Judge: Steven A. Ellis, Case: 20STCV30377, Date: 2024-01-22 Tentative Ruling
Case Number: 20STCV30377 Hearing Date: April 10, 2024 Dept: 29
Motion for an Order Compelling Defendant to Produce the
Tractor/Trailer for Inspection.
Tentative
The motion is granted in part and denied in
part.
Background
On August 11, 2020, Ramiro Martinez Gomez
(“Plaintiff”) filed a complaint against Damco International; Damco Distribution
Services, Inc.; Damco USA, Inc.; Victor Flores; and Does 1 through 100,
asserting causes of action for motor vehicle negligence and general negligence arising
from a forklift accident occurring on August 20, 2018.
On November 18, 2021, Plaintiff filed requests
to dismiss the claims in the complaint against Damco International and Damco
USA, Inc.
On November 29, 2021, Defendants Damco Distribution
Services, Inc. (“Defendant”) and Victor Flores filed answers to the complaint.
As is relevant to this motion, on June 22,
2022, Plaintiff served Defendant with a “Notice of Visual Inspection” requesting
inspection of (in effect) the accident site and the vehicles involved. (Weinreb Decl., ¶ 2 & Exh. A.) After some correspondence between counsel,
Plaintiff served a Second Notice of Visual Inspection on August 8, 2022,
seeking essentially the same scope of inspection. (Id., ¶ 4 & Exh. C.) Defendant served objections (only) on
September 7, 2022. (Id., ¶ 5
& Exh. D.)
The parties continued to negotiate, and Defendant
ultimately agreed to permit an inspection.
(Id., ¶ 11 & Exh. I.) Plaintiff
served Defendant with a (Third) “Notice of Inspection” on February 1, 2023,
again seeking essentially the same scope of inspection. (Id., ¶ 12 & Exh. J.) Defendant did not serve a response but agreed
in correspondence to allow the inspection, subject to a written “Terms of
Site-Inspection” sent in advance of the inspection date (Id., ¶ 14 & Exh. L; Cosgrove
Decl., ¶¶ 7-10, 15 & Exhs. 1, 3.)
An inspection occurred on February 8, 2023. At one point there was apparently some
dispute about the scope of the inspection, but it appears that both sides now agree
that Plaintiff inspected the accident site but not any vehicles (whether the
original vehicles involved in the accident or similar vehicles). (Hammarstrom Decl., ¶ 5; Cosgrove Decl., ¶
4.)
On December 7, 2023, Plaintiff served Defendant
with a (Fourth) “Demand for Inspection.”
(Weinreb Decl., ¶ 17 & Exh. M.).
In the Demand, Plaintiff requested inspection of: (1) “The yard truck
which Victor Flores was operating towing Lexman Trailer 53403L … on December
10, 2018” or “an exemplar with the same specifications” and (2) “The Lexman trailer
53403L that was being towed by Victor Flores … on … December 10, 2018” or “an
exemplar with the same specifications.”
(Id., Exh. M.)
Defendant served objections (only) to the (Fourth)
Demand for Inspection on December 22, 2023.
(Id., Exh. Q.)
On January 12, 2024, Plaintiff filed this
motion to compel. Plaintiff also seeks
sanctions. Defendant filed an opposition
on March 27, and Plaintiff filed a reply on April 2.
Legal Standard
Motion
to Compel Initial Responses
A party must
respond to requests for production of documents within 30 days after service.
(Code Civ. Proc., § 2031.260, subd.(a).) If a party to whom requests for
production of documents are directed does not provide timely responses, the
requesting party may move for an order compelling response to the demand. (Id.,
§ 2031.300, subd. (b).) There is no time limit for a motion to compel initial
responses, and no meet and confer efforts are required. (See id., §
2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare
Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement
be filed. (Cal. Rules of Court, rule 3.1345(b)(1).) In addition, a party who fails to provide a
timely response generally waives all objections. (Code Civ. Proc., § 2031.300, subd. (a).)
When a party moves
to compel initial responses to requests for production, “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 [the motion],
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.” (Code Civ. Proc.,
§ 2031.300, subd. (c).)
