Judge: Peter A. Hernandez, Case: 22PSCV01799, Date: 2024-01-09 Tentative Ruling
Case Number: 22PSCV01799 Hearing Date: January 9, 2024 Dept: K
1. Defendant County of Los
Angeles’ Motion to Compel Further Responses and to Compel Production to
Requests for Production (Set One) is GRANTED. Plaintiff is to provide further, Code-compliant responses within 20 days
from the date of the notice of ruling. Sanctions are awarded in the amount of
$1,500.00 and are payable within 30 days of the date of the hearing.
2. Defendant County of Los Angeles’ Motion to Compel Further Responses to Form Interrogatories (Set One) is GRANTED. Plaintiff is to provide further, Code-compliant responses to Interrogatories Nos. 2.6, 2.7, 2.13, 6.5, 8.1-8.8., 10.1, 10.2, 20.2, 20.3, 20.4 and 20.11 within 20 days from the date of the notice of ruling. Sanctions are awarded in the amount of $2,000.00 and are payable within 30 days of the date of the hearing.
Background
On November 14, 2022, Plaintiff filed a complaint, asserting causes of action against County of Los Angeles (“County”), Marco, Inc. (“Marco”), Sean Phillip Heckers and Does 1-10 for:
1.
General Negligence
2.
Premises Liability
On March 29, 2023, Marco’s
default was entered.
A Case Management Conference is set for January 9, 2024.
1. Motion to Compel Compliance/Furthers Re: Requests for Production
Legal Standard
Motion to Compel Compliance
“If a party filing a response to a demand for inspection, copying, testing or sampling . . . 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).) There is no meet and confer requirement. The court must impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, 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., § 2031.320, subd. (b).)
Motion to Compel Furthers
“[T]he demanding party may move for an order compelling further response to the demand if the demanding party deems that. . . (1) A statement of compliance with the demand is incomplete[,] (2) A representation of inability to comply is inadequate, incomplete, or evasive [and/or] (3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, 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, 2031.310, subd. (b)(2).) “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., § 2031.310, subd. (b)(3).)
A motion to compel further responses to a demand for inspection or production of documents must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) If the moving party has shown good cause for the production of documents, the burden is on the objecting party to justify the objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)
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 demanding party and the responding party have agreed in writing . . .” (Code Civ. Proc., § 2030.310, subd. (c).)
“[T]he court shall impose a monetary sanction. . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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., § 2031.310, subd. (h).)
Discussion
County moves the court for orders (1) compelling Plaintiff to provide further responses to County’s Requests for Production, Set One (i.e., Nos. 10-12) and (2) compelling Plaintiff’s compliance to produce documents with respect to the aforementioned requests. County also moves the court for an order requiring Plaintiff to pay sanctions in the amount of $1,500.00.
Request No. 10 seeks all medical records concerning any examination, consultation, or treatment of any injuries, complaints, or conditions similar or relating to injuries Plaintiff alleges to have suffered as a result of the accident.
Plaintiff, in his original response to Request No. 10, did not assert any objections and agreed to produce “any/all non-privileged responsive documents in [his] possession, custody or control.” Plaintiff subsequently provided a supplemental response, wherein he asserted untimely objections before stating, in relevant part, that: “After a diligent search and reasonable inquiry, see all documents in the possession, custody and control of Responding Party responsive of this request as Exhibit ‘3.””
Plaintiff represents that, subsequent to the filing of the instant motion (i.e., on December 4, 2023 and again on December 26, 2023), he served supplemental responses to Request No. 10, wherein he identified custodians of records for “all other records” not in his possession, custody and control. (Petrosian Decl., ¶¶ 18 and 22, Exhs. J and K). The custodian of records identified are as follows: Village Glen West, 12095 Washington Blvd., Los Angeles, CA 90066 (877) 943-5747; The Help Group, 13130 Burbank Blvd., Sherman Oaks, CA 91401 (818) 781-0360 and PIH Health Hospital, 11500 Brookshire Avenue, Downey, CA 90241 (562) 904-5000. Plaintiff also represents that he has “effective[ly] waive[d]” his psychiatric, psychological and/or mental health damages claims via a “Notice of Plaintiff’s Withdraw[a]l of Psychiatric and Mental Health Damages” and his December 26, 2023 supplemental responses. (Id., ¶¶ 17 and 18, Exhs. I and J).
County, however, complains that Plaintiff has still failed to completely identify, or produce a single page of, pre-incident treatment concerning the same body parts and conditions that he claims were injured from the accident and that it is aware of at least nine such unidentified providers. This is disturbing to the court, to say the least.
County also complains that Plaintiff’s purported withdrawal of claims is limited to “claims for psychiatric, clinical mental health, and clinical type psychological claims” which “focuses on claims for any creation or exacerbation of any psychiatric/psychological mental health conditions of disorders (i.e., clinical anxiety, depression, PTSD, etc.” and that Plaintiff expressly maintains his right to recover for “Garden-Variety Emotional Distress, pain and suffering, mental anguish, disfigurement, physical impairment, physical pain, loss of enjoyment of life stemming from the physical injury, humiliation, and all others allowed by California law.” (Id., ¶ 17, Exh. I).
Based on the foregoing, Plaintiff has failed
to provide a full and complete response to Request No. 10. At a minimum, it is
evident that Plaintiff has not identified “the name[s] and address[es] 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).
