Judge Peter A. Hernandez, Case Number: 22STCV14150, Date: 2024-08-29 Tentative Ruling

Judge: Peter A. Hernandez, Case: 22STCV14150, Date: 2024-08-29 Tentative Ruling

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Case Number: 22STCV14150 Hearing Date: August 29, 2024 Dept: 34

Big Bus Tours Los Angeles, Inc., v. Starline Tours of Hollywood, Inc. (22STCV14150)

1. Defendant Starline Tours of Hollywood, Inc.’s Motion to Compel Responses to Special Interrogatories is GRANTED IN PART as follows. Plaintiff/Cross-Defendant is ORDERED to serve responses to the RPDs within 30 days of this ruling. All discovery responses shall be limited to documents regarding vehicles the Plaintiff/Cross-Defendant (not its affiliates) use for its hop-on, hop-off route in California.

2. Defendant Starline Tours of Hollywood, Inc.’s Motion to Compel Responses to Request for Production of Documents is GRANTED IN PART as follows. Plaintiff/ Cross-Defendant is ORDERED to serve responses to all SROGs, except Nos. 53 and 54, within 30 days of this ruling. All discovery responses shall be limited to documents regarding vehicles the Plaintiff/Cross-Defendant (not its affiliates) use for its hop-on, hop-off route in California.

The parties’ respective requests for sanctions are DENIED.

Background

On April 28, 2022, plaintiff Big Bus Tours Los Angeles, Inc. (“Plaintiff”) filed its Complaint against defendant Starline Tours of Hollywood, Inc. (“Defendant”) on causes of action of (1) Common Law Unfair Competition, (2) Violation of Statutory Unfair Competition Law, (3) Intentional Interference with Prospective Economic Advantage, and (4) False Advertising.

On June 8, 2022, the Court found that cases 19STCV36480 and 22STCV14150 are related and designated Case No. 19STCV36480 as the lead case.

On October 31, 2022, the Court sustained Defendant’s Demurrer as to the Complaint’s third cause of action for intentional interference with prospective economic advantage.

On December 7, 2022, Defendant/Cross-Complainant Starline filed: (1) Answer to the Complaint; and (2) Cross-Complaint against Cross-Defendants Big Bus Tours Los Angeles, Inc., Vector Media South, LLC, Vector Media Holding Corp., Big Bus Tours, Ltd., Julia Conway, Patrick Waterman, Marc Borzykowski, Justin Steinfelder, Robert Gutierrez, Open Top Sightseeing USA, and Sprint.

On April 20, 2023, Defendant filed its First Amended Cross-Complaint.

On May 16, 2024, Defendant filed the instant motions for: (1) Motion to Compel Responses to Requests for Production of Documents, Set Three (“RPD Motion”); and (2) Motion to Compel Responses to Special Interrogatories, Set Three (“SROG Motion”). Each motion was concurrently filed with a separate statement.

On May 31, 2024, Plaintiff filed its Oppositions to the motions along with (1) separate statements and (2) declarations of Joseph Weiner.

On June 6, 2024, Defendant filed its Replies along with a Proof of Service.

Analysis

Defendant seeks an order compelling Plaintiff to respond to Defendant’s special interrogatories, and requests for production.

Law Governing Requests for Production

“Any party may obtain discovery by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” (CCP § 2031.010.) “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP § 2025.480(a).)

Code Civ. Proc. Section 2030.290 provides that when a party to whom interrogatories has been propounded fails to serve a timely response, that party waives any objection to the interrogatories; it further provides that the propounding party may move for an order compelling a response to the interrogatory. Subdivision (c) provides for monetary sanctions in connection with such motion. (CCP § 2030.290.)

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Indeed, "[o]nce [a party] 'fail[ed] to serve a timely response,' the trial court had authority to grant [opposing party's] motion to compel responses." (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.

Defendant/Cross-Complainant Starline propounded the following requests for production of documents (“RPDs”) on Plaintiff/Cross-Defendant Big Bus LA:

REQUEST FOR PRODUCTION NO. 65:

All DOCUMENTS sufficient to identify the serial number and ENGINE FAMILY NAME for every engine in each vehicle that YOU have operated since January 1, 2019.

REQUEST FOR PRODUCTION NO. 66:

All Certificates of Conformity from the United States Environmental Protection Agency, Office of Transportation and Air Quality, referring or relating to the engines for any vehicle that YOU have operated since January 1, 2019.

REQUEST FOR PRODUCTION NO. 67:

All DOCUMENTS referring to the replacement, servicing, or maintenance of the engines in any vehicle that YOU have operated since January 1, 2019.

