Judge: Michael E. Whitaker, Case: 21STCV12617, Date: 2023-03-30 Tentative Ruling

Case Number: 21STCV12617    Hearing Date: March 30, 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.  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

In the complaint filed on April 2, 2021, Plaintiff Susie Leivas (“Plaintiff”) alleges that she was injured after tripping and falling on a walkway owned, operated or controlled by Defendant New Vision Contractors (“Defendant”).  (See Complaint; Amendment to Complaint filed November 29, 2021.) 

Plaintiff moves the Court for an order compelling Defendant to provide further responses to the following discovery requests:

·         Form Interrogatories, Set 1,  Propounded to Defendant

a.       Propounded:         July 27, 2022

b.      Responded:           November 15, 2022

c.       Motion Filed:        December 23, 2022

·         Special Interrogatories, Set 1,  Propounded to Defendant

a.       Propounded:         July 27, 2022

b.      Responded:           November 15, 2022

c.       Motion Filed:        December 23, 2022

·         Request for Production of Documents, Set 1,  Propounded to Defendant

a.       Propounded:         July 27, 2022

b.      Responded:           November 15, 2022

c.       Motion Filed:        December 23, 2022

Defendant opposes the motion.  Plaintiff replies. 

            Foremost, the Court finds that Plaintiff filed a single motion to compel responses to three sets of discovery requests.  Instead, Plaintiff should have filed three separate motions compelling responses to the subject discovery requests.  The Court therefore will order Plaintiff to pay an additional $120 in filing fees to the Clerk of the Court.  (Gov. Code, § 70617, subd. (a).) 

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 Plaintiff and Defendant have complied with the Standing Order in scheduling and attending an IDC on March 27, 2023 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), 2031.310, 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, Plaintiff filed the motion on the date set forth above.  Defendant 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 Joshua Cohen Slatkin (“Slatkin”), Counsel for Plaintiff, Slatkin states the following regarding his effort to meet and confer with Defendant:

·         “On November 30, 2022, Plaintiff served a meet and confer letter to address the deficiencies in New Vision’s discovery responses.

·         New Vision has not served further or supplemental responses to Plaintiff’s special and form interrogatories and has failed to produce the non-privileged incident report in this matter.”

(See Declaration of Joshua Cohen Slatkin, ¶¶ 5-6.)  Apart from those statements, Slatkin does not provide any other detail about what issues were specifically addressed in the letter sent to Counsel for Defendant.  Further, Slatkin did not attach a copy of the letter to the declaration. 

            And when Plaintiff did not receive the “further or supplemental responses,” Slatkin  provides no information about whether he attempted to contact Counsel for Defendant to inquire about such responses and whether he was prepared to extend the deadline for the service such “further or supplemental responses” in exchange for an extension of the deadline for the filing and service of the instant motion. 

            In opposition to the motion, Defendant advances the Declaration of Marisa R. Quinzii, Counsel for Defendant, who states in pertinent part as follows: 

·         “On November 30, 2022, Plaintiff issued a lengthy, non-specific, meet and confer letter[.]

·         On December 15, 2022, New Vision responded to Plaintiff’s November 30, 2022 meet and confer letter via email[.]

·         New Vision offered an extension to Plaintiff’s motion to compel deadline to allow for further meet and confer efforts[.]

·         On December 16, 2022, New Vision served verifications to its responses to Plaintiff’s first set of written discovery requests.

·         Pursuant to Plaintiff’s meet and confer letter, New Vision served its Amended Responses to Plaintiff’s Request for Production, privilege log, and document production to Plaintiff.

·         Plaintiff never responded to or acknowledged New Vision’s Amended Responses to Plaintiff’s Request for Production, privilege log, and document production[.]

·         Instead of meeting and conferring, Plaintiff served New Vision with Motions to Compel further responses on December 23, 2022[.]

·         After the Motion was filed, New Vision continued to try and resolve the dispute[.]

·         New Vision provided all of Plaintiff’s requested information and documents per Plaintiff’s demand, except for the privileged incident report[.]

·         Despite New Vision’s efforts to resolve informally, Plaintiff refused to meet and confer and filed the instant Motions to compel.”

(Declaration of Marisa R. Quinzii, ¶¶ 3-12.) 

            In addition, the Court notes the following history: 

a.       Propounded:                                             July 27, 2022

b.      Responded:                                               November 15, 2022

c.       Plaintiff’s Meet and Confer Letter:          November 30, 2022

d.      Defendant Meet and Confer Response:    December 15, 2022

e.       Motion Filed:                                            December 23, 2022

Based upon that chronology, Plaintiff filed the instant motion 38 days after the initial responses were served; 23 days after Plaintiff served its only meet and confer correspondence on Defendant; and 8 days after Defendant served a response to Plaintiff’s meet and confer correspondence, which the Court notes Defendant offered to extend Plaintiff’s time to file motions to compel further discovery responses.  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 court’s intervention in a discovery dispute?  Without more, the Court finds that the answer is No. 

            Accordingly, the Court finds that Plaintiff has failed to meet and confer with Defendant 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 Plaintiff’s purported meet and confer efforts in advance of filing the subject motion were woefully inadequate and certainly did not fulfill Plaintiff’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 Plaintiff.        

            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.”  (See also Code Civ. Proc., § 2031.310, subd. (h).) 

            Here, Plaintiff 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 instant motion, the Court denies Plaintiff’s request for monetary sanctions against Defendant. 

CONCLUSION AND ORDERS

Therefore, the Court denies Plaintiff’s motion to compel further responses to Form Interrogatories, Set 1, Special Interrogatories, Set 1 and Request for Production of Documents, Set 1, for the reasons stated above. 

            In addition, the Court orders Plaintiff to pay an additional $120 in filing fees to the Clerk of the Court on or before April 13, 2023.    

            Plaintiff shall provide notice of the Court’s ruling and file a proof of service regarding the same.