Judge Ronald F. Frank, Case Number: 21STCV18145, Date: 2023-09-01 Tentative Ruling

Judge: Ronald F. Frank, Case: 21STCV18145, Date: 2023-09-01 Tentative Ruling

Case Number: 21STCV18145 Hearing Date: September 1, 2023 Dept: 8

Tentative Ruling

HEARING DATE: September 1, 2023¿

CASE NUMBER: 21STCV18145

CASE NAME: David Zeil v. DOES 1 through 100. .

MOVING PARTY: (1), (2) Plaintiff, David Zeil

RESPONDING PARTY: (1), (2) Defendant, Southwest Airlines Co.

TRIAL DATE: None set.

MOTION:¿ (1) Plaintiff’s Motion for Terminating and Issue Sanctions against Southwest re Responses to Form Interrogatories and Special Interrogatories; Request for Monetary Sanctions of $11,568.40

(2) Plaintiff’s Motion for Terminating, Issue, and Evidence Sanctions against Southwest Airlines Co. RE: Inspection Demands; Requests for Monetary Sanctions of $16,568.40

Tentative Rulings: (1) Plaintiff’s Motion for Terminating and Issue Sanctions against Southwest regarding interrogatory responses is Denied. The Court instead is issuing orders for further discovery responses and denying the cross-requests for monetary sanctions.

(2) Plaintiff’s Motion for Terminating, Issue, and Evidence Sanctions against Defendant Southwest re Inspection Demands is also Denied, but the Court instead is ordering production of additional documents and denying the monetary sanctions

PRELIMINARY STATEMENT

Some civil cases are ones the Court need only participate at a CMC and final status conference; others require the Court’s involvement over and over again. This is the latter such case. The Court will not order a discovery referee in a stipulated to be no-more-than $75,000 case. But by now, it is clear to the Court that both counsel have become personally embroiled in the discovery disputes. While unfortunate, such a development is bound to occur in the 10% of cases that occupy 50% of the Court’s law and motion time. The Court will continue to attempt to referee these disputes in the court system, not with an outside, for-pay referee.

As to a few of the issues raised by these motions, the Court’s tentative is to consider oral argument. But Judge Frank has been called out of town for September 1, so unless the parties are willing to otherwise stipulate on the tentative as to the other issues, a future hearing date will be required on the matters noted for possible oral argument.

I. BACKGROUND¿

A. Factual¿

On May 14, 2021, Plaintiff, David Zeil (“Plaintiff”) filed a Complaint against Defendants DOES 1 through 100. Plaintiff eventually learned of the identity of more Defendants including Southwest Airlines Co, and Ms. Manu. The Complaint alleges causes of action for: (1) Products Liability; and (2) General Negligence.

On August 1, 2022, Plaintiff served form interrogatories, 24 special interrogatories, 21 admission requests and 44 inspection demand on Defendant, Southwest Airlines. On August 31, 2022 defendant served responses to the above discovery. Plaintiff contends that the responses contain multiple objections, fail to provide substantive responses to most of the discovery and in general, were not good faith responses.

Plaintiff asserts that on September 14, 2022, he sent a detailed meet and confer letter to defense counsel regarding Defendant’s discovery responses setting forth why further responses were needed to form interrogatories nos. 4.1, 15.1 and the 16 series, special interrogatory nos. 2, 3, 5, 6, 8-14, 18, 19, 21-26, and 29 and inspection demand nos. 1-13, 15-34 and 37-55. Plaintiff contends that on September 21, 2022, defense counsel wrote back stating Defendant would not provide any further responses and that it was standing on its objections.

Plaintiff notes that initially, it filed these motions on October 3, 2022, but due to COVID-19 delays, the transfer of this matter from Torrance to Inglewood, and subsequent IDCs, the disputed matters have yet to be resolved. In and Order issued April 14, 2023, this Court granted the motions to compel as to form and special interrogatories. The Court ordered Southwest to provide Code-compliant Further Responses to Form Interrogatory Nos. 4.1, 12.1, 15.1, 16.1, 16.2, 16.9 and 16.10, and to Special Interrogatory Nos. 2, 3, 5, 6, 8-14, 18, 19, 21-26 and 34. , and properly verify them. On May 31, 2023, the Court granted in part and denied in part the Motion to compel further responses to document demands and to provide the Privilege Log.

