Judge: Michael E. Whitaker, Case: 19STCV15119, Date: 2023-01-31 Tentative Ruling

Case Number: 19STCV15119    Hearing Date: January 31, 2023    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 or adopt the tentative ruling as the order of the Court.  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. 

NOTE:  2 TENTATIVE RULINGS BELOW

TENTATIVE RULING - NO. 1

MOTION

            Defendant City of San Gabriel (Defendant) moves the Court to compel the appearance of Plaintiff Roxann Robertson (Plaintiff) for deposition.  Defendant requests monetary sanctions in connection with the motion.  Plaintiff has not filed an opposition to the motion.  

ANALYSIS

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”  (Code Civ. Proc., § 2025.450, subd. (a).)

Here, on July 15, 2022, Defendant served the Third Amended Deposition Notice on Plaintiff.  Defendant noticed the deposition of Plaintiff for July 27, 2022.  On July 26, 2022, counsel for Plaintiff indicated that the deposition needed to be rescheduled and would provide alternative dates for the deposition.  As of the date of filing of this motion, Plaintiff has not appeared for deposition and counsel for Plaintiff has not provided alternative dates for the deposition.  (See Declaration of April M. Mitchell.) 

Defendant seeks monetary sanctions in connection with the motion. The Court finds Plaintiff’s failure to appear for deposition to be an abuse of the discovery process, warranting monetary sanctions. (See Code Civ. Proc., §§ 2023.010, subd. (d), 2025.450, subd. (g)(1).) Accordingly, the Court will impose monetary sanctions against Plaintiff, in the amount of $570, which represents three hours of attorney time to prepare the motion and attend the hearing at $190 per hour. [1]

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to compel Plaintiff to appear for deposition per Code of Civil Procedure section 2025.450, and orders Plaintiff to appear for deposition, within 30 days of notice of the Court’s order, unless Defendant stipulates otherwise.

Further, the Court orders Plaintiff to pay monetary sanctions in the amount of $570 to Defendant, by and through counsel for Defendant, within 30 days of notice of the Court’s orders.

Defendant shall provide notice of the Court’s orders and file a proof of service of such.

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 or adopt the tentative ruling as the order of the Court.  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 - NO. 2

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

1. Propounded:  September 12, 2022

2. Responded:  October 13, 2022

3. Motion Filed:  October 28, 2022

    

   Plaintiff has not filed an opposition to the motion. 

    

               Following the initial hearing on December 6, 2022, Defendant filed supplemental papers in support of the motion, and Plaintiff filed the declaration of Raymond Ghermezian, counsel for Plaintiff. Counsel for Plaintiff requests that the court continue the hearing to after the hearing on counsel for Plaintiff’s motion to be relieved as counsel set for hearing on March 24, 2023.  The Court declines to continue the hearing. 

    

   Procedural Requirements

    

               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) 67 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. 

   

  Notwithstanding the Court’s finding that Defendant failed to meet and confer with Plaintiff as required by the Discovery Act, per Obregon v. Superior Court, supra, 67 Cal.App.4th at pp. 434-436, the Court continued the hearing on the motion to compel further discovery responses to permit the parties ample time and opportunity to informally resolve the issues presented in the motion. 

   

  To that end, Mitchell sent an email to counsel for Plaintiff on December 28, 2022 requesting counsel for Plaintiff’s availability to meet and confer.  Counsel for Plaintiff agreed to meet and confer telephonically on December 28, 2022, but when Mitchell called counsel for Plaintiff, counsel for Plaintiff was unavailable.  Mitchell thereafter sent another email on the same date but counsel for Plaintiff did not respond. (Supplemental Declaration of April M. Mitchell, ¶¶ 5-6.)  On January 5, 2023, Mitchell called counsel for Plaintiff but he was unavailable; Mitchell also sent an email to counsel for Plaintiff on the same date requesting call from counsel for Plaintiff.  Counsel for Plaintiff did not call.  (Supplemental Declaration of April M. Mitchell, ¶¶ 7-8.)  On January 6, 2023, counsel for Plaintiff called Mitchell indicating that he was moving and would contact Mitchell in the afternoon.  Counsel for Plaintiff did not contact Mitchell.  (Supplemental Declaration of April M. Mitchell, ¶ 9.)  

             

              Accordingly, the Court finds that Defendant has attempted to meet and confer with Plaintiff in a reasonable and good faith attempt at an informal resolution of the issues presented in the motion.  The Court finds that despite Defendant’s meet and confer efforts Plaintiff has failed to meet and confer with Defendant to resolve the issues presented in the motion without the Court’s intervention. 

   

  Separate Statement

   

              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. 

   

              Here, Defendant has filed a separate statement related to the motion in compliance with the Rules of Court.   

   

  Analysis

             

  Motion to Compel – Special Interrogatories

   

              “The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise.  In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”  (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)  

   

              Where a party objects or responds inadequately discovery requests, a motion lies to compel further responses, and that party has the burden to justify the objections or inadequate responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Code Civ. Proc., § 2030.300, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to interrogatories”].)  “A trial court's determination of a motion to compel discovery is reviewed for abuse of discretion.  However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court's factual findings will be upheld if they are supported by substantial evidence.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [cleaned up].)

   

            “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.  If an interrogatory cannot be answered completely, it shall be answered to the extent possible.  If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”  (Code Civ. Proc., § 2030.220, subds. (a)-(c).) 

            Here, the Court finds that Plaintiff’s objections to the subject discovery requests to be unmeritorious and/or Plaintiff failed to serve complete and straightforward responses to the subject discovery requests.  Accordingly, the Court rules as follows:

• Special Interrogatories Nos. 25; 26; 28; 32 & 33 -- GRANTED.

            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.” 

Foremost, per Code of Civil Procedure section 2023.040, “[a] request for a sanction shall, in the notice of the motion, identify every person, party, and attorney against whom the sanction is sought.”  Regarding Defendant’s notice of motion, Defendant state in pertinent part:  “An Order for monetary sanctions in the amount of $1,178.00 against Plaintiff and her Counsel.” Although the Court finds the language to be  sufficient notice for requesting sanctions against Plaintiff, the Court finds the language to be insufficient notice for requesting sanctions against counsel for Plaintiff. [1]

            Here, Defendant seeks monetary sanctions in connection with the motion based upon Plaintiff’s failure to provide complete, substantive responses to the subject discovery requests.  The Court finds Plaintiff’s failure to advance meritorious objections to the subject discovery requests, failure to provide complete, substantive responses to the subject discovery requests, and failure to confer in a reasonable and good faith attempt to resolve informally the disputes concerning the subject discovery requests, to be abuses of the discovery process, warranting monetary sanctions.  (See Code Civ. Proc., §§ 2023.010, subds. (e), (f) & (i), 2030.300, subd. (d).) Accordingly, the Court will impose monetary sanctions against Plaintiff in the amount of $1140.00 which represents six hours of attorney time to prepare the moving and supplemental papers, and attend the hearings at $190 per hour. 

CONCLUSION AND ORDERS

Therefore, the Court grants Defendant’s motion to compel further responses per Code of Civil Procedure section 2030.300, and orders Plaintiff to serve further verified responses to Special Interrogatories Nos. 25, 26, 28, 32 and 33, within 30 days of notice of the Court’s orders. 

Further, the Court orders Plaintiff to pay monetary sanctions in the amount of $1140.00 to Defendant, by and through counsel for Defendant, within 30 days of notice of the Court’s orders. 

Defendant shall provide notice of the Court’s orders and file a proof of service of such.