Judge Michael E. Whitaker, Case 19STCV15119 2022-12-06 Tentative Ruling

Judge: Michael E. Whitaker, Case: 19STCV15119, Date: 2022-12-06 Tentative Ruling

Case Number: 19STCV15119 Hearing Date: December 6, 2022 Dept: 32

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

TENTATIVE RULING

DEPARTMENT	32
HEARING DATE	December 6, 2022
CASE NUMBER	19STCV15119
MOTION	Motion to Compel Further Responses To Special Interrogatories, Set 2; Request for Monetary Sanctions
MOVING PARTY	Defendant City of San Gabriel
OPPOSING PARTY	None

In the complaint filed on May 1, 2019, Plaintiff Roxann Robertson (“Plaintiff”) alleges that she was injured after tripping and falling on a sidewalk in the City of San Gabriel. (See Complaint, ¶ 8.) Defendant City of San Gabriel (“Defendant”) moves the Court for an order compelling Plaintiff to provide further responses to the following discovery request:

Special Interrogatories, Set 2, Propounded to Plaintiff

Propounded: September 12, 2022
Responded: October 13, 2022
Motion Filed: October 28, 2022

Plaintiff has not filed an opposition to the motion.

Procedural Requirement - INFORMAL DISCOVERY CONFERENCE

            Per the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts Effective October 10, 2022 (Filed September 20, 2022), ¶ 9E, “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.”

            Here, the Court finds that Defendant and Plaintiff have complied with the Standing Order in scheduling and attending an IDC on December 1, 2022 before the hearing on the subject motion.

Timeliness of Motion

            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., §§ 2030.300, subd. (c).) Failure to file such a motion within this time period constitutes a waiver of any right to compel further responses to interrogatories. (Ibid.)

Here, Defendant filed the motion on the date set forth above. Plaintiff has not objected to the timeliness of the motion.

            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.)

            “The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order. . . . This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434-1435 [cleaned up].) To comply, “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; see also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [to satisfy the attempt at informal resolution required in section 2016.040 opposing parties must do more than try to persuade each other of their errors].) In short, the Discovery Act “requires that there be a serious effort at negotiation and informal resolution.” (Townsend v. Superior Court, supra, 61 Cal.App.4th at p. 1438.)

            To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) Cal.App.4th 424, 433.) In determining if parties have satisfied section 2016.040, judges may consider “the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Id. at pp. 431-432 [holding that the trial court was correct in determining that sending a letter with oppositions was an insufficient attempt at an informal resolution].) In sum, meet and confer efforts should go beyond counsel merely sending letters to each other stating each party’s respective positions.

            Here, as set forth in the Declaration of April M. Mitchell (“Mitchell”), Counsel for Defendant, Mitchell states the following regarding her effort to meet and confer with Counsel for Plaintiff:

“On September 1, 2022, Mr. Gharmezian sent me an email requesting meet and confer efforts be provided in writing. As such, on October 14, 2022, I served a written meet and confer correspondence outlining all of the deficiencies and shortcomings in Plaintiff’s responses. I advised I would be forced to move to compel should Plaintiff not provide supplemental responses. I further advised the City would seek sanctions should it be forced to incur additional unnecessary fees and costs. Attached hereto as Exhibit 3 is a true and correct copy of the meet and confer correspondence.”
“Plaintiff’s counsel indicated supplemental responses would be received no later than October 26, 2022. Plaintiff’s counsel never provided supplemental responses and/or communicated with me further at all on this issue.”

(See Declaration of April M. Mitchell, ¶¶ 4-5.)

Apart from those statements, Mitchell does not provide any other detail about what issues were specifically addressed and discussed with Counsel for Plaintiff. Moreover, Mitchell does not advance information regarding when or how Counsel for Plaintiff stated that “supplemental responses would be received no later than October 26, 2022” which was apparently set to be served two days before Defendant filed the instant motion. Was it by letter? Was it by phone? Was it by email?

Further, the Court finds Mitchell’s statement (“I advised I would be forced to move to compel should Plaintiff not provide supplemental responses” and “I further

advised the City would seek sanctions should it be forced to incur additional unnecessary fees and costs”) to be ultimatums as opposed to a “reasonable and good-faith attempt at an informal resolution of each issue presented by the motion.” And when Defendant did not receive the “supplemental responses” on October 26, 2022, Mitchell provides no information about whether she attempted to contact Counsel for Plaintiff to inquire about such responses and whether she was prepared to extend the deadline for the service such “supplemental responses” in exchange for an extension of the deadline for the filing and service of the instant motion.

In addition, the Court notes the following history:

Propounded: September 12, 2022
Responded: October 13, 2022
Meet and Confer Email to Plaintiff: October 14, 2022
Motion Filed: October 28, 2022

Based upon this chronology, Defendant filed the instant motion 15 days after the initial responses were served and 14 days after Defendant served its only meet and confer correspondence on Plaintiff. This history begs the question: Does it reflect a party interested and/or willing to “talk the matter over, compare their views, consult, and deliberate” in an effort to avoid a trial court’s intervention in a discovery dispute? Without more, the Court finds that the answer is No.

            Accordingly, the Court finds that Defendant has failed to meet and confer with Plaintiff in a reasonable and good faith attempt at an informal resolution of the issues presented in the motion for the reasons stated. The Court finds that Defendant’s purported meet and confer efforts in advance of filing the subject motion were woefully inadequate and certainly did not fulfill Defendant’s minimum obligations under the Discovery Act. In other words, the Court finds that there was no serious effort at negotiations and informal resolution by Defendant.

            Monetary Sanctions

A trial court may sanction a party for engaging in the misuse of discovery, which includes: failure to respond or submit to an authorized method of discovery; making an evasive response to discovery; making, without substantial justification, an unmeritorious objection to discovery; making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery; and failing to confer in a reasonable and good faith attempt to resolve informally any dispute concerning discovery. (See Code Civ. Proc., § 2023.010, emphasis added.)

            In addition, Code of Civil Procedure section 2030.300, subdivision (d) provides: “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.”

            Here, Defendant seeks monetary sanctions. But with the Court finding that Defendant failed to engage in a reasonable and good faith attempt to informally resolve the discovery issues before filing the subject motion, the Court denies Defendant’s request for monetary sanctions against Plaintiff.

CONCLUSION AND ORDERS

Therefore, the Court denies Defendant’s motion to compel further responses to Special Interrogatories, Set 2, for the reasons stated above, and orders Defendant to provide notice of the Court’s orders and file a proof of service of such.