The Court recognizes that the parties have had numerous meet and confer attempts, and that on June 27, 2023, defendant provided further responses to form interrogatory nos. 4.1, 12.1, 15.1, 16.1, 16.2, 16.9 and 16.10, special interrogatory nos. 2, 3, 5, 6, 8-14, 18, 19 & 22-26, and inspection demand nos. 2-5, 8-13, 15-19, 21-23, 26-27, 30, 32-33 and 38-40. However, Plaintiff maintains that these responses provided almost no new information other than the telephone number of Ms. Manu. As such, Plaintiff’s counsel sent another meet and confer letter. After more discussions, Plaintiff asserts that Defendant is unwilling to engage in serious discussions or provide meaningful further responses, which is why Plaintiff has brought the current motions.

B. Procedural

On July 20, 2023, Plaintiff filed the two present motions. On August 21, 2023, Defendant filed opposition briefs. On August 25, 2023, Plaintiff filed reply briefs.

II. REQUEST FOR JUDICIAL NOTICE

Filed concurrently with Plaintiff’s Motions with respect to Form and Special Interrogatories, Plaintiff has requested this Court take judicial notice of the following documents:

1. All pleadings, documents and papers on file and contained within this Court's record in the instant action.

2. Plaintiff's motion to compel further responses to form interrogatories (including the declarations and exhibits in support thereof) filed on October 3, 2022 in this action, which is part of the court's records and file in this matter.

3. Plaintiff's motion to compel further responses to special interrogatories (including the declarations and exhibits in support thereof) filed on October 3, 2022 in this action, which is part of the court's records and file in this matter.

4. Plaintiff's separate statement in support of motion to compel further responses to form interrogatories filed on October 3, 2022 in this action, which is part of the court's records and file in this matter.

5. Plaintiff's separate statement in support of motion to compel further responses to special interrogatories filed on October 3, 2022 in this action, which is part of the court's records and file in this matter.

6. Plaintiff's IDC conference statement filed on October 3, 2022 in this action, which is part of the court's records and file in this matter.

7. Plaintiff's notice of continuance of IDC filed on December 14, 2022 in this action, which is part of the court's records and file in this matter.

8. Plaintiff's notice of continuance of hearing of discovery motions filed on January 12, 2023, which is part of the court's records and file in this matter.

9. Plaintiff's reply (including the declarations and exhibits in support thereof) in support of motion to compel further responses to form interrogatories filed on February 28, 2023, which is part of the court's records and file in this matter.

10. Plaintiff's reply (including the declarations and exhibits in support thereof) in support of motion to compel further responses to special interrogatories filed on February 28, 2023, which is part of the court's records and file in this matter.

11. The court's March 1, 2023 minute order [it was actually on February 28] re IDC, which is part of the court's records and file in this matter.

12. The court's March 7, 2023 minute order, which is part of the court's records and file in this matter.

13. Defendant's motion for summary judgment, filed March 16, 2023.

14. Plaintiff's reply (including the declarations and exhibits in support thereof) in support of motion to compel further responses to form interrogatory filed on April 4, 2023, which is part of the court's records and file in this matter.

15. Plaintiff's reply (including the declarations and exhibits in support thereof) in support of motion to compel further responses to special interrogatory filed on April 4, 2023, which is part of the court's records and file in this matter.

16. The Court's April 14, 2023 order re discovery - interrogatories, which is part of the court's records and file in this matter.

17. Plaintiff's supplemental declaration (and exhibits thereto), filed on April 24, 2023, which is part of the court's records and file in this matter.

