Judge Mitchell L. Beckloff, Case Number: 21STCP03121, Date: 2024-01-19 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP03121, Date: 2024-01-19 Tentative Ruling

WILSHIRE GAYLEY, LLC v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY

[Tentative] ORDER GRANTING MOTION TO COMPEL COMPLIANCE WITH PRODUCTION OF DOCUMENTS

ORDER GRANTING MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS

Petitioner, Wilshire Gayley, LLC, moves for an order compelling Respondent, Los Angeles County Metropolitan Transportation Authority (Metro), (1) to provide documents in compliance with its responses to Petitioner’s Request for Production of Documents (RFPs) (Set One) and (Set Two); (2) further responses to the RFPs; and (3) sanctions of $34,748. Metro opposes the motion.

Petitioner’s request for judicial notice is GRANTED pursuant to Evidence Code Sections 452, subdivisions (d), (h) and 453.

Respondent’s request for judicial notice is GRANTED pursuant to Evidence Code Sections 452, subdivisions (c), (d), (h) and 453.

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320, subd. (a).)

Pursuant to Code of Civil Procedure section 2031.310, subdivision (a), parties may move for a further response to requests for production of documents where an answer to the requests is evasive or incomplete or where an objection is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).)

Petitioner provides four categories for Metro’s alleged discovery deficiencies.

Category 3: Improperly narrowed scope of production – RFPs 26, 32, 38, 39, 40 and 42.

As an initial matter, Metro advises it intends to provide Petitioner with a production of documents for RFPs 1, 27, 28, 33 through 46. According to Metro, the production “will be ready in April” (Opposition 1:27), and Metro believes the production “should complete Metro’s production as to those requests.” (Opposition 1:27-28.)

Metro also advises it provided a full production of RFPs 22 through 26, 30 and 32 on December 12, 2023. Metro considers its production as to those requests as complete.

Given Metro’s representation additional documents will be forthcoming, it appears Categories 1, 2 and 3 have largely been resolved. That said, RFP 47 remains in dispute as does a production date, and whether Metro’s prior productions are complete and within the scope of the RFP.

First, Petitioner requests Metro be compelled to make its production no later than April 10, two weeks after today’s hearing. The court requests Metro advise of its ability to comply with such an order.

Second, Petitioner argues Metro “has not completed its production of documents responsive to” the Category 2 RFPs. (Reply 3:15.) Petitioner reports on December 12, 2023, Metro’s counsel advised it provided a “partial production” of RFPs 22, 23, 24 and 30. (See Stromberg Decl., Exh. I p. 59 [“[t]his is a partial production”].) Petitioner contends given Metro’s counsel’s representation, only two email communications within 964 produced pages, and Petitioner’s express request for documents/communications, the “Court should order Metro to comply with these [Category 2] requests and produce responsive documents, including emails.” (Reply 3:22-24.)

Given that Metro’s opposition and separate statement does not address the “this is a partial production” representation, the court is inclined to compel a further response. Metro’s separate statement for this category of documents appears to conflict with the statement in its motion it has fully produced documents for this category. If Metro had fully produced Category 2 documents, it would not have advised Petitioner’s counsel on “February 6, Metro is currently working on its next production of documents, which will include the remaining documents Metro has agreed to produce in response to RPD#2 . . . .” (Metro Sep. Stmt. 17:12-14.) Metro’s separate statement response suggests Petitioner is correct—more communications—other than merely two emails—exist for production pursuant to Category 2.[1]

Third, as to Category 3, Petitioner contends Metro has improperly unilaterally narrowed the scope of the RFPs and any limited production made (RFPs 26 and 32) is incomplete for that reason.[2] To the extent, Metro has objected to the Category 3 RFPs, the boilerplate objections are overruled.

The documents are relevant because they relate to Metro’s design criteria, the basis of Petitioner’s identified duty under Code of Civil Procedure section 1085. Information related to Metro’s approval of the criteria (RFP 26), how Metro interprets the criteria (RFP 32), how the city and Metro interpret its 2003 agreement related to design (RFP 38), how the 2003 agreement might apply here (RFP 39), Metro’s interpretation of ZI No. 1117 (RFP 40) and the interpretation of a 2018 design manual (RFP 42) are all reasonably calculated to lead to the discovery of admissible evidence in this writ proceeding. The applicability and interpretation of various design criteria as well as ZI No. 1117 is directly related to Petitioner’s claims in this proceeding.

Metro has not submitted any evidence to support its claim of overbreadth, burden, oppression, vagueness, ambiguity or an intent to harass for Category 3 documents. (See generally Antoniou Decl.) There is also nothing unclear about the RFPs, and Metro does not argue as much except for its conclusion in its separate statement. Finally, in this early discovery, nothing about the RFPs seeks “premature disclosure of expert witness opinions.” (Metro Sep. Stmt. 18:10.)

To the extent Metro contends certain responsive documents are privileged (attorney/client, work product, or otherwise privileged), Metro shall provide a privilege log. (See Code Civ. Proc., § 2031.240, subd. (c)(1).)

