Judge Michael E. Whitaker, Case 21STCV22089 2023-03-28 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21STCV22089, Date: 2023-03-28 Tentative Ruling

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.

In the complaint filed on June 11, 2021, Plaintiffs Grigor Karakhanyan and Vardui Grigoryan (collectively, “Plaintiffs”) allege that they were injured after Defendant Courtney Tight’s (“Defendant”) vehicle collided with Plaintiffs’ vehicle on June 18, 2019 in Los Angeles. (See Complaint, ¶¶ 6-7.)

Plaintiffs move the Court for orders compelling Defendant to provide further responses to the following discovery requests:

3. Request for Production of Documents, Set 1, Propounded to Defendant (Motion C)

Per the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts Effective October 10, 2022 [Filed 09/20/2022], ¶ 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).”

Here, the parties complied with the Standing Order in scheduling and attending the IDC on December 13, 2022.

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 or demands for production of documents admission. (Ibid.)

Here, Plaintiffs filed the motions on the dates set forth above. Defendant has not objected to the timeliness of the motions.

“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 Declarations of Frederick L. Stoker III, counsel for Plaintiffs, Plaintiffs attempted to meet and confer with counsel for Defendant by written and oral communications. (Declarations of Frederick L. Stoker III, ¶¶ 8-12, Exhibits D-F.)

Accordingly, the Court finds that Plaintiffs have made a good faith attempt to informally resolve the issues presented in the motions.

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, Plaintiffs have filed separate statements related to the motions in compliance with the Rules of Court.

“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 to 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”], 2031.310, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to a demand for inspection”].) “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].)

In opposition to the motions, Defendant contends that the motions are moot based upon the agreements reached between the parties at the IDC on December 13, 2022 and based upon the further discovery responses served on Plaintiffs. (See Declarations of Russell M. Rubin; Amended Notices of Lodging of Exhibits re Motions A & C; Notice of Lodging of Exhibits re Motion B.) Yet, according to Defendant, Plaintiffs did not take the motions off calendar. (Ibid.)

At the hearing on January 27, 2023, counsel for Plaintiffs, Frederick Stoker, conceded that the discovery disputes were moot except for Form Interrogatory No. 4.1. As to Form Interrogatory No. 4.1, the Court finds that Defendant is correct; Defendant served a further response that unequivocally states “No insurance policies for this incident.” In reply, Plaintiffs assert that the discovery issues have not been resolved in full.

Because of the divergent representations of the parties as to the status of the discovery disputes vis-à-vis the motions, the Court has assessed the motions in full and renders the rulings as set forth below.

· Form Interrogatories Nos. 2.11; 4.1; 12.6; 20.5 & 20.8: DENIED. The Court notes that Plaintiffs provided incorrect numbers for Form Interrogatories 20.5 and 20.8. In Plaintiffs’ Separate Statement, Form Interrogatories 20.5 and 20.8 are denoted as 20.3 and 20.9, respectively.

· Form Interrogatories No. 17.1: DENIED as procedurally defective. Plaintiffs failed to provide copies of the underlying Request for Admissions and Defendant’s responses thereto. Without such documentation, the Court is unable to determine if further responses are warranted.

· Request for Production of Documents Nos. 1, 2, 5, 7, 9, 11, 17, 19, 31 & 37: DENIED. [2]

· Request for Production of Documents No. 4: GRANTED with respect to (i) “June 18, 2019 ERS Accident/Incident Report with Dispatch” and (ii) “June 21, 2019 ERS Accident/Incident Report with Dispatch” (hereafter “ERS Reports”).

Per Evidence Code section 954, “[t]he client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.” (Evid. Code, § 954.) And “while attorney-client communications are presumed to be confidential, the party claiming the attorney-client privilege as a bar to disclosure has the burden of showing that the communication sought to be suppressed falls within the parameters of the privilege.” (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533 [cleaned up].)

Moreover, “[i]t has long been recognized that communications made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.” (Scripps Health v. Superior Court, supra, 109 Cal.App.4th at p. 535; see also Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424; Travelers Ins. Cos. v. Superior Court (1983) 143 Cal.App.3d 436.)

Here, the Court finds that Defendant failed to meet her burden to establish that the attorney client privilege applies to prevent the disclosure of the ERS Reports. Neither Defendant nor counsel for Defendant has proffered declarations which provide a factual basis for the application of the privilege.

Further, to the extent that the “Dominant Purpose Test” is applicable to determining whether the recorded statements are covered by the attorney-client privilege and not subject to disclosure, the Court finds that there is no evidence for the Court to make any determination under the “Dominant Purpose Test.”

The attorney work product doctrine is codified under Code of Civil Procedure section 2018.010, et seq.

(a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.

(b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts.

(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.

