Judge: Ralph C. Hofer, Case: 23GDCV00782, Date: 2025-02-07 Tentative Ruling
Case Number: 23GDCV00782 Hearing Date: February 7, 2025 Dept: D
TENTATIVE RULING
Calendar: 6
Date: 2/7/2025
Case No: 23 GDCV00782 Trial Date: April 6, 2026
Case Name: Khachatryan, et al. v. Lipp, et al.
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
Moving Party: Plaintiff Laert Khachatryan
Responding Party: Defendant Vladislav Viktorovich Lipp
RELIEF REQUESTED:
Further Responses to Form Interrogatories, Set One
CHRONOLOGY
Date Discovery served : October 23, 2024
Date Responses served: November 25, 2024
Date Motion served: December 23, 2024 timely
Meet and Confer? Yes
FACTUAL BACKGROUND:
Plaintiffs Laert Khachatryan and Sofya Abrahamyan allege that in December of 2022 defendant Vladislav Viktorovich Lipp caused a motor vehicle accident in which plaintiffs sustained personal injuries and property damage. The complaint alleges that defendant Avis Budget Group, Inc. owns the vehicle operated by defendant Lipp and negligently entrusted its vehicle to defendant Lipp, when defendant Lipp was an unlicensed driver.
The form complaint alleges causes of action for motor vehicle and general negligence.
The file shows that on May 19, 2023, defendant Avis Budget Group, Inc. (Avis) filed an answer to the complaint on behalf of itself only.
On July 24, 2024, an answer to complaint was filed by Law Office of Joseph L. Stark & Assoc. APC, as attorneys for defendants Avis and Lipp, stating: “COMES NOW, Defendant AVIS BUDGET GROUP, Inc., answering the complaint on behalf of Defendant Vladislav Viktorovich Lipp, who was served pursuant to California Code of Civil Procedure 1939.33 only, admits, denies and alleges as follows…”
ANALYSIS:
Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action...if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The section specifically provides that “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”
Under CCP §2030.300:
“(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:
(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.
(3) An objection to an interrogatory is without merit or too general.”
If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond to discovery. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. The granting or denial of a motion to compel is in the discretion of the trial court. Coy, at 221-222. A court should generally consider the following factors:
The relationship of the information sought to the issues framed in the pleadings;
The likelihood that disclosure will be of practical benefit to the party seeking discovery;
The burden or expense likely to be encountered by the responding party in furnishing the information sought.
Columbia Broadcast System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.
In this case, plaintiff Laert Khachatryan propounded form interrogatories—general on defendant Lipp on October 23, 2024.
The form interrogatories at issue include those pertaining to the identity of person answering the interrogatories, general background information—individual, insurance, property damage, investigation, statutory or regulatory violations, defendant’s contentions—personal injury, responses to RFAs, and how the incident occurred—motor vehicle. [Zograbian Decl., Ex. A].
The interrogatories are Judicial Council approved form interrogatories, which request discoverable information with respect to a lawsuit of this nature. Plaintiff has filed a noticed motion seeking further responses to the subject discovery. The burden accordingly shifts to responding party to justify any objections or failure to fully respond.
On November 25, 2024, defendant Lipp “appearing through Avis Budget Group, Inc.” served responses to the discovery, which consists of one response to the entire set of discovery, which states:
“Responding party objects to this entire set of discovery. Mr. Lipp is not a proper party to this action. Mr. Lipp rented the car he was driving at the time of the accident giving rise to this action from Avis. Mr. Lipp cannot be located. Based upon an investigation it appears that Mr. Lipp appears to be somewhere in Russia.
Plaintiff was unable to make personal service on Mr. Lipp. Plaintiff served Mr. Lipp, per California Code of Civil Procedure 1939.33, which allows a party to make service on a foreign renter by serving the rental car company. Avis answered for Mr. Lipp per California Code of Civil Procedure 1939.33.
Plaintiff has full knowledge that Avis cannot locate Mr. Lipp. Avis retained an investigator who could not locate Mr. Lipp.
This discovery is a sham. Plaintiff knows Lipp is not available to answer. Plaintiff is abusing CCP Sec.1939.33
Mr. Lipp’s failure to respond is not intentional. He has no knowledge that he was served with discovery. Mr. Lipp is not a proper party to whom to direct written discovery because Mr. Lipp was named as a defendant solely to reach insurance as allowed under Civil Code Section 1939.33.
The motion seeks further responses to Form Interrogatory No. 15.1, which requests that the responding party identify each material allegation and affirmative defense in its pleading and for each state the facts, witnesses, and documents supporting the allegation or defense.”
[Zograbian Decl., Ex. B].
The responses are not verified.
