Judge: Michael E. Whitaker, Case: 23SMCV02109, Date: 2023-10-04 Tentative Ruling

Case Number: 23SMCV02109    Hearing Date: October 4, 2023    Dept: 207

TENTATIVE  RULING

Petitioner Progressive West Insurance Company (“Petitioner”) filed a petitioner against Respondent Maxim Khromov (“Respondent”) stemming from an arbitration pursuant to the uninsured motorist provisions of Respondent’s insurance policy maintained by Petitioner.

Petitioner moves the Court for orders compelling Respondent to serve further responses to the following discovery requests: 

1.      Special Interrogatories (“SROG”), Set 1, Propounded to Respondent

·         Propounded:                                              February 2, 2023

·         Responses Served:                                    April 20, 2023

·         Motion Filed:                                            August 11, 2023

2.      Demand For Production of Documents (“DEMAND”), Set 1, Propounded to Respondent

·         Propounded:                                              February 2, 2023

·         Responses Served:                                    April 20, 2023

·         Motion Filed:                                            August 11, 2023

Respondent has not filed oppositions to the motions. 

Procedural Requirements

1.      Timeliness of Motion

            A notice of motion to compel further responses must be “given within 45 days of the service of the verified response, or any supplemental verified response, 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.  (Ibid.)

Here, Petitioner filed the motions on the date set forth above.  Respondent has not objected to the timeliness of the motions. 

2.      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 in 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 Declarations of Stephen P. Calendo, counsel for Petitioner, Petitioner asserts it has engaged in a reasonable and good faith attempt at an informal resolution of the issues presented in the motions.  (See Declaration of Stephen P. Calendo, ¶¶ 9-10, 13, 15, Exhibits E, F, H, I.)

            Because Respondent has not opposed the motions, countering the statements of Petitioner’s counsel, the Court finds that Petitioner has met the minimum standards in its attempt to informally resolve the discovery issues with Respondent before filing the motions as required by the Discovery Act.       

3.      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, Petitioner has filed separate statements related to the motions which complies with Rule 3.1345.

Analysis

1.      DISCOVERY – GENERAL PRINCIPLES

            “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  (Code Civ. Proc., § 2017.010.) 

            “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”].)  Further, “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 interrogatories, the Discovery Act requires as follows: 

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).)  Similarly, regarding requests for demands for production 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].)

2.      RULINGS

            Based upon the points and authorities noted above, the Court rules as follows:

a.      SPECIAL INTERROGATORIES

·         SROG No. 2:  GRANTED

·         SROG No. 3:  DENIED – Right to Privacy

·         SROG No. 4:  GRANTED

·         SROG No. 5:  DENIED – Right to Privacy

·         SROG No. 6:  GRANTED

·         SROG No. 7:  GRANTED

·         SROG No. 8:  GRANTED

·         SROG No. 9:  GRANTED

·         SROG No. 10:  GRANTED

·         SROG No. 11:  GRANTED

·         SROG No. 12:  GRANTED

·         SROG No. 13:  DENIED – Vague / Too general

·         SROG No. 14:  GRANTED

·         SROG No. 15:  GRANTED

·         SROG No. 16:  DENIED – Vague / Too general

·         SROG No. 17:  GRANTED

·         SROG No. 18:  GRANTED

·         SROG No. 19:  GRANTED

·         SROG No. 20:  GRANTED

·         SROG No. 21: DENIED – Vague / Too general

·         SROG No. 22:  GRANTED

·         SROG No. 23:  GRANTED

·         SROG No. 24:  GRANTED

·         SROG No. 25:  GRANTED

·         SROG No. 26:  GRANTED

·         SROG No. 27:  GRANTED

·         SROG No. 28:  GRANTED

·         SROG No. 29:  DENIED – Vague / Too general

·         SROG No. 30:  GRANTED

b.      DEMAND FOR PRODUCTION OF DOCUMENTS

·         DEMAND No. 1:  GRANTED

·         DEMAND No. 2:  GRANTED

·         DEMAND No. 3:  GRANTED

·         DEMAND No. 4:  DENIED – Vague / Too general

·         DEMAND No. 5:  GRANTED

·         DEMAND No. 6:  GRANTED

·         DEMAND No. 7:  GRANTED

·         DEMAND No. 8:  GRANTED

·         DEMAND No. 10 (9):  GRANTED

·         DEMAND No. 10 (Sic):  GRANTED

·         DEMAND No. 11:  GRANTED

·         DEMAND No. 12:  DENIED – Vague / Too general

·         DEMAND No. 13:  GRANTED

·         DEMAND No. 14:  DENIED -  Vague / Too general

·         DEMAND No. 15:  DENIED - Vague / Too general

·         DEMAND No. 16:  DENIED - Vague / Too general

·         DEMAND No. 17:  DENIED - Vague / Too general

·         DEMAND No. 18:  DENIED - Vague / Too general

·         DEMAND No. 19:  GRANTED

·         DEMAND No. 20  GRANTED

·         DEMAND No. 21:  GRANTED

·         DEMAND No. 22:  DENIED - Vague / Too general

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

            Here, Petitioner seeks monetary sanctions in connection with the motions based upon Respondent’s failure to provide complete, substantive responses to the subject discovery requests.  The Court finds Respondent’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 Respondent in the amount of $1023.30 which represents five hours of attorney time to prepare the moving papers, and attend the hearing, at $180.00 per hour, plus filing fees of $123.30 at $61.65 per motion.

CONCLUSION AND ORDERS

Therefore, the Court grants in part Petitioner’s motions to compel further responses per Code of Civil Procedure sections 2030.300 and 2031.310, and orders Respondent to serve further verified and code compliant responses, without objections, to the Special Interrogatories, Set 1; and Demands for Production of Documents, Set 1, as noted above, within 20 days of notice of the Court’s orders.

Further, the Court orders Respondent to pay monetary sanctions in the amount of $1023.30 to Petitioner, by and through counsel for Petitioner, within 20 days of notice of the Court’s orders. 

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

DATED: October 4, 2023                                           ___________________________

                                                                                    Michael E. Whitaker

                                                                              Judge of the Superior Court