Judge Michael E. Whitaker, Case Number: 22STCV13645, Date: 2023-05-24 Tentative Ruling

Judge: Michael E. Whitaker, Case: 22STCV13645, Date: 2023-05-24 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 April 25, 2022, Plaintiffs Kenneth Washington, Kimberly Hagen (“Hagen”) and Marley Washington (“Washington”) (collectively, “Plaintiffs”) allege that they were injured as a result of motor vehicle collision. Plaintiffs further allege that Defendant Raul Espinoza, who is employed by Defendant City of Hawthorne (“Defendant”) negligently operated the vehicle that collided with the vehicle occupied by Plaintiffs. (See Complaint, pp. 4-6.) Defendant moves the Court for an order compelling Plaintiffs Hagen and Washington to provide further responses to the following discovery requests:

· Request for Identification and Production of Documents, Set 1, Propounded to Plaintiff Marley Washington (“RFP”) (MOTION A)

· Request for Identification and Production of Documents, Set 1, Propounded to Plaintiff Kimberly Hagen (“RFP”) (MOTION B)

Plaintiffs Hagen and Washington have filed oppositions to the motions. Defendant replies to the oppositions.

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 the parties have complied with the Standing Order in scheduling and attending an IDC on March 23, 2023 before the hearing on the motions.

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.)

Defendant filed the motions on the dates set forth above. Plaintiffs Hagen and Washington have 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).) “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 Alison Stevens (“Stevens”), counsel for Defendant states in pertinent part as follows:

· On October 28, 2022, Defendant sent a meet-and-confer letter to Plaintiff’s counsel regarding the insufficient discovery responses. I offered to afford Plaintiff extra time to provide supplemental responses in exchange for an extension of time within which to file a motion to compel, if necessary. A true and correct copy of my October 28, 2022, meet-and confer letter is attached hereto as Ex. "E." Plaintiff ignored the meet and confer attempt as of the filing of this motion, no further responses have been forthcoming and Plaintiff has made no attempt to contact defense counsel. Court intervention is needed to compel the interrogatory answers and information so that Defendant may prepare itself adequately for trial.

(Declaration of Alison Stevens, ¶ 4, Exhibit E.) Notwithstanding Counsel’s assertion, upon examination of Exhibit E, the Court finds that Defendant’s meet and confer letter does not pertain to Plaintiff Washington. In fact, Exhibit E concerns Plaintiff Kimberly Hagen only; there is no reference to Washington and/or Washington’s purportedly deficient responses to the subject discovery request.

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

On the other hand, regarding Plaintiff Hagen, the Court finds that Defendant met and conferred with Plaintiff Hagen in a reasonable and good faith attempt at an informal resolution of the issues presented in the motion as noted in Stevens’ declaration. Plaintiff Hagen did not respond to Defendant’s meet and confer efforts. Accordingly, the Court finds that Defendant fulfilled its minimum obligations under the Discovery Act concerning Plaintiff Hagen.

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 separate statements related to the motions which comply with Rule 3.1345.

“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., § 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].)

With respect to demands for inspection of documents or other items, the Discovery Act provides as follows:

The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. (3) An objection to the particular demand for inspection, copying, testing, or sampling.

(Code Civ. Proc., § 2031.210, subd. (a).) “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.” (Code Civ. Proc., § 2031.230.)

“The objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.) The California Supreme Court further noted that “[s]ome burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id. at p. 418.)

“The state Constitution expressly grants Californians a right of privacy. Protection of informational privacy is the provision’s central concern. . . . The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.^{^[2]} The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [cleaned up].)

“Legally recognized privacy interests [include] interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’) . . . .” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “A particular class of information is [sensitive or confidential] when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.” (Ibid.)

It is “well-settled” that “patients have a right to privacy with respect to information contained in . . . [their] medical records.” (Grafilo v. Wolfsohn (2019) 33 Cal.App.5th 1024, 1034.) Indeed, a patient’s right to privacy “is protected by case law as well as state and federal statutes and regulations.” (County of Los Angeles v. Superior Court (2021) 65 Cal.App.5th 621, 641 (hereafter County of Los Angeles).) Additionally, “[t]he privacy interest in psychiatric records is particularly strong, and in some respects, entitled to more robust protection than other types of medical records.” (Grafilo v. Soorani (2019) 41 Cal.App.5th 497, 507.)

“As one court explained in discussing the examination of medical records vis-à-vis the right to privacy: the information that may be recorded in a doctor’s files is broad-ranging. The chronology of ailments and treatment is potentially sensitive. Patients may disclose highly personal details of lifestyle and information concerning sources of stress and anxiety. These are matters of great sensitivity going to the core of the concerns for the privacy of information about an individual.” (County of Los Angeles, 65 Cal.App.5th at pp. 641–642 [cleaned up].)

In Britt v. Superior Court (1978) 20 Cal.3d 844, 859, it was recognized that “the filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of . . . privacy.” However, the California Supreme Court held that “the scope of such ‘waiver’ must be narrowly rather than expansively construed.” (Ibid.) In other words, “while [a plaintiff] may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” (Ibid.) Therefore, it follows that a patient cannot reasonably expect certain matters to remain private if they are related to the specific issues that the patient has himself brought before a court. On the other hand, it is objectively reasonable to expect health care records that are unrelated to a current legal dispute to remain private.

