Judge: Mark H. Epstein, Case: 23SMCV05984, Date: 2025-01-10 Tentative Ruling
Case Number: 23SMCV05984 Hearing Date: January 10, 2025 Dept: I
The court has before it four motions to compel and two
motions to deem admitted. Plaintiff
alleges that the discovery was served on July 2, 2024. In response to requests from the defense, a
number of extensions were given.
Defendant served responses on September 16, 2024, but plaintiff did not
believe they were adequate. Plaintiff
sent a meet and confer letter on September 23, 2024, spelling out the problems
with the responses including the lack of any verification. Defendant, even so, did not serve
supplemental responses or verifications.
On October 24, 2024, plaintiff filed this motion. Defendant states that the verifications were
received by counsel on September 20, 2024 for Frumes—a few days after the
responses were served—and counsel thought they were in fact forwarded. Counsel states that it was not until getting
the motions that counsel learned that the verifications were not in fact
served. Defendant thereafter promptly
served the verifications, but plaintiff did not take the motion off
calendar. According to the defense, the
motion is MOOT, perhaps other than for sanctions, as to Frumes. Plaintiff, in reply, concedes that the motion
is moot on the merits as to Frumes, but still seeks sanctions.
The motion is not moot as to Desrouleaux, who still has not
verified the responses. Counsel states
that Desrouleaux has not been responsive to requests for verification. That is troubling to the court. The court will take it as true that
Desrouleaux is very busy. But that is no
excuse. The discovery was served over a
half year ago. The responses—which the
court assumes were approved by Desrouleaux—were served three and a half months
ago. The court knows a lot of busy
people, but all of them are able to read emails and, through Docusign or in
some other manner verify responses. To
be sure, Desrouleaux’s busy schedule would excuse a short delay, but not one of
this length. Nor is there evidence that
Desrouleaux was somewhere so remote as to be out of contact, like the top of
Mt. Everest. The request for a 30 day
extension is DENIED. Of course, if Desrouleaux
is too busy for the case, he need not participate. He always has the right to take a default and
avoid the hassle. There are consequences
to that course, but it is an option to him and his busy life.
The court has looked at the original responses. The court agrees with plaintiff that the
objections are boilerplate. Between the
boilerplate objections and the lack of verifications, plaintiff’s motion was
indeed well taken. And the answers make
no sense. For example, special
interrogatory 13 to Frumes asks defendant to “Describe all actions taken by you
to avoid the INCIDENT.” After objecting
that the interrogatory calls for a legal conclusion and expert opinion (which
it plainly does not) and that it calls for attorney/client privileged
information (which it plainly does not) and is subject to the “work product
privilege” (which it is not and which is not a privilege), the response is
“”Discovery is ongoing. Responding Party
reserves the right to amend and/or supplement these responses as
necessary.” That answer is plainly bad
faith and designed to avoid giving plaintiff any information. That said, the Frumes motion is plainly
MOOT. Plaintiff will have 45 days from
today to file any motion to compel.
However, the court warns the defense that if the objections are what
they were and such a motion is filed, the motion will likely be granted and the
court will hold all objections waived.
The amount of time to file verified responses without objection,
including the production of any documents requested, will likely be measured in
days, not weeks. The motion for
sanctions is GRANTED. As to Desrouleaux,
the motions are granted. Desrouleaux
will, within 2 court days, serve verified responses to all discovery without
objection other than privilege. Any
privilege log and any responsive documents will be served at the same
time. As to the requests for admission
against Desrouleaux, unless verified responses were served prior to this
hearing, the request to deem admitted is GRANTED. If verified responses without objection were
served, then it will be deemed MOOT other than for sanctions.
The request for sanctions is GRANTED in the amount of $5500
as against defendants and counsel jointly, payable within 30 days. The reduction is based on the fact that the
motions were essentially cut and paste jobs.
For defendant’s aid, the court sets forth below its
guidelines on discovery.
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” should 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 should 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 should accompany the answer or be
provided within a short and reasonable time after the answer, and the log will
serve as the explanation. 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 generally 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 of Civil Procedure. 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 section 2031.230 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, but the court
recognizes that there is often a lag between the date responses are served and
the date that the documents are produced.
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 of Civil Procedure 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 or at least articulate plainly the boundaries. Whether further exchanges make sense will
depend on each case and each dispute.
However, at some point before impasse is
reached the process must generally 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 should 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.
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 further 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 (and indeed describing it can be counter-productive),
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.
Informal Discovery Conferences
The court generally prefers an Informal Discovery Conference
(IDC) before any party files a motion to compel further responses, and the
failure to use this avenue of resolution can greatly affect the amount of
sanctions that might be awarded because sanctions are limited to fees that are
reasonable and necessary. The goal of
the IDC is to “get to yes.” To achieve
that goal, the court adopts the following.