18. Plaintiff's notice of continued hearing on motion to compel re inspection demands, filed on April 25, 2023, which is part of the court's records and file in this matter.

19. Plaintiff's separate statement filed on May 16, 2023, which is part of the court's records and file in this matter.

20. Plaintiff's reply (including the declarations and exhibits in support thereof) in support of motion re inspection demands filed on May 16, 2023, which is part of the court's records and file in this matter.

21. The Court's May 31, 2023 order re discovery - inspection demands, which part of the court's records and file in this matter.

22. The Court's June 2, 2023 order re discovery - inspection demands, which part of the court's records and file in this matter.

Additionally, filed concurrently with its motion to compel further responses to Inspection Demand, Plaintiff has requested this Court take judicial notice of the following documents:

1. All pleadings, documents and papers on file and contained within this Court's record in the instant action.

2. Plaintiff's motion to compel further responses to inspection demands (including the declarations and exhibits in support thereof) filed on October 3, 2022 in this action, which is part of the court's records and file in this matter.

3. Plaintiff's separate statement in support of motion to compel further responses to inspection demands filed on October 3, 2022 in this action, which is part of the court's records and file in this matter.

4. Plaintiff's motion to compel further responses to form interrogatories (including the declarations and exhibits in support thereof) filed on October 3, 2022 in this action, which is part of the court's records and file in this matter.

5. Plaintiff's separate statement in support of motion to compel further responses to form interrogatories filed on October 3, 2022 in this action, which is part of the court's records and file in this matter.

6. Plaintiff's motion to compel further responses to special interrogatories (including the declarations and exhibits in support thereof) filed on October 3, 2022 in this action, which is part of the court's records and file in this matter.

7. Plaintiff's separate statement in support of motion to compel further responses to special interrogatories filed on October 3, 2022 in this action, which is part of the court's records and file in this matter.

8. Plaintiff's IDC conference statement filed on October 3, 2022 in this action, which is part of the court's records and file in this matter.

9. Plaintiff's notice of continuance of IDC filed on December 14, 2022 in this action, which is part of the court's records and file in this matter.

10. Plaintiff's notice of continuance of hearing of discovery motions filed on January 12, 2023, which is part of the court's records and file in this matter.

11. Plaintiff's reply (including the declarations and exhibits in support thereof) in support of motion to compel further responses to form interrogatories filed on February 28, 2023, which is part of the court's records and file in this matter.

12. Plaintiff's reply (including the declarations and exhibits in support thereof) in support of motion to compel further responses to special interrogatories filed on February 28, 2023, which is part of the court's records and file in this matter.

13. The court's March 1, 2023 minute order re IDC, which is part of the court's records and file in this matter.

14. The court's March 7, 2023 minute order, which is part of the court's records and file in this matter.

15. Defendant's motion for summary judgment, filed March 16, 2023.

16. Plaintiff's reply (including the declarations and exhibits in support thereof) in support of motion to compel further responses to inspection demands filed on April 4, 2023, which is part of the court's records and file in this matter.

17. The Court's April 14, 2023 order re discovery, which is part of the court's records and file in this matter.

18. Plaintiff's supplemental declaration (and exhibits thereto), filed on April 24, 2023, which is part of the court's records and file in this matter.

19. Plaintiff's notice of continued hearing on motion to compel re inspection demands, filed on April 25, 2023, which is part of the court's records and file in this matter.

20. Plaintiff's amended separate statement filed on May16, 2023, which is part of the court's records and file in this matter.

21. Plaintiff's reply (including the declarations and exhibits in support thereof) in support of motion re inspection demands filed on May 16, 2023, which is part of the court's records and file in this matter.

22. The court's May 31, 2023 minute order, which is part of the court's records and file in this matter.

23. The court's June 2, 2023 minute order, which is part of the court's records and file in this matter.

This Court GRANTS both of Plaintiff’s requests and takes judicial notice of the above documents. The Court discourages the parties from seeking future judicial notice of a litany of documents already contained in the Court’s file for this very case. It is not necessary for the Court to judicially notice its own file; better practice would be for a party to reference the filing date and title of those few, limited, most pertinent prior pleadings or orders in a party’s brief.

