Judge: Michael E. Whitaker, Case: 21STCV35050, Date: 2023-04-14 Tentative Ruling

Case Number: 21STCV35050    Hearing Date: April 14, 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 September 23, 2021, Plaintiff Misael Garcia Menendez  (“Plaintiff”) alleges that he was injured as a result of Defendant Chloe Hind’s (“Defendant”) colliding with Plaintiff while he was in a wheelchair.  (See Complaint, pp. 4-6.)  Plaintiff moves the Court for an order compelling Defendant to provide further responses to the following discovery request:

·         Form Interrogatories, Set 1,  Propounded to Defendant

a.       Propounded:  June 20, 2022

b.      Responded:  July 22, 2022

c.       Motion Filed:  November 15, 2022

Defendant opposes the motion.  Plaintiff replies. 

Procedural Requirements

1.      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 January 19, 2023 before the hearing on the motion. 

2.      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.)

            Further, “[e]xcept as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.”  (Code Civ. Proc., § 2024.020, subd. (a); Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586 [“[i]f a party properly notices a discovery motion to be heard on or before the discovery motion cutoff date, that party has a right to have the motion heard. By negative implication, a party who notices a discovery motion to be heard after the discovery motion cutoff date does not have a right to have the motion heard”].) 

Plaintiff filed the motion on the date set forth above and initially scheduled the hearing on March 9, 2023.  Defendant objects to the timeliness of the hearing on the motion. 

Here, the trial was set for March 23, 2023.  Thus, under Section 2024.020, the last day to have motions concerning discovery heard was March 8, 2023.  But Plaintiff set the initial hearing on the motion for March 9, 2023 and had not sought relief from the discovery motion cut-off provisions under Code of Civil Procedure section 2024.050.  (See, e.g., Pelton-Shepherd Industries, supra, 165 Cal.App.4th at p. 1590 [“the trial court's abuse of discretion in considering (and granting) Pelton–Shepherd's motion to compel without first deciding whether to reopen discovery under section 2024.050 was prejudicial”].)

But the parties stipulated to continue the trial along with the discovery cut off dates which the Court approved on March 24, 2023.  The trial is now set for October 11, 2023, and, under Section 2024.020, the last day to have motions concerning discovery heard is September 26, 2023.  Accordingly, the Court finds Plaintiff’s motion to be timely and Defendant’s argument to the contrary to be unsound. 

3.      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).)  “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 Alexander J. Zeesman (“Zeesman”), counsel for Plaintiff, Plaintiff sent a meet and confer email to counsel for Defendant.  (Declaration of Alexander J. Zeesman, ¶ 6, Exhibit C.)  In response, Timothy B. Fitzhugh (“Fitzhugh”), counsel for Defendant, stated in writing that no additional responsive information regarding the subject form interrogatories would be served, explaining that such information was not in Defendant’s possession.  (Declaration of Timothy B. Fitzhugh, ¶ 5.)   

            Based upon the declarations of Fitzhugh and Zeesman, the Court finds that the parties have made a good faith attempt to informally resolve the issues presented in the motion. 

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

Analysis

            “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”].)  “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), emphasis added.)

Ruling

·         Form Interrogatory No. 12.1:  GRANTED to the extent that Defendant failed to provide a code compliant response with respect to (i) the unnamed witness as noted in the Traffic Collision Report No. 191821762, or (ii) other individuals, who may have witnessed the incident, including but not limited to “the welfare client Defendant had met with before the incident.”  In particular, it is unclear to the Court whether the “welfare client” witnessed the incident, but Defendant is withholding responsive information about the “welfare client.” 

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; 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.” 

            Here, Plaintiff seeks monetary sanctions in connection with the motion based upon Defendant’s failure to provide complete, code compliant responses to the subject discovery request.  The Court finds Defendant’s failure to provide complete, code compliant responses to be an abuse of the discovery process, warranting monetary sanctions. Accordingly, the Court will impose monetary sanctions against Defendant and the Law Office of Marvin P. Velastegui, counsel for Defendant, in the amount of $560.00 which represents two hours of attorney time to prepare the moving papers and attend the hearing at $250 per hour, plus the motion filing fee of $60.00. 

CONCLUSION AND ORDERS

Therefore, the Court grants Plaintiff’s motion to compel further responses per Code of Civil Procedure section 2030.300, and orders Defendant to serve further verified and code compliant response to the Form Interrogatories, Set 1, No. 12.1, within 30 days of notice of the Court’s orders.

Further, the Court orders Defendant and counsel for Defendant, the Law Office of Marvin P. Velastegui, jointly and severally to pay monetary sanctions in the amount of $560.00 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders. 

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