Plaintiff argues that the response here is a sham and improper, and acknowledges that it is not a response by defendant Lipp as it admits there has been no contact with him. Plaintiff argues that while the response purports to be made on behalf of defendant Lipp by and through defendant Avis, defendant Avis has no standing or authority to appear on Lipp’s behalf or object to or provide discovery responses.
Plaintiff argues that service was validly made on defendant Lipp pursuant to CCP section 1939.33, as further evidenced by the fact that defense counsel answered on behalf of Lipp. Plaintiff argues that once the answer had been filed, plaintiff was within plaintiff’s rights to serve discovery, and defendant Lipp was required to respond.
CCP section 1939.33 provides:
“(a) When a rental company enters into a rental agreement in the state for the rental of a vehicle to any renter who is not a resident of this country and, as part of, or associated with, the rental agreement, the renter purchases liability insurance, as defined in subdivision (b) of Section 1758.85 of the Insurance Code, from the rental company in its capacity as a rental vehicle agent for an authorized insurer, the rental company shall be authorized to accept, and, if served as set forth in this section, shall accept, service of a summons and complaint and any other required documents against the foreign renter for any accident or collision resulting from the operation of the rental vehicle within the state during the rental period. If the rental company has a registered agent for service of process on file with the Secretary of State, process shall be served on the rental company's registered agent, either by first-class mail, return receipt requested, or by personal service.
(b) Within 30 days of acceptance of service of process, the rental company shall provide a copy of the summons and complaint and any other required documents served in accordance with this section to the foreign renter by first-class mail, return receipt requested.
(c) Any plaintiff, or his or her representative, who elects to serve the foreign renter by delivering a copy of the summons and complaint and any other required documents to the rental company pursuant to subdivision (a) shall agree to limit his or her recovery against the foreign renter and the rental company to the limits of the protection extended by the liability insurance.
(d) Notwithstanding the requirements of Sections 17450 to 17456, inclusive, of the Vehicle Code, service of process in compliance with subdivision (a) shall be deemed a valid and effective service.
(e) Notwithstanding any other law, the requirement that the rental company accept service of process pursuant to subdivision (a) shall not create any duty, obligation, or agency relationship other than that provided in subdivision (a).”
This section places a duty on the rental company, defendant Avis here, to accept service of a summons and complaint and any other required documents against the foreign renter, and to provide a copy of the summons and complaint and any other required documents to the foreign renter by first-class mail, return receipt requested. There does not appear to be a duty to file an answer on behalf of the renter, particularly without the renter’s knowledge or consent, and the statute expressly states under subdivision (d), that the requirement that the rental company accept service of process “shall not create” other than that duty, “any duty, obligation, or agency relationship…”
As argued in the motion and reply, defendant Avis, in answering the complaint on behalf of defendant Lipp, after Lipp had been validly served, caused Lipp to make an appearance in this case, subjecting him to discovery.
Defendant Avis’ position now, that Lipp is not obligated to respond to discovery, is not supported by any cited law.
The opposition argues that the motion is a sham because when plaintiff served the discovery plaintiff knew that defendant Lipp was not available to respond, and that the response provided correctly describes the circumstances. The opposition argues, without legal authority, that defendant Lipp is not a proper party to whom direct discovery may be propounded because he was named as a defendant solely to reach insurance as allowed under CCP section 1939.33. The opposition argues that the action is being litigated by “Budget, as the ‘real party’ insurer.” [Opp., p. 3:21-22]. The party here is Avis, not “Budget,” and there is no suggestion or evidence submitted showing that Avis, the owner of the vehicle, is also its insurer, although this may be the case.
Although not cited by the parties, case law recognizes that a party served under CCP section 1939.33 (applying a previous version of the statute) is “a proper party defendant” to whom plaintiff may direct a settlement offer. Anthony v. Xiaobin Li (2020) 47 Cal.App.5th 816, 823. The court of appeal found this was the case despite the argument that in that case the offer had been addressed solely to a “non-participating foreign national who did not even know about the lawsuit, and against whom [plaintiff] was not allowed to collect since he had agreed to limit his recovery to insurance.” Anthony, at 823. The court of appeal in Anthony observed that defendant driver and the rental car company in that case had “filed separate answers and separate discovery responses,” suggesting that as a proper party defendant, who had filed a separate answer, the driver defendant was properly expected to respond to discovery. Anthony, at 818.
This matter is now in an unusual posture where defendant Lipp has been properly served with discovery, and is under obligation to respond. There is no legal authority cited which would establish an exception in these circumstances. Defendant in opposition has failed to justify the objection asserted, as it is his burden to do. Plaintiff has established entitlement to an order compelling further responses. The motion accordingly is granted. Defendant Lipp is ordered to serve further responses, fully responding to each of the propounded form interrogatories, without objections.