Motion to Compel Further Responses
“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.” (Code Civ. Proc.,
§ 2031.310, subd. (a).)
Notice of a motion to compel further responses must be 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
propounding party and the responding party have agreed in writing.” (Id.,
subd. (c).)
A motion to compel further responses must set forth specific
facts showing good cause for the discovery and must be accompanied by a meet-and-confer
declaration and a separate statement or, in the discretion of the Court, a
“concise outline of the discovery request and each response in dispute.” (Id.,
subd. (b)(1)-(3); Cal. Rules of Court, rule 3.1345.)
“[T]he 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.” (Code Civ. Proc., § 2031.310, subd. (h).)
Motion to Compel Production/Inspection
“If a party filing a response to a demand for inspection,
copying, testing, or sampling … thereafter fails to permit the inspection,
copying, testing, or sampling in accordance with that party’s statement of
compliance, the demanding party may move for an order compelling
compliance.” (Code Civ. Proc., §
2031.320, subd. (a).) The motion to
compel production or inspection in accordance with a statement of compliance is
not subject to a 45-day rule, and the statute does not require an attempt to
resolve the matter informally. (See 2
Weil & Brown, California Practice Guide: Civil Procedure Before Trial [The
Rutter Group 2023], ¶ 8:1508.1.)
“[T]he 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 compliance with 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.” (Code Civ. Proc., § 2031.310, subd. (b).)
Sanctions
In Chapter 7 of the
Civil Discovery Act, Code of Civil Procedure section 2023.030, subdivision (a)
provides, in pertinent part, that the court may impose a monetary sanction ordering
that any person “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.” A “misuse of
the discovery process” includes (among other things) failing to respond or to
submit to an authorized method of discovery; making, without substantial
justification, an unmeritorious objection to discovery; making an evasive
response to a discovery request; disobeying a court order to provide discovery;
and making or opposing, unsuccessfully, a motion to compel without substantial
justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).)
Discussion
As an initial matter, the Court notes that it
is less than clear what relief Plaintiff is seeking. Plaintiff states that it seeks an order
compelling Defendant “to make available and produce” for inspection the truck
and trailer described in its papers.
The Civil Discovery Act provides for three separate
types of motions relating to inspection demands: (1) a motion to compel a code
compliant initial written response (when no response has been provided) (Code
Civ. Proc., § 2031.300); (2) a motion to compel a further response (when a
response has been provided but it is not code compliant or contains
unmeritorious objections) (Code Civ. Proc., § 2031.310); and (3) a motion to order
an inspection or production in accordance with a response stating that the
inspection or production will be allowed (Code Civ. Proc., § 2031.320).
At various times in his memorandum, Plaintiff
invokes each of these three alternative forms of relief. On pages 6-7, Plaintiff refers to section 2031.300
(which applies when no response has been provided). On pages 7-8, Plaintiff argues that Defendant
has not provided a code compliant statement of an inability to comply (which
suggests that he is seeking to compel a further response under section
2031.310). And on pages 8-9, Plaintiff argues
that he is seeking to obtain an inspection that Defendant has already agreed to
allow, citing section 2031.320.
The Court begins its analysis at the same place
that Plaintiff begins his motion and his memorandum: with a request for an
order compelling the inspection.
(Motion, at 2:2-8; Memorandum, at 3:2-6.)
Under the Civil Discovery Act, such an order
can be issued only under section 2031.320.
It cannot be issued pursuant to section 2031.300 (under which a party
can be ordered to provide an initial written response to a request for
inspection) or section 2031.310 (under which a party can be ordered to provide
a further written response to a request for inspection). Stated in other terms, sections 2031.300 and
2031.310 provide for written responses; only section 2031.320 provides for an
order compelling the act of inspection (or production).
Plaintiff has not, however, shown any basis
for relief under section 2031.320. To
obtain an order compelling an inspection under section 2031.320, the moving
party must show that the responding party has provided a verified discovery response
stating, under oath, that the inspection will be permitted; in that case, and
only in that case, the moving party may seek and obtain “an order compelling
compliance.” (Code Civ. Proc., §
2031.320, subd. (a).)
Accordingly, to the extent that Plaintiff is
seeking relief under section 2031.320, the motion is denied.