III. ANALYSIS

A. Legal Standard

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. Code Civ. Proc. § 2025.450, subd. (h) (depositions); § 2030.290, subd. (c) (interrogatories); § 2031.300, subd. (c) (demands for production of documents); § 2033.290, subd. (e) (requests for admission). Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . .” Section 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . (g) Disobeying a court order to provide discovery. . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal.App.4th at p. 390 [citation omitted].)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Id., citing Lang, supra, 77 Cal. App. 4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed after defendants failed to comply with one court order to produce discovery]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)

Upon finding a party has engaged in a misuse of the discovery process, the trial court has discretion to order an issue sanction. (Code Civ. Proc., § 2023.030 (b).) Such sanctions may designate facts that shall be taken as established in the action in accordance with the claim of the party adversely affected by a misuse of the discovery process. (Ibid.) Discovery sanctions are matters squarely within the trial court’s discretion and will not be returned except instances of extreme abuse. (Do It Urself, supra, 7 Cal.App.4th at p. 36.) A terminating sanction is an extreme remedy; it is only justified where a violation is preceded by a history of abuse and less severe sanctions would fail to produce compliance. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279—280 (Mileikowsky).) A movant seeking discovery sanctions based on the alleged spoliation of evidence proceeds by showing a prima facie case that the respondent destroyed evidence which had a substantial probability to establish an element of the movant’s defense. (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1226 (Williams).) The burden then shifts to the respondent to show otherwise. (Ibid.)

B. Discussion

Here, Plaintiff maintains that Defendant has willfully refused to provide sufficient responses to Plaintiff’s discovery. Further, Plaintiff contends that Defendant has provided answers that are demonstrably evasive, contrary to documents produced and/or false, and that Defendant has refused to meet and confer in good faith during their attempts. Plaintiff argues that this in addition to the following, warrants terminating and evidentiary sanctions: the fact that discovery has been outstanding for a year; numerous meet and confer attempts have been made; plaintiff’s requests are not excessive; the information and documents sought is difficult to obtain; the responses supplied by defendant are evasive and incomplete; defendants answers are evasive and incomplete, leaving information and documents that are material to Plaintiff’s claims; and that allowing more time for Defendant to produce does not seem likely to produce necessary information. Plaintiff seeks sanctions in the amount for $11,568.40 for the form and special interrogatories motion, and $16,568.40 for the motion involving the requests for production.

In opposition, Southwest argues that terminating and evidentiary sanctions are not permitted here as they have not failed to disobey a Court order. Instead, Southwest asserts that Plaintiff takes issue with the form and substance of Southwest’s responses, and contends, without basis, that Southwest is withholding information or has failed to respond with “reasonable diligence.” Southwest also argues that terminating sanctions by way of a default judgment against Southwest is a drastic measure when they have offered good-faith answers to Plaintiff’s inquiries. Southwest posits that this Court should appoint a discovery referee and has also requested sanctions in the amount of $9,625 per opposition (totaling $19,250.)

The Court will address each request below:

Form Interrogatories

The Court GRANTS a still further response to Form Interrogatory No. 4.1. Defendant has continued to fail in responding to each of the subparts of the question. Although Southwest argues that its policy limits and premiums are considered confidential, proprietary trade secrets, that is exactly what a privilege log is for, which the Court previously ordered. The Court orders Southwest to respond in a Code-compliant way to FROG 4.1(e).

The Court DENIES the motion as to FROG 12.1. Southwest has represented that its employees are represented, and can be reached through counsel. If Plaintiff desires to take tehri depositions, Southwest’s counsel has represented that they can be contacted via counsel and dates set through counsel. That is a sufficient response.