Although the moving party argues that the responses were untimely, it does not appear that the responses were untimely, as they were served within thirty days of the service of the discovery, permitting an additional two days for service of the discovery by eservice. The argument may be that since the response was not verified, the response would be considered improper and so untimely. However, CCP § 2030.250(a) provides that “The party to whom the interrogatories are directed shall sign the response under oath unless the response contains only objections.” The response here, containing no substantive response, but only an objection, was not required to be verified, so objections have not been waived on this untimeliness ground. However, the objection made has not been justified, and all objections which could have been asserted and were not asserted have now been waived. The further responses accordingly are ordered to be made without objections.
Moving party also seeks monetary sanctions. Plaintiff argues that defendant has engaged in misuse of the discovery process. Under CCP § 2023.010, misuse of the discovery process includes “(e) Making, without substantial justification, an unmeritorious objection to discovery. (f) Making an evasive response to discovery”; and “(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery….” Where there has been misuse of the discovery process, under CCP § 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”
The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436.
The opposition argues that sanctions are not warranted here, as defense counsel has acted in good faith at all times, and that defendant Lipp is unaware of the matter and should not be sanctioned. The court finds the circumstances highly unusual. Hence the court denies the request for monetary sanctions at this juncture.
The court will hear argument with respect to whether the order granting the motion to compel will be stayed to permit the insurer to participate in this matter.
As argued by plaintiff, and set forth in meet and confer efforts, it appears that due to the service pursuant to section 1939.33, the real party in interest here is the insurance company, not the rental car company, and what should have occurred here is not that the rental company appear on behalf of the renter, but that the insurer under the statute seek to intervene in this matter to preserve its rights which are not being protected by the absent renter.
This remedy is recognized under CCP § 387, pursuant to which:
“(a) For purposes of this section:
(1) “Defendant” includes a cross-defendant.
(2) “Plaintiff” includes a cross-complainant.
(b) An intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following:
(1) Joining a plaintiff in claiming what is sought by the complaint.
(2) Uniting with a defendant in resisting the claims of a plaintiff.
(3) Demanding anything adverse to both a plaintiff and a defendant.
(c) A nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.
(d)(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:
(A) A provision of law confers an unconditional right to intervene.
(B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties.
(2) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.”
Generally, case law recognizes that where an insurer may be subject to a direct proceeding by a judgment creditor against liability insurance covering a defendant pursuant to Insurance Code § 11580, the insurer is permitted to intervene in a civil action to protect ist rights. Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383.
In Reliance, the court of appeal set out the right to intervene rather broadly, based on the practical consequences of application of Insurance Code § 11580:
“An insurer's right to intervene in an action against the insured, for personal injury or property damage, arises as a result of Insurance Code section 11580. Section 11580 provides that a judgment creditor may proceed directly against any liability insurance covering the defendant, and obtain satisfaction of the judgment up to the amount of the policy limits. (See Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group) P 15:1028 et seq. (rev. # 1, 1999).) Thus, where the insurer may be subject to a direct action under Insurance Code section 11580 by a judgment creditor who has or will obtain a default judgment in a third party action against the insured, intervention is appropriate. ( Clemmer v. Hartford Insurance Co. (1978) 22 Cal. 3d 865, 884-885 [151 Cal. Rptr. 285, 587 P.2d 1098].) The insurer may either intervene in that action prior to judgment or move under Code of Civil Procedure section 473 to set aside the default judgment. (22 Cal. 3d at pp. 884-885.) Where an insurer has failed to intervene in the underlying action or to move to set aside the default judgment, the insurer is bound by the default judgment. ( Id. at p. 886.)”
Reliance, at 386-387.
This posture is a comparable situation, where defendant here was permitted to be served by plaintiff based on a statutory concession that plaintiff “agree to limit his or her recovery against the foreign renter and the rental company to the limits of the protection extended by the liability insurance.” CCP section 1939.33 (c).
It is not clear who the insurer is in this case, which may in fact be the rental company, as confusingly suggested by the opposition. In any case, it appears that intervention should be pursued by the insurer as insurer. Although a default is not imminent here because an apparently unauthorized answer has been filed, this matter may quickly devolve into having the answer withdrawn, or stricken based on discovery abuses.
The court will hear argument on this issue, as well as the concerns raised by the representation of a party without contact or consent, which does not appear to be directly authorized under CCP section 1933.33.
RULING:
Amended Motion to Compel Further Responses to Form Interrogatories, Set One, is GRANTED.
Defendant Vladislav Viktorovich Lipp is ordered to serve further verified responses to Form Interrogatories—General, Set No. One propounded by plaintiff Laert Khachatryan, without objection, within thirty days.
Monetary sanctions sought by moving parties are DENIED, as the Court finds that defendant was substantially justified under the present circumstances in serving the subject response and in opposing this motion.
The Court will hear argument concerning whether the above order will be stayed for a reasonable period to permit the parties to explore the appropriate method to posture this action given the service on defendant Lipp pursuant to CCP section 1939.33.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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