Judge Stephen P. Pfahler, Case 21STCV20229 2022-07-26 Tentative Ruling

On October 18, 2020, Plaintiff Eric Finn was driving a 2015 Nissan Sentra vehicle, with plaintiff Asia Finn, and Murdewiyanti and Talent James Finn on SR-14, when the vehicle began decelerating, even though the tachometer showed the engine continued to operate. Eric attempted to reach the shoulder, but was only able to bring the vehicle to the “number 5 lane” before the vehicle completely stopped. “Approximately 20-30 seconds” after coming to a stop, “a 13-ton flatbed tow truck” owned and/or operated by the “Tow Co.” defendants and driven by defendant Jose Bravo collided with the Finn vehicle. The collision led to the deaths of Murdewiyanti and Talent James.

Plaintiffs allege defendant Bravo was driving with a suspended license due to a prior driving under the influence charge. Plaintiff also alleges a prior incident with a driver for the subject “Tow Co.” defendants.

As to Defendant Nissan North America, Inc. (Nissan) Plaintiffs allege that the sudden deceleration was the result of a known defect within the transmission, which Nissan failed to correct. Plaintiff lists a number of vehicles and models allegedly utilizing the subject transmission, and reports of prior incidents reported to the National Highway Traffic Safety Administration (NHTSA).

On May 28, 2021, Plaintiffs filed a 238 paragraph complaint (plus exhibits) for Strict Product Liability: Design Defect and Failure to Warn, Negligence (twice), Breach of Implied Warranty, Negligence Per Se, Intentional Infliction of Emotional Distress, Wrongful Death, Survival Action, and Unfair Business Practices (Business and Professions Code section 17200). On August 18, 2021, Plaintiffs dismissed Nissan from the intentional infliction of emotional distress cause of action.

On September 28, 2021, Department 31 transferred the action to Department 49. On December 6, 2021, the court granted the motion to strike the complaint. On January 5, 2022, Plaintiffs filed their first amended complaint for Strict Product Liability: Design Defect and Failure to Warn, Negligence (twice), Breach of Implied Warranty, Negligence Per Se, Intentional Infliction of Emotional Distress, Wrongful Death, Survival Action, and Unfair Business Practices (Business and Professions Code section 17200). Nissan is the only named defendant in the first, second, third, and ninth causes of action, while the “Tow Co.” defendants are the only named defendants in the fourth, fifth and sixth causes of action. All defendants are jointly named in the seventh, eighth, and ninth causes of action.

Plaintiff Eric Finn moves to compel further responses on Request for Production of Documents (set two), numbers 1-15, 26-27, 35, and 40, from Defendant Automobile Club of Southern California. Plaintiff additionally or alternatively moves for issue and evidentiary sanctions precluding certain subject matter allegedly at the core of the disputed discovery, as well a request for $4,561.65 in monetary sanctions.

The motion comes following the May 5, 2022, order compelling further responses to said requests for production of documents. In its prior order, the court summarized the relevant requests as follows: “numbers 1-2, contracts and agreements with other tow truck operator entities; number 3, service provided to Automobile Club of Southern California by other tow company operating entities; numbers 4-15, contracts and agreements between Automobile Club of Southern California and the tow company defendants in the instant action I-5 Towing and Recovery, LLC, MV Towing, Inc., HD Towing, Inc., California Towing, Inc. and Rancho Cucamonga Towing, Inc.; numbers 26-27, accidents involving the named tow trucks while servicing Automobile Club of Southern California customers; number 35, insurance policy information for Castaic Towing, Inc. involved in the subject collision; and, number 40, communications between Automobile Club of Southern California and the tow defendants in regards to the incident.”

The court found Plaintiff’s presented a valid basis for production of the documents on numbers 1-5 based on the unchallenged vicarious liability theories of liability against Automobile Club of Southern California. The court also noted a stipulated protective order between the parties for production, and therefore presumed discovery would occur on the subject items. On numbers 26-27, the court found insufficient support for the objection based on the inability to readily access the information. The court therefore ordered a substantive response compiled from available data. For number 35, the motion was denied based on the agreement for supplemental production of the Navigators Insurance policy. On number 40, the court granted the motion based on unsupported objections, but found the meet and confer effort insufficient. The court therefore ordered production of non-privileged communications in a time frame to be determined by the parties determined by a meaningful meet and confer effort, with a privilege log for any withheld documents not subject to production under the protective order.

Plaintiff admits to the production of “nearly 300 pages of documents” following the May 5, 2022 order, but maintains the production only pertained to two categories of ordered document production: 211 of said pages comprising the Everest Indemnity Insurance Company policy, and 84 pages of a document entitled “Independent Contractor Roadside Assistance Contract” for the various tow truck defendants, except Ahmad Koudeimati. [Declaration of Jeffrey Armour, ¶ 12.] The contractual agreements are for a shorter period than the five years sought by Plaintiff. [Id., ¶ 14.] Although not specifically identified by document category number, Plaintiff also alleges the order requiring production of all agreed upon documents includes the agreement between the parties for training manuals. [Id., ¶ 18.][1]

ACSC in opposition represents that all contracts were produced that were in effect at the time of the collision. ACSC denies any requirement to produce five years preceding documents. Even if the court considers the argument, ACSC challenges any relevance and necessity for five years of production. ACSC also maintains that the dispute over Ahmad Koudeimati was not part of numbers 1-5, but a part of the dispute on numbers 16-17, which is not identified in the subject motion. ACSC distinguishes Ahmad Koudeimati on grounds that 1-5 only pertains to “other tow truck operator entities” and “between [ACSC] and the tow company defendants in the instant action.” On numbers 26 and 27, ACSC represents that supplemental responses were provided indicating no responsive available information. For number 35, ACSC challenges the necessity of unredacted documents on the Everest National insurance policy. Finally, on number 40, ACSC maintains Plaintiff continues to inadequately meet and confer regarding a time frame for production. Regardless, ACSC provided a supplemental response regarding the lack of responsive documents.

