Judge: Stephen Morgan, Case: 18STCV05562, Date: 2023-11-28 Tentative Ruling
Department A14 Tentative Rulings
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Case Number: 18STCV05562 Hearing Date: December 12, 2023 Dept: A14
Background
Plaintiffs Marci Higer (“Higer”)
and Brad¿Waisbren¿(“Waisbren” and collectively “Plaintiffs”) were tenants at
the storage facility located at 3421 Gillespie in Acton, CA (the “Property”).¿
On August 03, 2017, a tumultuous rainstorm resulted in flooding on the
Property, damaging Plaintiff’s stored chattels.¿ On February 02, 2018,
Plaintiffs filed a Government Tort Claim with Defendant County of Los Angeles (“COLA”),
which was ultimately denied on May 21, 2018.¿
¿On November 18, 2018, Plaintiffs
filed their initial Complaint against COLA and Defendants Los Angeles County of
Regional Planning, Los Angeles County Department of Public Works, Los Angeles
County Flood Control District, and Los Angeles County Waterworks District No.
37, Acton, alleging ten (10) cause of action sounding in (1)¿Negligence, (2)
Inverse Condemnation; (3) Public Nuisance; (4) Private Nuisance; (5) Premises
Liability; (6) Premises Liability–Willful Failure to Warn (Civ. Code § 846);
(7)¿ Trespass; (8) Intentional Infliction of Emotional Distress; (9) Negligent
Infliction of Emotional Distress (“NIED”); (10) Dangerous Condition of Public
Property–Gov. Code §§ 830–840.6.¿ Plaintiffs’¿principle¿contention is that the
flooding on the property was caused and exacerbated by the design,
construction, and maintenance of the county’s neighboring roads and flood water
infrastructure, which allegedly carried large amounts of storm runoff directly
to Plaintiffs’ property as a de facto catch basin.¿
On June 10, 2019, prior to any
Answer from any defendant, Plaintiffs filed their first amended complaint
(“FAC”), alleging ten (10) causes of action sounding in (1)¿Inverse
Condemnation, (2) Negligence; (3) Public Nuisance; (4) Private Nuisance; (5)
Premises Liability; (6) Trespass; (7)¿Premises Liability–Willful Failure to
Warn (Civ. Code § 846) ; (8) NIED; (9) Dangerous Condition of Public Property
(Gov. Code §§ 830–840.6); and (10)Violations of the California Public Records
Act Request, Gov. Code § 6250¿et al.¿ Plaintiff named only two of the
previously named defendants in the initial complaint, COLA and Defendant Los
Angeles County Flood Control District (“LACFCD” and¿collectively
“Defendants”).¿
On December 12, 2019, the Court
sustained Defendants’ Demurrer to Plaintiff’s FAC, with leave to amend.¿
Plaintiff filed their Second Amended Complaint (“SAC”) on January
10,¿2020¿alleging four (4) causes of action for (1) Inverse Condemnation (2)
Risk of Peculiar Kind (Gov. Code § 815.6); (2) Dangerous Condition of Public
Property¿(Gov. Code §§ 830–840.6); and Violation of the California Public
Records Act (Gov. Code § 6250).¿
¿On July 09,¿2020¿the Court
sustained Defendants’ Demurrer to the first, second, and third causes of
action, with leave to amend and overruled the demur as to the fourth cause of
action.¿ Plaintiffs filed the Third Amended Complaint (“TAC”) on August
03,¿2020¿realleging four (4) causes of action for (1) Inverse Condemnation (2)
Risk of Peculiar Kind (Gov. Code § 815.6); (3) Dangerous Condition of Public
Property¿(Gov. Code §§ 830–840.6); and (4) Violation of the California Public
Records Act (Gov. Code § 6250).¿
On October 20, 2020, the Court
sustained Defendants’ Demurrer to the first, second, and third causes of action
to Plaintiffs’ TAC, providing Plaintiffs with leave to amend. On April 05,
2021, Plaintiffs filed the Fourth Amended Complaint realleging four (4) causes
of action for (1) Inverse Condemnation, (2) Violation of Gov. Code § 815.6; (3)
Dangerous Condition of Public Property (Gov. Code §§ 830, 835, 835.2); and (4)
Violation of the California Public Records Act (Gov. Code § 6250).
On July 16, 2021, the Court
sustained Defendants’ Demurrer to the first, second, and third causes of action
to Plaintiffs’ Fourth Amended Complaint, providing Plaintiff’s with leave to
amend. On October 14, 2021, Plaintiffs filed the Fifth Amended Complaint
(“5AC”) realleging four (4) causes of action for (1) Inverse Condemnation, (2)
Violation of Gov. Code § 815.6; (3) Dangerous Condition of Public Property
(Gov. Code §§ 830, 835, 835.2); and (4) Violation of the California Public
Records Act (Gov. Code § 6250).
