Judge: Peter A. Hernandez, Case: 22PSCV02678, Date: 2023-08-18 Tentative Ruling

Case Number: 22PSCV02678    Hearing Date: August 18, 2023    Dept: K

Background   

Plaintiff Lynford Hartley Ellingson (“Plaintiff”) alleges as follows: Plaintiff sustained injuries in a May 29, 2021 motor vehicle accident.

On December 9, 2022, Plaintiff filed a complaint, asserting causes of action against Defendants Omar Valentin Campos Sandoval (“Sandoval”), Metro Deliveries and Logistics LLC (“Metro”) and Does 1-50 for:

1.                  Motor Vehicle

2.                  General Negligence

On April 12, 2023, Plaintiff filed an “Amendment to Complaint,” wherein Amazon.com, Inc. was named in lieu of Doe 1. On April 13, 2023, Plaintiff filed three “Amendment[s] to Complaint,” wherein Amazon.com Logistics, Inc. was named in lieu of Doe 2, Amazon.com, LLC was named in lieu of Doe 3 and Amazon.com, Services, LLC was named in lieu of Doe 4.

On May 24, 2023, Plaintiff filed an “Amendment to Complaint,” wherein Amazon Logistics, Inc. (“ALI”) was named in lieu of Doe 5. On June 8, 2023, Plaintiff dismissed ALI, without prejudice.

On June 26, 2023, Plaintiff filed three “Amendment[s] to Complaint,” wherein Amazon Transportation Services, LLC was named in lieu of Doe 6, Amazon Data Services, Inc. was named in lieu of Doe 7 and Amazon Web Services Inc. was named in lieu of Doe 8.

A Case Management Conference is set for August 18, 2023.

Legal Standard

“[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.4^th 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

Plaintiff moves the court for an order compelling Metro to serve further responses to Plaintiff’s Requests for Production of Documents, Set Two (i.e., Nos. 18, 19, 29, 33-36, 43, 45, 47-50 and 53). Plaintiff also seeks sanctions against Metro in the amount of $4,260.00.

Plaintiff’s counsel David Yerushalmi (“Yerushalmi”) represents as follows:

On April 17, 2023, Plaintiff served the subject discovery. (Yerushalmi Decl., ¶ 4, Exh. 1.) After requesting and obtaining an extension of time, Metro served unverified responses thereto on May 31, 2023. (Id., ¶¶ 5-7, Exhs. 2-4.) On June 5, 2023, Metro provided its verification. (Id., ¶ 10, Exh. 7.) On June 5, 2023, Yerushalmi sent Metro’s counsel Cynthia Pham (“Pham”) a meet and confer letter, requesting further responses by June 15, 2023. (Id., ¶ 11, Exh. 8.) On the afternoon of June 14, 2023, Pham emailed Yerushalmi and requested a telephonic conference on a certain date and time (which conflicted with Yerushalmi’s schedule) to discuss a proposed stipulated confidentiality agreement as well as the meet and confer letter. (Id., ¶¶ 12 and 13, Exhs. 9 and 10.) Counsel thereafter exchanged communications disagreeing about whether there was any purported requirement under the Code to telephonically meet and confer. (Id., ¶¶ 13-17, Exhs. 11-14). Yerushalmi then granted Pham an additional week to respond to the June 5, 2023 meet and confer letter. (Id., ¶ 18). On June 22, 2023, Metro provided supplemental responses. (Id., ¶ 19, Exh. 15). The instant motion followed on June 26, 2023.

It does not appear to the court that any further meet and confer efforts transpired between June 22, 2023 (i.e., when Metro provided supplemental responses) and June 26, 2023 (i.e., when the motion was filed). Pham has attached a June 22, 2023 email from Yerushalmi wherein Yerushalmi states “Many of these discovery responses continue to be insufficient. We are filing a motion with The Court. I would like to keep the motion as narrow as possible. Specifically, items including but not limited to the snapshots of Mr. Sandoval's performance, Fico Score, Mentor App Score, and ID are ineligible because they are not in their original format. I cannot read the dates, and when I zoom in, they are pixelated. Can you provide me with the correct digitized version by tomorrow at 5 PM so that I can leave this out of my motion?” (Pham Decl., ¶ 19, Exh. E [emphasis added]). The court believes that the foregoing communication from Yerushalmi does not constitute an adequate meet and confer with respect to the sufficiency of Metro’s supplemental responses, as it does not provide Metro with information as to which requests allegedly remain deficient and how so.

Regardless, no further response is warranted with respect to No. 18. Metro has advised that Exhibit A Supp. “consist[s] of the entirety of Mr. Sandoval’s personnel file,” which is compliant with Code of Civil Procedure § 2031.220[1]; as Metro states, “[w]hether Plaintiff believes the produced documents is or is not a ‘standard personnel file’ is not a legal basis for his motion to RFP responses.” (Opp. Sep. State., 3:27-4:1).

No further response is warranted as to No. 19. Metro has provided a response that is compliant with Code of Civil Procedure § 2031.230.[2]

No further responses are warranted as to Nos. 29, 33-36, inasmuch as Metro’s supplemental responses thereto are compliant with the above Code sections.

A further response, however, is warranted as to No. 48, inasmuch as Metro’s supplemental response is not compliant with section 2031.230.

The remaining requests (i.e., Nos. 43, 45, 47, 49, 50 and 53) relate to any contractual agreements Metro had with Amazon entities. Pham has explained that “Amazon”[3] was added to the lawsuit on April 12, 2023, that it filed an answer on May 22, 2023, that its counsel sent a proposed confidentiality agreement to all counsel on June 5, 2023 and that Metro was instructed by “Amazon’s” counsel not to produce its contractual agreement between Metro and “Amazon” without a protective order in place. (Id., ¶¶ 5, 8, 11 and 12). Metro’s supplemental response to the aforesaid requests states that it will produce responsive documents within its possession, custody, and control upon execution of a protective order.

Metro’s unwillingness to produce documents in response to Nos. 43, 45, 47, 49, 50 and 53 absent authorization from Amazon is understandable. Plaintiff overskirts the fact that the proposed stipulated confidentiality agreement (Yerushalmi Decl., ¶ 12, Exh. 9) was drafted by Asir Fiola (“Fiola”), counsel for Amazon.com, Inc. and Amazon.com Services, LLC; it was not drafted by Pham.

The court is inclined to continue the hearing in this regard to September 21, 2023 at 9:00 a.m. The court will also continue the Case Management Conference and Motion for Protective Order to the same date and time.

Counsel is instructed, in the interim, to engage in a good faith meet and confer with counsel for Amazon.com, Inc. and Amazon.com Services, LLC relative to the issue of the proposed stipulated confidentiality agreement. It is unclear to the court why the LASC model protective order would not adequately address Amazon’s concerns and whether or not Plaintiff’s counsel would be willing to enter into same. Counsel are to prepare a joint status report, due no later than nine court days prior to the continued hearing date, advising the court as to the specific meet and confer efforts made and the outcome.

The court declines Plaintiff’s request for sanctions.