Judge Peter A. Hernandez, Case 19STCV33906 2022-08-23 Tentative Ruling

2. Defendants Altman Specialty Plants, LLC’s and Florentino Rico’s Motion to Compel Further Supplemental Responses to Requests for Admission and Corresponding 17.1 Form Interrogatories is GRANTED. Plaintiff to provide further, substantive responses within 20 days from the date of the hearing. Sanctions are awarded in the reduced amount of $742.50 and payable within 30 days from the date of the hearing.

Plaintiff Fadi Almazahreh (“Plaintiff”) alleges that he sustained injuries in a February 20, 20219 motor vehicle accident.

On September 24, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Florentino Rico (“Rico”), Altman Specialty Plants, LLC (“Altman”) (collectively, “Defendants”) and Does 1-20 for:

On September 11, 2020, this case was transferred from Department 32 of the Personal Injury Court to this instant department.

On October 29, 2021, the court granted Plaintiff’s motion for summary adjudication of Defendants’ eighteenth affirmative defense.

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (a) The court may impose a monetary sanction . . . (b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. . . (c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (d) The court may impose a terminating sanction by one of the following orders: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. (2) An order staying further proceedings by that party until an order for discovery is obeyed. (3) An order dismissing the action, or any part of the action, of that party. (4) An order rendering a judgment by default against that party. . .” (Code Civ. Proc., § 2023.030.)

Plaintiff moves the court for an order granting terminating sanctions or, in the alternative, granting issue, evidence and or/monetary sanctions against Defendants.

Plaintiff’s motion is not accompanied by a California Rules of Court (“CRC”) Rule 3.1345 separate statement (i.e., “[A]ny motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: . . . (7) For issue or evidentiary sanctions” [emphasis added]).

Plaintiff’s alternative request for issue or evidentiary sanctions, then, is summarily denied.

“Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation. . . While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions. A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223 [citations omitted].)

“[A] party moving for discovery sanctions based on the spoliation of evidence must make an initial prima facie showing that the responding party in fact destroyed evidence that had a substantial probability of damaging the moving party's ability to establish an essential element of his claim or defense.” (Id. at 1227.) Once the moving party establishes the aforesaid prima facie showing, the burden then shifts to the responding party to disprove prejudice. (Id.)

Plaintiff seeks the aforementioned sanctions on the basis that Plaintiff sent Rico a timely preservation of evidence letter for any Electronic Control Module (“ECM”) data for Defendants’ vehicle; that Defendants asserted multiple times that its 2019 Kenworth Box Truck (“the box truck”) did not have an ECM; that, at a later vehicle inspection, Plaintiff’s expert discovered that the box truck had an ECM; that, upon discovering the ECM, Plaintiff’s expert attempted to download the data but was prevented by Defendants’ counsel from doing so and that Defendants then failed to preserve the data on the ECM device.

Plaintiff has not shown that the destruction of the ECM had a “substantial probability of damaging the moving party's ability to establish an essential element of his claim or defense.” Plaintiff has alleged that, on or about February 20, 2019, he was in his vehicle traveling southbound on Lone Hill Avenue in Glendale, that Rico was in the box truck traveling northbound on Lone Hill Avenue, that Rico made a u-turn at a green traffic signal that was controlled by a no u-turn sign, that Rico was unable to complete his u-turn and that, as Rico was backing up, Plaintiff collided with the rear of the box truck. (Complaint, ¶¶ 13-15.)

Plaintiff asserts that the destruction of the ECM data damaged Plaintiff’s ability to prove damages and causation. This statement, however, is unsupported. The declaration submitted by Plaintiff’s expert Michael Segura (“Segura”) explains that three types of event data may be available on an ECM, including last stop record, hard brake record (sudden deceleration) and fault codes (diagnostic trouble codes). (Segura Decl., ¶ 2.) Segura, however, fails to explain what constitutes a “sudden deceleration” sufficient to be recorded on an ECM. Plaintiff has failed to present any evidence that the subject accident would have yielded any data on the ECM recording device in the first instance.

2. Motion to Compel Furthers Re: Requests for Admission and Form Interrogatories

“[T]he propounding party may move for an order compelling a further response if the propounding party deems that . . . (1) An answer to a particular interrogatory is evasive or incomplete[,] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[, and/or] (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2030.300, subd. (b)(1).) “In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2030.300, subd. (b)(2).)

Notice of the motion must be provided “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 propounding party and the responding party have agreed in writing. . .” (Code Civ. Proc., § 2030.300, subd. (c).) The responding party has the burden of justifying the objections to the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

“The court shall impose a monetary sanction. . . 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.” (Code Civ. Proc., § 2030.300, subd. (d).)

“[T]he party requesting admissions may move for an order compelling a further response if that party deems that . . . (1) An answer to a particular request is evasive or incomplete [and/or] (2) An objection to a particular request is without merit or too general.” (Code Civ. Proc., § 2033.290, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2033.290, subd. (b)(1).) “In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2033.290, subd. (b)(2).)

Notice of the motion must be provided “within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing . . .” (Code Civ. Proc., § 2030.300, subd. (c).) The responding party has the burden of justifying the objections to the requests. (Coy, supra, 58 Cal.2d at 220-221.)

“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response, 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.” (Code Civ. Proc., § 2033.290, subd. (d).)