Additionally, as Plaintiff’s purported withdrawal of psychological injury claims is qualified, County is entitled to any records in Plaintiff’s possession, custody or control (or, to the extent they are not in his possession, custody, or control, in the possession, custody or control of identified persons or organizations) pertaining to his complaints relating to his head, headaches. anxiety, depression, issues with sleep, appetite, energy, mood, and loss of enjoyment of life. (See Kim Decl., ¶ 5 5, Exh. D, 6.2, 6.3 and 9.1 [FROG Motion]; Supp. Kim Decl., ¶ 18). The motion is granted as to Request No. 10. Plaintiff’s further response must be made without objection and without qualification.
Request No. 11 seeks all documents substantiating any claim for loss of earnings or loss of earning capacity (not tax returns), including W-2 forms for the year in which the accident occurred, and the 5 years before and the year after the accident.
Request No. 12 seeks all documents reflecting Plaintiff’s earnings (other than tax returns) during the 5 years before the accident through the present.
Plaintiff, in his original response to Request Nos. 11 and 12, did not assert any objections and advised that he had no such documents in his possession, custody or control and did not know if such documents even existed. Plaintiff subsequently provided supplemental responses, wherein he asserted untimely objections before stating, in relevant part, that “After a diligent search and reasonable inquiry, there are no such documents in the possession, custody and control of Responding Party responsive of this request as no claim for wage loss is being made.” (Petrosian Decl., ¶ 22, Exh. K).
Plaintiff represents that he served supplemental responses subsequent to the filing of the instant motion. Plaintiff only supplemented Request No. 11 on December 4, 2023; no supplemental response to Request No. 12 was provided. Plaintiff’s December 4, 2023 supplemental response to Request No. 11 advised that there were no responsive documents in his possession, custody and control “as no claim for wage loss or future earning capacity is being made.” (Petrosian Decl., ¶ 22, Exh. K). The motion is granted as to Request Nos. 11 and 12. Plaintiff’s further responses must be made without objection and without qualification.
Plaintiff is to provide further, Code-compliant responses to Requests Nos. 10-12 within 20 days from the date of the notice of ruling.
Sanctions
County seeks sanctions against Plaintiff in the amount of $1,500.00 [calculated as follows: 4 hours preparing motion, plus 1 hour preparing reply, plus 1 hour attending hearing at $250.00/hour].
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 $1,500.00. Sanctions are imposed against Plaintiff and are payable within 30 days of the date of the hearing.
2. Motion to Compel Furthers Re: Form Interrogatories
Legal Standard
“[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).)
Discussion
County moves the court for an order compelling Plaintiff to provide further responses to County’s Form Interrogatories—General, Set One (i.e., Nos. 2.6, 2.7, 2.13, 6.5, 8.1-8.8., 10.1, 10.2, 20.2, 20.3, 20.4 and 20.11). County also moves the court for an order requiring Plaintiff to pay sanctions in the amount of $2,000.00.
The court incorporates its above analysis herein. Plaintiff’s responses to Interrogatory No. 2.6 are inconsistent, as set forth in County’s separate statement, and fail to provide address and/or other contact information. Plaintiff’s qualification of reserving a purported right to supplement Interrogatories No. 2.7, 20.3, 20.4 and 20.11“should new/additional information be ascertained” is improper. Plaintiff’s December 26, 2023 response to Interrogatory No. 2.13 contains even less information than prior versions and fails to adequately address each subpart. Further responses, without qualification, are warranted.
Plaintiff’s response to Interrogatory No. 6.5 fails to adequately address subparts (d) and (e). Any reliance by Plaintiff on Code of Civil Procedure § 2030.230, moreover, is improper because Plaintiff has not “specif[ied] the writings from which the answer may be derived or ascertained” “in sufficient detail to permit [County] to locate and to identify. . . the documents from which the answer may be ascertained.” A further, unqualified response is warranted.
As to Plaintiff’s responses to Interrogatories Nos. 8.1-8.8., County is entitled to further responses that, without qualification, withdraw his future loss of earnings claims (or, alternatively, provide complete and accurate information regarding same).
Plaintiff’s responses to Interrogatories Nos. 10.1 and 10.2 (i.e., as to Medical History) are incomplete, as identified in the Motion to Compel Further Responses Re: Requests for Production. County is entitled to further, unqualified responses.
Plaintiff’s response to Interrogatory No. 20.2 is incomplete with respect to Skip De Haan’s contact information. Plaintiff has a duty to make a reasonable and good faith effort to obtain the information responsive to the interrogatory. (Code Civ. Proc., § 2030.220). A further response is warranted.
Plaintiff is to provide further, Code-compliant responses to Interrogatories Nos. 2.6, 2.7, 2.13, 6.5, 8.1-8.8., 10.1, 10.2, 20.2, 20.3, 20.4 and 20.11 within 20 days from the date of the notice of ruling.
Sanctions
County seeks sanctions against Plaintiff in the amount of $2,000.00 [calculated as follows: 6 hours preparing motion, plus 1 hour preparing reply, plus 1 hour attending hearing at $250.00/hour].
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 $2,000.00. Sanctions are imposed against Plaintiff and are payable within 30 days of the date of the hearing.