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.)

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”].)

Foremost, the Court notes that Plaintiff Hagen did not raise any objections to RFP No. 8, but Plaintiff Hagen asserted objections to RFP Nos. 7 and 9 on the grounds of burdensome, attorney-client privilege, right to privacy and attorney work product.

First, Plaintiff Hagen has not made an adequate showing that responding to RFP Nos. 7 and 9 will be burdensome, overbroad or oppressive. Second, Plaintiff Hagen has the initial burden to establish that documents responsive to RFP Nos. 7 and 9 are in fact privileged or the work product of her counsel, or invade her right to privacy, warranting protection from disclosure. Yet, Plaintiff Hagen has not produced a privilege log which would identify any responsive documents being withheld because of a privilege, privacy or other legitimate basis. Equally important, in opposition to the motion, Plaintiff Hagen has failed to proffer sufficient, competent evidence to establish that either the right to privacy, the attorney work product doctrine or attorney-client privilege thwarts Defendant’s efforts to obtain documents responsive to RFP Nos. 7 and 9. In short, the Court finds that Plaintiff Hagen’s objections to RFP Nos. 7 and 9 are unmeritorious.

Turning to the issue of whether Plaintiff Hagen provided code compliant responses to RFP Nos. 7, 8 and 9, the Court rules as follows:

The Court finds Plaintiff Hagen’s supplemental response to RFP No. 7 [3] is not compliant with Code of Civil Procedure sections 2031.210 and 2031.320.

The Court finds Plaintiff Hagen’s supplemental response to RFP No. 8 [4] is not compliant with Code of Civil Procedure sections 2031.210 and 2031.320.

The Court finds Plaintiff Hagen’s supplemental response to RFP No. 9 [5] is not compliant with Code of Civil Procedure sections 2031.210 and 2031.320.

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.”

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 Defendant’s notice of motion, Defendant states in pertinent part: “Defendant, City of Hawthorne, will and hereby does move the court for an order compelling Plaintiff, Kimberly Hagen, to provide further responses to Judicial Council Request for Production of Documents and order Plaintiff and/or her counsel to pay monetary sanctions in the amount of $1,320.00.” Although the Court finds the language to be sufficient notice for requesting sanctions against Plaintiff Hagen, the Court finds the language to be insufficient notice for requesting sanctions against counsel for Plaintiff Hagen. [6]

Here, Defendant seeks monetary sanctions in connection with Motion B based upon Plaintiff Hagen’s failure to provide complete, substantive responses to the subject discovery request. The Court finds Plaintiff Hagen’s failure to provide code compliant responses to be an abuse of the discovery process, warranting monetary sanctions. Accordingly, the Court will impose monetary sanctions against Plaintiff Hagen in the amount of $1000.00 which represents four hours of attorney time to prepare the moving and reply papers, and attend the hearing, at $250 per hour.

Therefore, the Court denies Defendant’s Motion A as to Plaintiff Washington based upon the reasons set forth above.

Further, the Court grants Defendant’s Motion B as to Plaintiff Hagen per Code of Civil Procedure section 2031.310 for the reasons state above, and orders Plaintiff Hagen to serve further verified and code compliant responses to the Request for Identification and Production of Documents, Set 1, Nos. 7, 8 and 9, within 30 days of notice of the Court’s orders.

Further, the Court orders Plaintiff Hagen to pay monetary sanctions in the amount of $1000.00 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 regarding the same.

[1] Plaintiff Hagen’s supplemental response to the RFP are attached to Plaintiff Hagen’s opposition as Exhibits 3 and 4.

[2] “This initial inquiry is necessary to permit courts to weed out claims that involve so insignificant or de minimis an intrusion on constitutionally protected privacy interests as not even to require an explanation or justification by the defendant.” (Lewis v. Superior Court (2017) 3 Cal.5th 561, 571 [cleaned up].)

[3] “In as much as plaintiff can understand the question, those documents in the possession, custody, or control of plaintiff will be produced as bates stamped documents 000027 through 000051. Documents are being requested and will be supplemented when received. Discovery and investigation are ongoing, and Responding Party reserves the right to supplement or amend its responses up to and including through trial.”

[4] “In as much as plaintiff can understand the question, none exist. Discovery and investigation are ongoing, and Responding Party reserves the right to supplement or amend its responses up to and including through trial.”

[5] “In as much as plaintiff can understand the question, a diligent search and a reasonable inquiry has been made in an effort to comply with this request, but the particular item has never been in the possession, custody, or control of the responding party. Discovery and investigation are ongoing, and Responding Party reserves the right to supplement or amend its responses up to and including through trial.”

[6] “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	May 24, 2023
CASE NUMBER	22STCV13645
MOTIONS	Motions to Compel Further Responses To Request for Identification and Production of Documents, Set 1; Requests for Monetary Sanctions
MOVING PARTY	Defendant City of Hawthorne
OPPOSING PARTIES	Plaintiffs Kimberly Hagen and Marley Washington