Defendants move the court for an order compelling Plaintiff to provide further verified and substantive supplemental discovery responses to Defendants’ Requests for Admission, Set No. 2 (i.e., Nos. 53-55) and Form Interrogatories, Set No. 2 (i.e., No. 17.1 as to Requests for Admissions Nos. 53-55, 58, 65-69, 72-74 and 128-131.) Defendants also seek sanctions in the amount of $1,815.00 against Plaintiff and/or his attorneys of record.

On February 25, 2022, Defendants propounded their Requests for Admission, Set No. 2. (Housman Decl., ¶ 3, Exh. 3.) On February 28, 2022, Defendants propounded their Form Interrogatories, Set No. Two. (Id., ¶ 3, Exh. 4.) After receiving an extension to April 18, 2022 to respond to the aforesaid discovery, Plaintiff provided unverified responses. (Id., ¶ 4.) On June 23, 2022, Plaintiff served further responses. (Id., ¶ 7.) On July 5, 2022, Defendants’ counsel sent Plaintiff’s counsel a meet and confer letter outlining perceived deficiencies behind Plaintiffs Requests for Admissions Nos. 53-55, 57-58, 64-69, 72-74, 85, 86, 100, 114, 128-131 and corresponding 17.0 Form Interrogatories. (Id., ¶ 9.) On July 8, 2022, Plaintiff’s counsel advised that verified second further responses would be provided by July 12, 2022. (Id., ¶ 10.) On July 12, 2022, Plaintiff served its second further responses, which were not verified. (Id., ¶ 11, Exhs. 1 and 2.) This motion followed.

The court is advised that Plaintiff provided verifications to his second further responses subsequent to the filing of the motion.

No. 53 asks Plaintiff to admit that he has been involved in at least one other motor vehicle collision since the accident. No. 54 asks Plaintiff to admit that he was involved in a motor vehicle collision in approximately June of 2021. No. 55 asks Plaintiff to admit that he was driving his sister, Sage Batool’s, car when the June 2021 motor vehicle collision occurred.

Although Plaintiff, after interposing objections[1], provided substantive responses to each of the aforesaid requests in their second further responses, said substantive responses are deficient. Plaintiff, for instance, responded to No. 53 with the response, “[a]dmit that Plaintiff has been involved in one accident that he was not injured in since the collision.” Plaintiff responded to No. 54 with the response, “[a]dmit that he was not injured in the collision that occurred in June 2021.” These responses do not answer the call of the questions. Plaintiff responded to No. 55 with the response, “[a]dmit that Plaintiff was not the registered owner of any of the vehicles involved in the June 2021 incident.” Again, this response does not answer the call of the question which does not ask Plaintiff to identify whether he was the registered owner of any of the vehicles involved in the June 2021 incident. Further substantive responses are warranted.

Plaintiff’s objections to No. 17.1 are not well-taken; at any rate, it does not appear that Plaintiff has attempted to justify the propriety of same. No. 17.1 first asks a responding party whether his/her response to each request for admission served with the interrogatories is an unqualified admission and, for each response that is not, to state the number of the request, the facts upon which the responding party bases his/her response, and to identify persons and documents supporting his/her response.

Plaintiff fails to address Request for Admissions Nos. 53-55 anywhere in his substantive response. Additionally, the substantive response provided by Plaintiff does nothing to identify facts, witnesses and documents that support Plaintiff’s denial of Request for Admission Nos. 65-69 (i.e., asking Plaintiff to admit that he injured his right leg, right knee, right hip, right foot and left shoulder, respectively, as a result of the June 2021 motor vehicle collision), 72-74 (i.e., asking Plaintiff to admit that he experienced neck pain, headaches and back pain, respectively, as a result of the June 2021 motor vehicle collision), 128-129 (i.e., asking Plaintiff to admit that as a result of the accident he did not undergo any mental health therapy with a psychologist or psychiatric treatment with a psychiatrist prior to 2021, respectively) and 130-131 (i.e., asking Plaintiff to admit that he has not incurred any medical bills as a result of receiving psychiatric treatment or medical bills as a result of receiving psychological therapy treatment, respectively, from February 20, 2019 to the present) and inability to admit or deny Request for Admission No. 58 (i.e., asking Plaintiff to admit that the other vehicle in the June 2021 motor vehicle collision sustained damage). A further, substantive response is thus warranted in this regard.

The motion is granted. Plaintiff to provide further, substantive responses within 20 days from the date of the hearing.

Defendants seek sanctions against Plaintiff and/or his attorneys of record in the amount of $1,815.00 [calculated as follows: 4.5 hours preparing motion, plus 1.5 hours preparing separate statement, plus 0.5 hours reviewing opposition, plus 1.5 hours preparing reply and 1 hour attending hearing at $195.00/hour, plus $60.00 filing fee].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $742.50 (i.e., 3.5 hours at $195.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days from the date of the hearing.

[1] Incidentally, Plaintiff’s objections that the aforesaid requests sought irrelevant information and were “vague, ambiguous, and overbroad in both time and scope” are not well-taken. Whether Plaintiff was involved in another motor vehicle collision after the subject accident is relevant to Plaintiff’s damages claims and whether all of his current physical complaints are attributable to the subject accident. The requests are limited in scope and time and are straightforward. Plaintiff, moreover, does not appear to justify the propriety of its objections. Plaintiff’s sole reliance on Downing v. Barrett Mobile Home Transp., Inc. (1974) 38 Cal.App.3d 519 [i.e., “Generally, evidence that a litigant was involved in a prior accident is inadmissible when its only purported relevance is to show a propensity for negligent acts, thus enhancing the probability of negligence on the occasion in suit”] is misplaced inasmuch as this case does not involve a prior accident, but only a subsequent one.