On December 15, 2021, Defendants
filed a Demurrer with Motion to strike. Subsequently, the Demurrer was
overruled and the Motion to Strike was Denied on January 20, 2022.
On February 18, 2022, Defendants
filed their Answer.
Informal Discovery Conferences
(“IDCs”) were held on August 23, 2022; September 06, 2022; September 13, 2022;
and October 04, 2022.
On October 14, 2022, Defendants
filed the Motion for Summary Judgment set for hearing on November 19, 2022.
On October 18, 2022, Defendants
filed an Ex Parte Application to Continue the Trial Date (“Ex Parte
Application”). The Court was dark and the matter was heard in Department A15 on
October 19, 2022. The Ex Parte Application was continued to allow it to be head
by Judge Morgan in Department A14.
On October 31, 2022, the Court
heard Defendants’ Hearing on Ex Parte Application to Continue the Trial Date.
The Ex Parte Application was granted and the Motion for Summary Judgment was
continued to March 16, 2023.
On February 01, 2023, the Motion
for Summary Judgment was continued to May 02, 2023.
On February 24, 2023, the Motion
for Summary Judgment was continued to May 02, 2023.
On May 02, 2023, the Motion for
Summary Judgment was continued to July 25, 2023.
On May 15, 2023, the Motion for
Summary Judgment was continued to November 28, 2023.
Discovery issues have been prevalent
throughout this period.
The Court emphasizes that this
case is drawing near to the five-year mark. Under California law, “[a]n action
shall be brought to trial within five years after the action is commenced
against the defendant.” (See Cal. Code Civ. Proc. § 583.310.) Cal. Code Civ.
Proc. § 583.310 requires that an action be dismissed if it is not brought to
trial within five years after its commencement against a defendant. (See Gray
v. Firthe (1987)194 Cal. App. 3d 202, 208-09.) Due to the COVID-19
pandemic, Emergency Rule 10 provided an extension of six months in which to
bring a case to trial. (Judicial Council of California, Appendix I: Emergency
Rules Related to COVID-19, Rule 10 <
https://www.courts.ca.gov/documents/appendix_I.pdf> [as of December 04,
2023].) This rule sunset on June 20, 2022. (Ibid.) The Judicial Counsel
states clearly: “This sunset does not nullify the effect of the extension of
time in which to bring a civil action to trial under the rule.” (Ibid.)
Plaintiffs have five years and six months after the action is commenced against
Defendants to bring this case to trial. Plaintiffs commenced the action on
November 19, 2018. Five years and six months from November 19, 2018 is May 19,
2024. May 19, 2024 is a Sunday. “Unless otherwise provided by law, if the last
day for the performance of any act that is required by these rules to be
performed within a specific period of time falls on a Saturday, Sunday, or
other legal holiday, the period is extended to and includes the next day that
is not a holiday.” (Cal. Rules of Court, Rule 1.10(b).) This action must be
brought to trial by May 20, 2024.
On October 23, 2023, Plaintiffs
filed a Motion to Compel Further Responses to Production of Documents (Set
Three) against COLA set for hearing date December 12, 2023.
On October 25, 2023, Plaintiffs
filed two motions seeking to compel responses to Requests for Production of
Documents (Set Two) and (Set Three) against LACFCD. While the hearing date for
the motion to compel set two was continued from November 21, 2023 to November
28, 2023, there was no notice of continuance for the Motion to Compel Set Three.
However, both motions appear on the hearing date for November 28, 2023.
On November 13, 2023, Defendant LACFCD
filed Oppositions to the two motions directed against it.
On November 14, 2023, Plaintiffs
filed their Opposition to the Motion for Summary Judgment.
On November 17, 2023, Defendants
filed their Reply to the Motion for Summary Judgment.
The Court notes that, to date, no
replies to the two motions to compel directed to LACFCD were filed.
On November 28, 2023, the Court
continued the Motion for Summary Judgment and the two discovery motions to
December 12, 2023 to be heard with the Motion to Compel Further Responses to
Production of Documents (Set Three) against COLA.
On November 29, 2023, COLA filed
its Opposition to the Motion to Compel Further Responses to Production of
Documents (Set Three) against COLA.
On December 05, 2023, Plaintiffs
filed their Reply to the Motion to Compel Further Responses to Production of
Documents (Set Three) against COLA.
