the
meet and confer process begins. The meet
and confer process will (hopefully) bridge the gaps between the parties’
respective positions. Further, where a
response to a request for documents is made and documents are to be produced
subject to certain objections (with the documents withheld properly
delineated), the documents should be turned over irrespective of the meet and
confer. The documents are to be produced
with alacrity to the extent that there is no objection to them.
What this means is that the response to a discovery request
is not a trivial undertaking. Nabbing
the response from the form file is a generally bad idea and can lead to all
objections being waived. The point is
that the boilerplate often renders the remainder of the response useless. The only exception is where it is clear that
the substantive response is not in any way limited by the objections. In that case, the objections do no harm,
although they also do no good.
The Code of Civil
Procedure requires that before a motion to compel further responses or a motion
for a protective order is filed, the parties engage in a good faith attempt to
resolve their differences. They are to
“meet and confer” for that purpose. Only
if that effort fails can a motion be brought.
Sadly, many
litigants view the meet and confer process as just another procedural hoop
through which they must jump in order to bring the motion, similar to the need
to include an actual demurrer with the demurrer papers. The Code requires it, so they do it, but no
one’s heart is really in it. That is not
sufficient.
Given that, the
Court believes it appropriate to set forth how the Court views the meet and
confer requirement. Failure to abide by
the guidelines below may well justify denial of the motion or a continuance of
it to allow the process to take place.
If one party but not the other refuses to participate as set forth, more
likely than not the party refusing to participate will find itself on the
losing end of the motion. The following
quotation fairly sums up the Court’s own view.
“[W]e feel compelled
to observe that resort to the courts easily could have been avoided here
had both parties actually taken to heart Justice Stone's
admonitions in Townsend that ‘the statute requires that there
be a serious effort at negotiation and informal resolution.’ (Townsend,
supra, 61 Cal.App.4th at p. 1438.) Perhaps after 11 years it is
necessary to remind trial counsel and the bar once again that ‘[a]rgument is not the
same as informal negotiation’ (id at p. 1437); that attempting
informal resolution means more than the mere attempt by the discovery proponent
‘to persuade the objector of the error of his ways’ (id. at p.
1435); and that ‘a reasonable and good faith attempt at informal resolution
entails something more than bickering with [opposing] counsel.... Rather, the law requires that counsel attempt
to talk the matter over, compare their views, consult, and deliberate.’ (Id. at
p. 1439.)” (Clement v. Alegre (2009) 177 Cal.App.4th
1277, 1294, emphasis in original, parallel citations omitted.)
In practical terms, it means as
follows. It is entirely appropriate to
begin the process with a letter or other correspondence. The letter should not include a demand in the
form of an ultimatum, but it can certainly include the relief that is being
sought with an invitation to meet and confer.
It is also entirely appropriate for the other party to respond with a
letter or other correspondence to set forth its position on the issues. Such an initial exchange can often be helpful
to narrow the dispute. Whether further
exchanges make sense will depend on each case and each dispute.
However, at some point, before impasse is
reached the process must include an actual “meet.” The letters might well suffice to “confer,”
but an exchange of correspondence is not a meeting. In the COVID-19 era, the “meeting” can be
virtual or telephonic, but a meeting there must be. The meeting must be attended by a person from
each side with the authority to agree to the other side’s position without
getting further permission from anyone, including the client. If only the client can give the needed authority,
then the client must be available instantaneously at all times during the
meeting. This does not mean that one
side or the other must concede, but it does mean that the people meeting have
the ability in real and practical terms to strike a deal then and there.
The parties should approach the meet and
confer process as a problem-solving exercise.
The purpose of the meet and confer is not to convince the other side of
the bankruptcy of its position; rather the purpose is to reach an agreement by
which the party seeking discovery is able to obtain the information that it
reasonably needs and the party providing discovery is not put to an undue
burden or forced to provide unnecessary information that might infringe on a
privacy interest or disclose a competitive trade secret or the like.
At the conclusion of the meet and confer,
the parties should have an agreed statement as to the outcome. If the outcome is a total impasse, then they
should agree on that. If they have
resolved some or all of their differences, then they should state—in
writing—what that agreement is so that there will be no confusion later. Often, an agreement will be without prejudice
to a further request by the propounding party for more information after that
party receives the responses.
If a motion is still required, the
declaration in support should describe with some detail the meet and confer
process. While the Court is not
interested in the back and forth, the Court is interested in when the meeting
took place, who was there, and how long it lasted.
All communications—in writing or oral—must
be civil, polite, and professional.
Name-calling and accusations are devices that undermine the process;
they do not further it. A party engaging
in such activity generally is not acting in a good faith effort to reach an
agreement.