The court finds Petitioner has established good cause to compel a response and further response to the RFPs contained in Category 3. That is, to the extent Metro has produced any responsive documents and has done so after limiting the scope of the RFP, Metro is ordered to supplement its prior production consistent with the scope of the RFP as drafted by Petitioner. Metro shall also provide a response to the RFPs to which it has not responded.

Finally, Category 4—RFP 47—seeks documents “related to any Metro proposal or concept for a future Metro transit project that would utilize” Petitioner’s property. Petitioner explains the material sought is relevant and will assist it in the evaluation of its claims. Petitioner reports responsive documents may reveal Metro did not consider Petitioner’s project when designing the station, or why it elected to move the station directly next to Petitioner’s project. The documents also may provide information about any efforts by Metro to delay Petitioner’s project.

Metro raises boilerplate objections to RFP 47 that are identical to those it asserted as to the Category 3 RFPs. Again, for its “overbroad, burdensome, oppressive, vague, ambiguous, and intended to harass” objections, Metro provides no evidence. (See generally Antoniou Decl.) Accordingly, the objections are overruled. Further, in this early discovery, nothing about the RFPs seeks “premature disclosure of expert witness opinions.” (Metro Sep. Stmt. 28:19.)

As to relevance, Metro argues: “The Motion’s contention is without basis, since it is seeking a writ to order Metro to take certain, nondiscretionary actions as to the design and construction of the Westwood-UCLA Station. If, assuming arguendo, Metro is ordered to take certain, nondiscretionary action, Metro’s intention is irrelevant to that determination, and therefore will not lead to the discovery of admissible evidence.” (Opposition 7:26-8:2.)

Petitioner argues a response to RFP 47 would “assist Petitioner in developing its claims that Metro did not comply with its mandatory duty to design the Station to withstand the well-defined load from Petitioner’s project.” (Reply 9:4-5.) Petitioner also posits responsive documents may “shed light on Metro’s reasoning for its Station design and construction decisions may also lead to admissible evidence relating to how Metro designed the Station and whether it complied with mandatory requirements in doing so.” (Reply 9:7-9.)

While the issue in traditional mandate is a mandatory duty and compliance therewith, Metro’s discretionary decision-making process concerning design issues may be directly relevant to whether Metro complied with its mandatory duty. Its decision making may inform on how, if at all, Metro interprets its mandatory duty. In the context of discovery, Petitioner has demonstrated good cause to compel a response to RFP 47.

Again, to the extent Metro contends certain responsive documents are privileged (attorney/client, work product, or otherwise privileged), Metro shall provide a privilege log. (See Code Civ. Proc., § 2031.240, subd. (c)(1).)

Based on the foregoing, the motion is granted. Metro shall produce response and/or further responses as described herein. Metro shall do so by April ___, 2023.

If a motion to compel further responses and motion to compel compliance with demand are filed, the court “shall” impose a monetary sanction against the losing party unless it finds that party made or opposed the motion “with substantial justification” or other reasons make the sanction “unjust.” (Code Civ. Proc., § 2031.310, subd. (h); Code Civ. Proc., § 2031.320, subd. (b).)

As to Category 4 documents—RFP 47—the court finds Metro acted with substantial justification when it opposed Petitioner’s motion. The court agrees that Metro’s intention as to design is irrelevant in the context of a mandatory duty. That is, Metro either complied with its mandatory duty or it did not—Metro’s intentions are therefore irrelevant as to whether a writ should issue. As noted, however, Metro discounted the notion that Metro’s intentions may, in fact, reveal whether it complied with its mandatory duty. The discovery sought may inform on whether Metro complied with its duty.

In large part, as to the remaining documents, Metro agreed to produce them. Metro claims—in the context of its protracted meet and confer discussions with Petitioner—it did not anticipate Petitioner’s motion. Metro suggests motion practice would have altogether been avoided had it understood Petitioner intended to proceed with a motion. Metro’s concession and agreement to produce the documents as well as its belief the production will then be complete does not, as a practical matter, constitute opposition to the motion.

Finally, as to the Category 2 documents, Metro opposed the motion with the understanding it had provided a complete response to the request by the time Petitioner filed the motion. Metro’s attorney who had been handling the discovery left the law firm representing Metro in this matter. The court’s order herein is largely based on the attorney’s statement Metro was providing a partial distribution. Whether the attorney erred in that assessment, as apparently claimed today, is not entirely clear. The court ordered further production based on the conflicting facts. Under the circumstances, it would be unjust to order sanctions.

Based on the foregoing, the motions to compel compliance and further responses are GRANTED. The request for monetary sanctions is DENIED.

[1] The category relates to decisions made for the construction of its station—not to use tiebacks for excavation support, use of struts for excavation support, communications related to engineering studies and the interpretation of Metro’s design guidelines. Given the scope of the project, it strains credulity that only two email communications exist about these topics.

[2] Metro asserts its production of RFPs 26 and 32 is complete. (Opposition 1:24.) As with Category 2, Metro’s separate statement suggests otherwise. (Metro Sep. Stmt. 20:21-22 [“will produce relevant, responsive and non-privileged documents in its possession”].)