This tentative will address the
discovery motions. The Court will orally address the Motion for Summary
Judgment as it appears that there is an issue with the California Public
Records Request on non-party Los Angeles County Department of Public Works and
Plaintiffs’ expert is missing key data to oppose the motion.
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I.
Legal
Standard
Standard for Compelling Requests for Production
(“RFPs”)– Cal. Code Civ. Proc. §
2031.300 provides that a party may bring a motion to compel responses to a
request for production of documents, where the responding party failed to serve
a timely response. Unless otherwise agreed, the responding party is required to
serve response within 30 days after service of the discovery demand for
production documents. (Cal. Code Civ. Proc. § 2031.260(a).) If the responding
party fails to serve a timely response, the party “waives any objection to the
demand, including one based on privilege or on the protection for work product
. . .” (Cal. Code Civ. Proc. § 2031.300(a).) The requesting party need not
demonstrate “good cause to compel responses, nor that it satisfied the “meet
and confer” requirement. (Sinaiko¿Healthcare Consulting, Inc. v. Pacific
Healthcare Consultants¿(2007) 143 Cal.App.4th¿390, 404.)
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Standard for Compelling Further Responses for RFPS – Under Cal. Code Civ. Proc. § 2031.310, on receipt
of a response to a demand for inspection, copying, testing, or sampling, the
demanding party may move for an order compelling further response to the demand
if the demanding party deems that any of the following apply:
(1) A statement of compliance with the demand is
incomplete.
(2) A representation of inability to comply is
inadequate, incomplete, or evasive.
(3) An objection in the response is without merit or
too general.
(Cal. Code Civ. Proc. § 2031.310(a).)
“Unless notice of this motion is given 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, the demanding party waives any right
to compel a further response to the demand.” (Id. at (c).)
Meet and Confer Requirement – Before filing a motion to compel further, the
moving party is required to meet and confer with the party to engage in a
reasonable and good faith attempt at an informal resolution of each issue
presented by the motion. (Id. at (b)(2); see also Cal. Code Civ. Proc. §
2016.040.) This requirement has not been met. However, discovery issues have
been prevalent between the parties. The Court has held multiple Informal
Discovery Conferences (“IDCs”) in this matter from 2022 to 2023. On October 17,
2023, based on what was presented to the Court, the Court ordered: “No further
Informal Discovery Conferences are required in this case before motions may be filed.”
(10/17/2023 Minute Order.) The Court addresses the issue on its merits.
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Discussion
Application –
a.
Motion to Compel Further Responses to Requests
for Production of Documents (Set Three) against COLA
As an initial matter, the RFPs
directed to COLA were propounded on August 03, 2023. (See Decl. Brad Waisbren ¶
4.) The response from COLA was propounded on September 05, 2023. (See Exhibit
B.) The statute governing motions to compel further RFPs states clearly:
Unless notice of
this motion is given 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, the
demanding party waives any right to compel a further response to the demand.
(Cal. Code Civ. Proc. §
2031.310(c).)
Plaintiffs did not come in prior
to the October 17, 2023 order for an IDC. As such, no tolling of the discovery
timeline has occurred. 45 days from September 05, 2023 is October 20, 2023. Plaintiffs
filed their Motion to Compel Further Responses to Requests for Production of
Documents (Set Three) against COLA on October 23, 2023. As the motion was not
timely filed, Plaintiffs have waived any right to compel a further response to
the demand under Cal. Code Civ. Proc. § 2031.310(c).
Accordingly, the Motion to Compel
Further Responses to Requests for Production of Documents (Set Three) against
COLA is DENIED.
b.
Motion to Compel Responses to Requests for
Production of Documents (Set Two) against LACFCD
It has been presented that LACFCD
has served Plaintiffs with responses without objections on November 02, 2023.
(Decl. Richard A. Fond at ¶ 10.)
As discovery responses have been
served, the instant motion is now MOOT.
c.
Motion to Compel Responses to Requests for
Production of Documents (Set Three) against LACFCD
Plaintiffs present that the
Requests for Production of Documents (Set Three) was propounded on LACFCD on
August 03, 2023 and LACFCD has not provided responses. (Decl. Brad Waisbren at
¶ 4.)
LACFCD concedes that they failed
to timely respond to Plaintiffs’ motion. However, it attributes its failure to
a clerical error, claiming that the requests were not saved to file and a
response deadline was not calendared. (See Opp. Statement of Relevant Facts
B(2); Decl. Richard A. Fond at ¶¶ 8-9.) LACFCD states that Plaintiffs
separately filed a motion to compel further responses from the County of Los
Angeles, set for hearing on December 12, 2023 and asserts that the 174 document
requests at issue in that motion are identical in substance to the 174 document
requests at issue in this motion, with the only difference being that the
County responded the 174 requests, and asserted objections while LACFCD did not
respond or object to the same requests at issue in this motion. (See Opp.