REQUEST FOR PRODUCTION NO. 68:

All COMMUNICATIONS referring to the replacement, servicing, or maintenance of the engines in any vehicle that YOU have operated since January 1, 2019, including but not limited to COMMUNICATIONS with vehicle and engine manufacturers.

REOUEST FOR PRODUCTION NO. 69:

DOCUMENTS sufficient to identify the serial number of each Particulate Trap, if any, in any vehicle that YOU have operated since January 1, 2019.

REOUEST FOR PRODUCTION NO. 70:

All DOCUMENTS referring to YOUR replacement of the Particulate Trap, if any, in any vehicle that YOU have operated since January 1, 2019, including if such replacement occurred prior to January 1, 2019.

REOUEST FOR PRODUCTION NO. 71:

All COMMUNICATIONS referring to your replacement of the Particulate Trap, if any, in any vehicle that YOU have operated since January 1, 2019, including if such replacement occurred prior to January 1, 2019.

REOUEST FOR PRODUCTION NO.72:

All DOCUMENTS referring to the maintenance, repair, or servicing of any Particulate Trap installed in any vehicle that YOU have operated since January 1, 2019, including work orders and invoices, and including any maintenance, repairs, or servicing that occurred prior to

January 1, 2019.

REOUEST FOR PRODUCTION NO.73:

All COMMUNICATIONS referring to the maintenance, repair, or servicing of the Particulate Trap installed in any vehicle that YOU have operated since January 1, 2019, including work orders and invoices, and including any maintenance, repairs, or servicing that occurred prior to January 1, 2019.

REOUEST FOR PRODUCTION NO. 74:

All DOCUMENTS evidencing YOUR payment for the purchase, acquisition, lease, use, assignment or transfer of any vehicles to YOU that YOU have operated since January 1, 2019.

(Separate Statement re RPD Motion.)

Law Governing Special Interrogatories

Defendant also propounded the following special interrogatories (“SROGs”) on Big Bus LA:

SPECIAL INTERROGATORY NO. 40:

For each vehicle that YOU have operated since January 1, 2019, please identify the serial number for the engine in each such vehicle.

SPECIAL INTERROGATORY NO. 41:

For each vehicle that you have operated since January 1, 2019, please identify the Engine Family Name for the engine in each such vehicle.

SPECIAL INTERROGATORY NO. 42:

For each engine, if any, that YOU have replaced on any vehicle that YOU have operated since January 1, 2019, please identify the date on which such engine replacement occurred, including if such replacement occurred prior to January 1, 2019.

SPECIAL INTERROGATORY NO. 43:

For each engine, if any, that YOU have replaced on any vehicle that it has operated since January 1, 2019, please identify the serial number for the engine that was replaced, including if such replacement occurred prior to January 1, 2019.

SPECIAL INTERROGATORY NO. 44:

For each engine, if any, that YOU have replaced on any vehicle that YOU have operated since January 1, 2019, please identify the Engine Family Name for the engine that was replaced, including if such replacement occurred prior to January 1, 2019.

SPECIAL INTERROGATORY NO.45:

For each vehicle that YOU have operated since January 1, 2019, please describe in detail any steps taken to refurbish, retrofit, or modify the engines contained in such vehicles, including steps taken prior to January 1, 2019.

SPECIAL INTERROGATORY NO. 46:

For each vehicle that YOU have operated since January 1, 2019, please describe in detail any steps taken to reduce or control emissions for such vehicle(s), including steps taken prior to January 1, 2019.

SPECIAL INTERROGATORY NO. 47:

For each Particulate Trap, if any, installed in any vehicle that YOU have operated since January 1, 2019, please identify the serial number for each such Particulate Trap.

SPECIAL INTERROGATORY NO. 48:

For each Particulate Trap, if any, that YOU have replaced on any vehicle that YOU have operated since January 1, 2019, please state the date on which such replacement occurred, including if the replacement occurred prior to January 1, 2019.

SPECIAL INTERROGATORY NO. 49:

For each Particulate Trap, if any, that YOU have replaced on any vehicle that YOU have operated since January 1, 2019, please identify the serial number for each Particulate Trap that was replaced, including if such replacement occurred prior to January 1, 2019.

SPECIAL INTERROGATORY NO. 50:

Please identify all PERSONS, other than Big Bus LA and its employees, who have serviced, maintained, or repaired any vehicle that YOU have operated since January 1, 2019.

SPECIAL INTERROGATORY NO. 51:

For each PERSONS, other than BIG BUS LA and its employees, who have serviced, maintained, or repaired any vehicle that YOU have operated since January 1, 2019, please describe in detail the services, maintenances, or repairs conducted.