The Court DENIES the motions as to FROG 15.1. While Southwest has provided some new information regarding affirmative defenses, and fails to list the facts separately as to each denial of a material allegations and each affirmative defense, the Court will not require such a further response. The facts are the facts. If Southwest fails to list a fact, witness or document in its response to FROG 15.1 and later seeks to present proof of a new fact, witness or document in support of a dispositive motion or at trial, Southwest may be subject to exclusion of that fact or witness or document on application by Plaintiff before the motion hearing or at trial.

The Court understands that with FROG 16.1, Southwest had already produced the contact information for Ms. Manu previously in a different response above. As such, the Court finds this response to be partially compliant. Southwest has provided facts upon which it bases its contention that Ms. Manu contributed to the occurrence. Plaintiff points out that Defendant has repeatedly asserted that it is not responsible for the incident, indicates that TSA policy may be involved, and mentions Ms. Manu’s involvement. Plaintiff also notes Defendant claims to have has statements by the pilot and some flight attendants but has failed to produce them. The Court will take oral argument on this issue, and will consider work product privilege arguments, but tentatively GRANTS this request to requires identification of the witness statements of the pilot and flight attendants as well as to custodian(s) of the same.

The Court GRANTS a still further response as to FROG 16.2 as it is insufficient because it does not provide the names, addresses, and telephone numbers of all persons with knowledge of the facts or persons who have access to the document. This information may bear on whether the asserted privilege has been waived.

The Court denies a further response as to FROG Nos. 16.9 and 16.10, as the Court finds the responses sufficient as Southwest indicates it is not in its possession, custody, or control.

Special Interrogatories

As to Special Interrogatories Nos. 2 and 3 the Court seeks oral argument as to why Southwest changed its response to interrogatory 1, and why the responses contain less information than it originally did. If it is true that Defendant does not have a theory on how the incident occurred, then its responses are sufficient. However, if Defendant is changing its definition of “theory” to avoid answering the questions, than the Court will GRANT this request.

The Court determines that as to SROG 6, 9, and 10, it is a sufficient response to list members of the crew of Flight 1983 with knowledge of the incident. Providing the contact ifomation of every air and ground crew member who has not knowledge of or is not a witness to the incident is not reasonably calculated to lead tot eh discovery of admissible evidence, considering the factors bearing on what does and does not constitute reasonableness. As to SROG 11, the failure to identify all ground crew, but the identification of the gate agent(s) is a sufficient response. Absent some showing as to how any other member of the ground crew besides a gate agent was reasonably involved in the failure to identify the presence of a vape pen or other device that led to the occurrence of the incident here, no further response will be required. The response to SROG 12 is insufficient because it does not provide contact information for the gate agents or a representation that each can be contacted through Southwest’s counsel.

The Court DENIES a further response as to SROG 5, 8, 13, 14, 18, 19, 22, 26, 34.

Inspection Demands

As to demand no. 1, the Court requires oral argument as to the issue of the privilege log. Southwest maintains that one was produced, however, Plaintiff’s reply brief contends that Southwest has still failed to produce a further privilege log as it did not comply with section 2031.240.

Depending on Demand No.1 decision, the Court will decide the remaining inspection demands. However, the Court’s tentative ruling is to DENY the motion based on inspection demand nos. 2-40. The Court’s previous tentative ruling was overruled in part and sustained in part, provided that Southwest had the documents. Southwest maintains that they do not have access to these documents. There is no evidence that Southwest is not being truthful as to the documents of which they have possession, custody, or control.

As for Demands Nos. 41-55, Plaintiff contends that since this Court’s previous ruling, Southwest has filed a motion for summary judgment based upon its affirmative defenses of preemption and failure to state a cause of action. Further, Plaintiff notes that since then, Southwest has failed to provide responses. The Court will allow oral argument as to these issues and Defendant’s intention to produce more documents now that it has filed a Motion for Summary Judgment.

Sanctions

The Court denies both of the cross-motions for monetary sanctions. The Court’s tentative ruling is a “split decision,” indicative of the fact that once again there were some substantial justifications for the positions taken by both sides.