Statement of Relevant Facts B(1); Decl. Richard A. Fond at ¶ 10.) LACFD argues
that the Court should treat COLA’s objections as LACFD’s objections: “For
purposes of this Motion, LACFCD respectfully requests that the Court use its
inherent powers to control discovery and elevate substance over form.
Specifically, LACFCD requests that the Court consider the objections and
responses of the County as the objections and responses of the LACFCD.” (Opp.
6:25-28.) LACFCD further states that, should the Court require COLA to provide
further responses, it will provide further responses. (See Opp. 6:28-7:1-3.)
LACFD and COLA are separate
defendants in this matter. While LACFCD would like the Court to view COLA’s
responses as its own, no legal authority has been cited. The Court declines to
do so.
The Court notes that there is a
further argument in LACFCD’s opposition where LACFCD appears to be arguing that
Plaintiffs are attempting “ ‘reset the clock’ by asking the same questions
again in a later set of interrogatories;” however; this does not appear
applicable as LACFCD and COLA are different parties.
Accordingly, the Motion to Compel
Responses to Requests for Production of Documents (Set Three) against LACFCD is
GRANTED under Cal. Code Civ. Proc. § 2031.300. LACFCD is ordered to provide
responses without objections within 30 days of this Court’s order.
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II.
Sanctions
The Court examines sanctions only
as to the Motion to Compel Further Responses to Requests for Production of
Documents (Set Three) against COLA and the Motion to Compel Responses to
Requests for Production of Documents (Set Three) against LACFCD.
As to the Motion to Compel
Further Responses to Requests for Production of Documents (Set Three) against
COLA, Plaintiffs request monetary sanctions in their notice; however, the
Memorandum of Points and Authorities does not address this matter. COLA’s
Opposition only discusses sanctions in regards to the failure to meet and
confer.
Plaintiffs cite to Cal. Code Civ.
Proc. §2031.300(c) in their request for sanctions. No argument is provided.
Plaintiffs also do not provide the amount of monetary sanctions sought.
As to the Motion to Compel
Further against COLA, “[e]xcept as provided in subdivision (j), the court shall
impose a monetary sanction under Chapter 7 (commencing with Section 2023.010)
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.” (Cal. Code Civ.
Proc. § 2031.310(h).)
As to the Motion to Compel against
LACFCD, “[e]xcept as provided in subdivision (d), the court shall impose a
monetary sanction under Chapter 7 (commencing with Section 2023.010) against
any party, person, or attorney who unsuccessfully makes or opposes a motion to
compel a response to a demand for inspection, copying, testing, or sampling,
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. If a party then fails to obey the order compelling a response, the
court may make those orders that are just, including the imposition of an issue
sanction, an evidence sanction, or a terminating sanction under Chapter 7
(commencing with Section 2023.010). In lieu of or in addition to this sanction,
the court may impose a monetary sanction under Chapter 7 (commencing with
Section 2023.010).” (Cal. Code Civ. Proc. § 2031.300(c).) Subdivision (d) is
not applicable here as it focuses on the failure to provide electronically
stored information that has been lost, damaged, altered, or overwritten as a
result of the routine, good faith operation of an electronic information system
and the corresponding obligation to preserve discoverable information. (Cal.
Code Civ. Proc. § 2031.300(d).)¿
Plaintiffs have not presented any
justification for why this motion was not filed by the deadline set out in Cal.
Code Civ. Proc. § 2031.310(c).)
The Court notes that Plaintiffs
state that both parties informed the Court that discovery issues existed at the
hearing on October 17, 2023 which led the Court to forgo the IDC process. (See
Motion to Compel Further Responses to Production of Documents, Set Three
10:22-25.) However, it was not disclosed to the Court when the responses were
propounded.
As to motion directed to LACFCD,
LACFCD has presented that there was a calendaring issue. (See ante.)
The Court declines to impose
sanctions at this time as discovery issues have been prevalent between the
parties.
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Conclusion
Plaintiffs Marci Higer and Brad
Waisbren’s Motion to Compel Defendant Los Angeles County Flood Control
District’s Responses to Requests for Production of Documents (Set Two) is MOOT.
Plaintiffs Marci Higer and Brad
Waisbren’s Motion to Compel Defendant Los Angeles County Flood Control
District’s Responses to Requests for Production of Documents (Set Three) is
GRANTED.
Plaintiffs Marci Higer and Brad
Waisbren’s Motion to Compel Defendant County of Los Angeles’ Further Responses
to Requests for Production of Documents (Set Three) is DENIED.