SPECIAL INTERROGATORY NO. 52:

Please identify all PERSONS from whom YOU have purchased or leased any vehicle that YOU have operated in California since January 1, 2019 (including if such purchase or lease occurred prior to January 1, 2019) with the corresponding vehicle license plate number.

SPECIAL INTERROGATORY NO. 53:

Please identify the purchase price for any vehicle that YOU have operated in California since January 1, 2019 with the corresponding vehicle license plate number.

SPECIAL INTERROGATORY NO. 54:

Please identify the amount YOU are paying for any lease of any vehicle YOU have operated in California since January 1, 2019 with the corresponding vehicle license plate number.

(Separate Statement re SROG Motion.)

Defendant moves the Court for an order compelling Plaintiff to provide further responses to the above-listed RPDs and SROGs, arguing the following. Plaintiff alleges that it fully complies with California’s Air Resources Board’s (“CARB”) regulations and that Defendant’s failure to comply with the same has caused Plaintiff to suffer millions of dollars. Given those allegations, Plaintiff propounded discovery on Defendant, asking the latter to demonstrate its compliance with CARB for each vehicle in its fleet. Defendant complied by, among other things, producing relevant documents. Subsequently, Defendant propounded the above RPDs and SROGs, which mirror Plaintiff’s discovery; the discovery requests ask Plaintiff to produce documents and provide information supporting its allegation that it is CARB-compliant. Plaintiff failed to comply, serving only boilerplate objections to the RPDs and SROGs and refusing to produce documents. Plaintiff argues (among other things) that the RPDs seek privileged information. However, it has not served any privilege log. In addition, to the extent it is concerned that the RPDs seek confidential information, there is a protective order in this case that allows Plaintiff to mark responsive documents as Confidential or Highly Confidential if need be. Therefore, the Court should order Plaintiff to provide further responses to the SROGs and RPDs, withdraw its objections, produce a privilege log, and pay total sanctions of $2,970 against Defendant ($1,485 per motion).

In its Oppositions, Plaintiff makes the following arguments (not necessarily in the order or manner they appear in those papers), amongst others.

First, Defendant failed to meet and confer in good faith. On April 30, 2024 (the day after Plaintiff LA served its responses and objections to the SROGs and RPDs), Defendant emailed a letter to Plaintiff demanding “code-compliant supplemental responses” by May 3, 2024 (i.e., within just three days). However, the primary attorney handling Plaintiff’s discovery matters was out of the office when Defendant sent that email on April 30, 2024. Despite being aware of that fact, Defendant’s counsel never followed up regarding its email sent on April 30, 2024, and instead chose to file the motion on May 16, 2024, approximately a month before the motion’s deadline.

Second, Defendant has not shown good cause to compel further response to the discovery requests. Indeed, Defendant has never alleged that Plaintiff failed to comply with the CARB in any pleading (i.e., its Answer, Cross-Complaint, and Amended Cross-Complaint). Further, as Defendant’s discovery has shown, it is not operating vehicles with model year engines from 2010 or later. Thus, the only means for Defendant to comply with CARB would be to retrofit its old engines. Therefore, in April 2023, Plaintiff served discovery demands on Defendant, targeting technical information concerning efforts by Defendant (if any) to retrofit its engines. In short, Plaintiff wanted to know whether Defendant’s engines could be modified. Here, Plaintiff operates a fleet of new-model, post-2010 vehicles that require no retrofitting to be CARB-compliant. Therefore, Defendant has not shown good cause why it needs the same information from Plaintiff.

Third, Defendant’s discovery does not exactly “mirror” Plaintiff’s requests. Defendant subtly modified the latter, rendering its requests overbroad, unduly burdensome, and ambiguous. Specifically, Plaintiff had limited its discovery requests to information concerning the vehicles that Defendant “operated on a hop-on, hop-off route in California.” On the other hand, Defendant removed that limitation from its discovery requests, demanding information for all Plaintiff’s vehicles. By removing the “hop-on, hop-off tours in California” limitation and then defining “Big Bus” to include “its officers, directors, shareholders, affiliates, directors, agents, representatives, consultants, accountants, attorneys or anyone acting on its behalf, “Defendant expanded the scope of the discovery requests beyond what could be possibly relevant in this litigation.

Fourth, the Court should impose monetary sanctions against Defendant for bringing the meritless motions instead of vice versa.

