Judge: Michael E. Whitaker, Case: 21STCV36469, Date: 2022-08-16 Tentative Ruling

Case Number: 21STCV36469    Hearing Date: August 16, 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

In the complaint filed on October 4, 2021, Plaintiff Grant Cofer (“Plaintiff”) alleges that he was injured after falling off of a “Onewheel” designed and manufactured by Defendant Future Motion, Inc. (“Defendant”).  Plaintiff moves the Court for an order compelling Defendant to provide further responses to the following discovery request:

1. Demand for Production of Documents, Set 2, Propounded to Defendant

   1. Propounded:  February 9, 2022

   2. Responded:  March 22, 2022

   3. Motion Filed:  July 14, 2022

       

      Defendant opposes the motion. 

       

      Procedural Requirements

       

                  Informal  Discovery Conference

       

                  Per the Seventh Amended Standing Order for Procedures in the Personal Injury Hub Courts Effective May 16, 2022 (Revised 05/04/2022), ¶ 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) . . . The purpose of the IDC is to assist the parties to resolve and/or narrow the scope of discovery disputes.”   

                 

                  Here, the parties  complied with the Standing Order in scheduling and attending the IDC on May 26, 2022.   

       

                  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., § 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 requests for production of documents.  (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., § 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, citations omitted [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.”  (Townsend, supra, 61 Cal.App.4th 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, 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 merely sending letters to each other stating each party’s respective positions.

       

                  Here, as set forth in the Declaration of Barry Novack (“Novack”), counsel for Plaintiff, the parties met and conferred in an attempt to resolve the discovery disputes in question.  (Declaration of Barry Novack, Exhibits 3-4.)  Defendant does not squarely contest Novack’s statements except to note that Novack, himself did not participate in the meet and confer process, but Samuel Winokur, counsel for Plaintiff, did so.  (Declaration of Scott M. Rusert, ¶ 10.) 

       

                  Accordingly, the Court finds that the parties engaged in a reasonable and good faith attempt at an informal resolution of the issues presented in the motion.    

       

                  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 which complies 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.4^th 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., § 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].)

       

      RULINGS RE Demand for Production of Documents:[1] 

       

      Demand No. 25:    GRANTED with respect to responsive documents that post-date the subject incident.

       

      Demand No. 26:    GRANTED with respect to responsive documents that post-date the subject incident.

       

      Demand No. 27:    GRANTED with respect to responsive documents that post-date the subject incident.

       

      Demand No. 28:    GRANTED.

       

      Demand No. 29:    GRANTED with respect to responsive documents that post-date the subject incident.

       

      Demand No. 30:    GRANTED with respect to responsive documents that post-date the subject incident.

       

      Demand No. 31:    GRANTED with respect to responsive documents that post-date the subject incident.

       

      Demand Nos. 32-33:    GRANTED. [2]

       

       

      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 2031.310, subdivision (h) provides: “”Except as provided in subdivision (j), 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, substantive responses to the subject discovery request.  The Court finds Defendant (i) failing to provide complete, substantive responses to the subject discovery request; (ii) making, without substantial justification, unmeritorious objections to the subject discovery request; and (iii) opposing, unsuccessfully and without substantial justification, a motion to compel further responses to the subject discovery request, are abuses of the discovery process, warranting monetary sanctions. 

       

                  Accordingly, the Court will impose monetary sanctions against Defendant and Defendant’s counsel of record, Sutton & Murphy, in the amount of $1560 which represents six hours of attorney time to prepare the moving and reply papers, and attend the hearing, at $250 per hour, plus the filing fee of $60.

       

      CONCLUSION AND ORDERS

       

      Therefore, the Court grants Plaintiff’s motion to compel further responses to the Demand for Production of Documents, set 2, per Code of Civil Procedure section 2031.310, and orders Defendant to serve further substantive responses to Demand Nos. 25-33 as stated above, within 30 days of notice of the Court’s orders. 

       

      Further, the Court orders Defendant and Defendant’s counsel of record, Sutton & Murphy, jointly and severally to pay monetary sanctions in the amount of $1560 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.