Plaintiff in reply reiterates the basis of the sought after discovery. Plaintiff references specific call log information as a basis for sanctions. Plaintiff also challenges the production the redacted insurance policy. Plaintiff then seeks to compel production of numbers 23 and 24, training manuals, though neither item was identified in the subject motion. Plaintiff relies on the prior order and the promise of production.

The court first considers the request for evidentiary and issue sanctions. “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326; Department of Forestry & Fire Protection v. Howell¿(2017) 18 Cal.App.5th 154, 191 [“Terminating sanctions are to be used sparingly because of the drastic effect of their application.”].) “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.)

Evidence or issue sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, or a prior discovery order would be futile. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1428.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252- 253.)

The court reviewed the supplemental responses. As addressed below, the court finds the supplemental responses substantially comply with the prior order for production. Any dispute over the language in the order regarding the scope of production insufficiently justifies the imposition of evidentiary and/or issues sanctions. The court finds insufficient prejudice to Plaintiffs, in that other avenues of discovery remain. Nothing in the motion establishes a true hindrance to presentation of the liability arguments as a result of this specific set of items.

For numbers 1-5, ACSC’s argument denying applicability to Ahmad Koudeimati runs directly contrary to Plaintiff, who maintains request number 1 specifically identifies Ahmad Koudeimati. The original sequence in fact lacked specific identification of Ahmad Koudeimati in the list of operators. The only specific reference to Ahmad Koudeimati comes in paragraph two of the Declaration of Jeffrey Armour in support of the original motion, whereby Ahmad Koudeimati is identified among the “other tow entity defendants.” [Armour Declaration in Suport of Motion to Compel Further Responses, ¶ 2.] Since numbers 15 and 16 were never part of any motion, the court cannot verify the representations of ACSC that Ahmad Koudeimati was exclusively addressed in said items.

While Ahmad Koudeimati was not specifically identified in the court summary of the tow entity defendants, it’s clear Ahmad Koudeimati is part of the identified group of “tow” defendants. The court therefore rejects ACSC’s argument that Plaintiff needed to specifically identify Ahmad Koudeimati. The argument is disingenuous given the production of the contract information on the other persons and entities, yet Ahmad Koudeimati somehow remains a unique person outside the scope of the request. Nothing in the opposition in any way establishes that Ahmad Koudeimati operates as something other than an “other tow entity defendant.” ACSC is therefore ordered to compel further responses as to Ahmad Koudeimati.

As for the five-year time frame however, the court finds no support for this request. While the court deferred to the parties to stipulate their own terms, nothing in the motion presented said time frame for the court to consider. The core of the subject discovery dispute arises from the right to conduct discovery into the vicarious liability allegations. The operative contracts in place at the time of the collision are entirely relevant and directly on point for said discovery. Even in considering an expanded time frame argument after the original motion, the court finds insufficient support compelling an expanded requirement. The motion is therefore denied as to the extended time frame.

On numbers 26-27, the court finds the supplemental responses sufficient. The court overruled the objections regarding inability to compile the date. ACSC now represents said information does not exist. The response is code compliant. The motion is therefore denied. Aspersions and doubt as to the veracity of the representation raised in the reply will not constitute a legal basis to compel further responses.

On number 35, Plaintiff contends the Navigators Insurance documents contain improperly redacted information regarding named insureds, additional insureds, and other “content” of the policy. Plaintiff also cites to Form Interrogatory response to number 4.1, whereby a policy from Navigators Specialty Insurance Company was also disclosed. The relevance and entitlement to production of the policy is not in question. The motion and reply lacks specific address of the deficiencies with the redacted copy, and instead simply presents a broad based conclusive argument for all inclusive production. The redacted pages include an omission of the actual premium, and the additional named insureds, though ACSC is identified. It’s not clear from the motion how the premium or the identification of any and all additional insureds other than ACSC in any supports the argument for the vicarious liability theory and relevant insurance coverage information. The court therefore denies the motion.

On number 40, the court finds no specific argument for further production. Notwithstanding ACSC’s arguments regarding the subsequent meet and confer efforts, the supplemental response provides a code compliant answer of no applicable documents. The motion is therefore denied.

Finally, on numbers 23 and 24, the court declines to consider any new argument raised in the reply, and neither previously noticed in the motion or even addressed. The motion is denied.

In summary, the court orders production of any operative contractual documents relating to Ahmad Koudeimati at the time of the collision, consistent with the other “tow defendants” within 20 calendar days from the date of this Court’s ruling. The remainder of the motion to compel further responses is denied. The motion for issue and evidentiary sanctions is also denied. The court declines to impose either alternative monetary sanctions in favor of Plaintiff, or sanctions in favor of ACSC against Plaintiff. (Code Civ. Proc., § 2031.310, subd. (i).)

The court docket also shows four more motions to compel further responses either reserved or scheduled beginning on August 2, as well as five additional motions to compel. The court notes this is the second highly contested, voluminous motion presented. The court reserves the right to set an OSC re Referral to a Discovery Referee if the volume of discovery motions within the short time frame presented remains on calendar and/or continue the motions to less congested dates on the calendar.

[1]ACSC represents 296 pages of documents were produced. It’s not clear from either the motion or opposition what the remaining 11 pages of documents comprised. The court therefore assumes the documents relate to the “two categories” of production identified by Plaintiff.