Plaintiff’s motion can also be reasonably seen
as seeking to compel further responses from Defendant under Code of Civil
Procedure section 2031 – and, indeed, this is how Defendant apparently viewed
the motion and framed its opposition. (See
Opp. at pp. 3-9.) Defendant asserts essentially
four objections to the inspection demand: (1) Plaintiff has already conducted
an inspection; (2) the requested inspection is impossible; (3) the requested
inspection would be unduly burdensome; and (4) the inspection demand is, as
phrased, overly broad. The Court
addresses each in turn.
First, the Court overrules the objection
based on the prior inspection. (Opp. at
pp. 3-4, 5-6, The prior inspection, all parties agree, was limited to the site
of the accident; no vehicles were inspected.
(Hammarstrom Decl., ¶ 5; Cosgrove Decl., ¶ 4.) Defendant argues that Plaintiff’s written
demand included a vehicle inspection; that Defendant agreed (although not in a
formal response); and that the only reason that a vehicle inspection did not
occur in February 2023 was that Plaintiff did not request to inspect any vehicles
during the inspection. (Cosgrove Decl.,
¶¶ 3-4, 8-11, 16-17.) But Defendant
required Plaintiff to agree to the “Terms of Inspection,” which expressly limit
the scope of the inspection to the location of the accident. (Id., Exh. 1.) Particularly in the absence of a formal
response to the inspection demand (as required by the Code of Civil Procedure),
Plaintiff could reasonably have construed, and did construe, the “Terms of
Inspection” document to exclude any vehicle inspection. (Hammarstrom Decl., ¶ 5.) Moreover, Defendant has submitted a
declaration stating that the trailer was not at the yard at the time of the
inspection and the towing vehicle was unknown.
(Teems Decl., ¶¶ 5-6, 8.) This
indicates that it was not the case, as Defendant suggests, that Plaintiff could
have inspected the vehicles in February 2023 if he had asked to do so.
Second, the Court overrules the objection
based on the reported impossibility of conducting a vehicle inspection. This is not a proper objection. Rather, if a responding party is unable to comply
with a demand for inspection, the responding party must say so in a verified
response (not an objection) that complies with all requirements of Code of Civil
Procedure sections 2031.210, 2031.230, and 2031.250.
Third, the Court overrules the objection
based on undue burden. The Court
understands that an inspection (assuming one is possible, which Defendant says
it is not) would create a significant burden on Defendant (see Teems Decl., ¶
9), but the Court finds that the probative value of the information sought in
discovery substantially outweighs the burden that allowing the inspection (if
it is even possible) would impose on Defendant.
Fourth, the Court overrules the objection
based on overbreadth. The inspection
demand properly and reasonably sets forth the scope of the inspection demand
with a sufficient degree of particularity.
(Code Civ. Proc., § 2031.030, subd. (c).)
Accordingly, construing Plaintiff’s motion as
a motion to compel a further written response, the motion is granted.
Next, it is at least conceivable that
Plaintiff’s motion could also be construed as a motion to compel an initial
response to the (Third) Notice of Inspection served on February 1, 2023. (Weinreb Decl., ¶ 12 & Exh. J.) The Court declines to do so, however, as Plaintiff
issued a (Fourth) Demand for Inspection that was, presumably, designed to supersede
the (Third) Notice of Inspection. If
Plaintiff sought to compel an initial response to the (Third) Notice of
Inspection, he could have done so at any time, without the need to issue a
further notice or demand.
Finally, the Court denies Plaintiff’s request
for sanctions. Given the extensive
history here, the prior inspection that occurred in February 2023, and the ambiguity
regarding the terms and scope of that prior inspection, the Court finds that Defendant
acted with substantial justification in objecting to the (Fourth) Demand for
Inspection and opposing the motion to compel.
Conclusion
The Court GRANTS Plaintiff’s motion in part.
The Court ORDERS Defendant to provide a written,
verified, code-compliant response, without objection, to Plaintiff’s (Fourth)
Demand for Inspection, served on or about December 7, 2023, within 21 days of
notice.
The Court DENIES Plaintiff’s motion in all
other respects.
Moving party is
to give notice.