In its Replies, Defendant argues the following, among other things. The discovery requests seek relevant information because, contrary to Plaintiff’s argument, the Plaintiff’s compliance with CARB is at issue. In its Answer to the Complaint, Defendant has generally denied all of the plaintiff’s claims and asserted affirmative defenses of unclean hands, estoppel, and laches. In addition, to have standing and prevail on its Unfair Competition Law claim, Plaintiff must prove it fully complied with CARB and that Defendant’s noncompliance has caused its damages. Plaintiff has not provided any information or documents demonstrating its alleged CARB compliance. Plaintiff has produced only a handful of DMV documents related to some of its buses for some of the years from 2019 to the present. Those documents are insufficient. Plaintiff’s meet and confer argument is meritless given that Defendant sent its meet and confer letter to Plaintiff on April 30, 2024, and never received a response. Sanctions are warranted because Plaintiff has not acted with substantial justification in opposing the motions.

Discussion

The Court finds all requests seek relevant information except for SROG Nos. 53 and 54. The former asks Plaintiff to identify the “purchase price” of its vehicles, and No. 54 asks Plaintiff to identify “the amount” it is paying for any lease of its vehicles. Defendant has not shown why that information is relevant. Accordingly, the request to compel further response to SROG Nos. 53 and 54 is denied.

The other discovery requests relevant information, given that Defendant disputes Plaintiff claim that the latter is fully CARB-compliant. Further, the Complaint places the comparison of the parties’ CARB compliance at issue by alleging the following: “By refusing to comply with CARB, Defendant saves on the substantial associated costs, which allows it (among other things) to offer lower prices on its tours. This puts Plaintiff at a substantial competitive disadvantage.” (Compl., ¶ 50.) By making those allegations and propounding discovery seeking the same information as the discovery above, Plaintiff has shown the information requested by Defendant is relevant to show CARB compliance. Plaintiff’s argument that the Court should not compel further responses to the discovery requests because the plaintiff only operates “new-model, post-2010 vehicles” that do not require “retrofitting” to be CARB-compliant is unpersuasive. Indeed, to the extent Plaintiff is implying some SROGs and RPDs seek information that does not exist, the plaintiff can simply say so in its supplemental responses. (See Code Civ. Proc., §§ 2031.230 [stating that a representation of inability to comply with a particular demand for inspection “shall … specify whether the inability to comply is because the particular item or category has never existed, … has never been ….”]; 2030.220, subd. (b) [“If an interrogatory cannot be answered completely, it shall be answered to the extent possible”].)

Notwithstanding the above finding (that most of Defendant’s discovery requests seek relevant information), the Court agrees with Plaintiff that the discovery requests are overly broad because they are not limited to the vehicles that Plaintiff uses for hop-on, hop-off tours in California. Instead, the RPDs and SROGs seek information regarding all vehicles Plaintiff and its affiliates use. The Court shall add the “hop-on, hop-off route in California” limitation to the discovery requests.

Plaintiff has not explained the reasons behind its “right to privacy” and “confidential business information” objections in its Oppositions. Accordingly, the Court shall not address those objections at this time.

To the extent Plaintiff believes the discovery requests seek privileged information or documents, the Court shall require it to produce a privilege log. (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130 [“A privilege log must identify with particularity each document the responding party claims is protected from disclosure by a privilege and provide sufficient factual information for the propounding party and court to evaluate whether the claim has merit. [Citations.] The precise information required for an adequate privilege log will vary from case to case based on the privileges asserted and the underlying circumstances. In general, however, a privilege log typically should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document’s date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted”].)

The Court finds that both parties could have exerted more effort to meet and confer regarding the issues raised in the motions.

Mandatory Sanctions – Interrogatories & Requests for Production

Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel. (Code Civ. Proc., §§ 2030.290(c), 2031.300(c).) However, sanctions are not mandatory if the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Id.)

Furthermore, regardless of the reason for the delay in responding, monetary sanctions are mandatory against a party or attorney, or both, whose failure to serve a timely response necessitated the filing of the deemed-admitted motion. (Code Civ. Proc., § 2033.280(c).)

The Court finds that both parties could have exerted more effort to meet and confer regarding the issues raised in the motions.

Given the insufficient meet and confer process, imposing sanctions on either party would be unjust. (Code Civ. Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h).)

Accordingly, the request for monetary sanctions is denied.

Conclusion

The RPDs Motion is GRANTED IN PART as follows. Plaintiff/Cross-Defendant is ORDERED to serve responses to the RPDs within 30 days of this ruling. All discovery responses shall be limited to documents regarding vehicles the Plaintiff/Cross-Defendant (not its affiliates) use for its hop-on, hop-off route in California.

The SROG Motion is GRANTED IN PART as follows. Plaintiff/Cross-Defendant is ORDERED to serve responses to all SROGs, except Nos. 53 and 54, within 30 days of this ruling. All discovery responses shall be limited to documents regarding vehicles the Plaintiff/Cross-Defendant (not its affiliates) use for its hop-on, hop-off route in California.

The parties’ respective requests for sanctions are DENIED.