(See Code Civ. Proc., §§ 2018.020, 2018.030.) “Absolute protection is afforded to writings that reflect ‘an attorney's impressions, conclusions, opinions, or legal research or theories.’ All other work product receives qualified protection; such material ‘is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.’ ” (Coito v. Superior Court (2012) 54 Cal.4th 480, 485, citations omitted (hereafter Coito).)

In Coito, the California Supreme Court decided “[w]hat work product protection, if any, should be accorded two items: first, recordings of witness interviews conducted by investigators employed by defendant's counsel, and second, information concerning the identity of witnesses from whom defendant's counsel has obtained statements.” (Coito, supra, 54 Cal.4th at p. 485.) With respect to both items, the Coito court opined:

[W]e hold that the recorded witness statements are entitled as a matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its attorney's impressions, conclusions, opinions, or legal research or theories. If not, then the items may be subject to discovery if plaintiff can show that denial of discovery will unfairly prejudice [her] in preparing [her] claim or will result in an injustice.

As to the identity of witnesses from whom defendant's counsel has obtained statements, we hold that such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney's industry or efforts (qualified privilege).

(Id. at p. 486 [cleaned up].) Attorneys are the holders of the “work product privilege.” (See Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 468 [“The work product privilege is held by the attorney, not the client”].)

Here, Defendant has the initial burden to establish that the ERS Reports are in fact the work product of her counsel. But Defendant has not advanced any evidence that demonstrates that the ERS Reports are the work product of her counsel, warranting protection.

Based upon the record, the Court finds that neither the attorney client privilege nor the attorney work production doctrine applies to preclude the disclosure of the ERS Reports. Defendant has failed to proffer sufficient, competent evidence to establish that either the doctrine or privilege thwarts Plaintiffs’ efforts to obtain the ERS Reports. This is a simple failure of proof on the part of Defendant.

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; and making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (Code Civ. Proc., § 2023.010.)

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).)

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.” In Plaintiffs’ notices of motion, Plaintiffs state in pertinent part: “Plaintiffs Grigor Karakhanyan and Vardui Grigoryan (“Plaintiffs”) will and hereby do move this Court for an order compelling Defendant Courtney Tight to provided further responses to Plaintiffs’ first set of Form Interrogatories – General and imposing sanctions in the amount of $1,671.65.” Although the Court finds the language to be sufficient notice for requesting sanctions against Defendant, the Court finds the language to be insufficient notice for requesting sanctions against counsel for Defendant. [3]

Here, Plaintiffs seek monetary sanctions in connection with the motions based upon Defendant’s failure to provide complete, substantive responses to the subject discovery requests. The Court finds Defendant’s failure to provide complete, substantive responses to be an abuse of the discovery process, warranting monetary sanctions. Accordingly, the Court will impose monetary sanctions against Defendant in the amount of $934.95 which represents three hours of attorney time to prepare the motions and attend the hearing at $250 per hour, plus the filing fees of $184.95 at $61.65 per motion.

The Court denies Defendant’s request for monetary sanctions finding such request to be groundless.

Therefore, the Court grants, in part, Plaintiffs’ motions to compel further responses (Motions A-C) per Code of Civil Procedure sections 2030.300 and 2031.310, and orders Defendant to serve further verified and substantive responses to the subject Form Interrogatories, Set 1; Special Interrogatories, Set 1; and Request for Production of Documents, Set 1, within 30 days of notice of the Court’s orders, as set forth above.

Further, the Court orders Defendant to pay monetary sanctions in the amount of $934.95 to Plaintiffs, by and through counsel for Plaintiffs, within 30 days of notice of the Court’s orders.

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

[1] “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).)

[2] Code of Civil Procedure section 2031.230 requires “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

[3] “Where sanctions are sought against the opposing party's counsel, the notice of motion must expressly so state. It is not enough simply to attach declarations or a transcript showing that the deponent refused to appear or answer questions on counsel's advice.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:1985 (citing Blumenthal v. Superior Court (1980) 103 CA3d 317; Marriage of Fuller (1985) 163 CA3d 1070); see also id. at ¶ 8:1986 [“Where an award is sought against the attorney for advising the opposing party not to answer or respond, the notice of motion must identify the opposing counsel and state that sanctions are being sought against such counsel personally”].)

DEPARTMENT	32
HEARING DATE	January 27, 2023 – CONTINUED TO MARCH 28, 2023
CASE NUMBER	21STCV22089
MOTIONS	Motions to Compel Further Responses To: 1. Form Interrogatories, Set 1 2. Special Interrogatories, Set 1 3. Request for Production of Documents, Set 1
MOVING PARTIES	Plaintiffs Grigor Karakhanyan and Vardui Grigoryan
OPPOSING PARTY	Defendant Courtney Tight