Judge Steven A. Ellis, Case Number: 20STCV47697, Date: 2023-11-06 Tentative Ruling

Judge: Steven A. Ellis, Case: 20STCV47697, Date: 2023-11-06 Tentative Ruling

Case Number: 20STCV47697 Hearing Date: January 19, 2024 Dept: 29

Tentative

The Court will hear from counsel.

This is a tentative ruling, subject to complete or partial revision or modification after the Court hears argument. This is NOT a ruling of the Court and may not be cited or referred to as such.

Background

This case arises out of an accident that allegedly occurred on January 13, 2020, near the intersection of Del Amo Boulevard and Claretta Avenue. Plaintiff Sebastian Kronberger (“Plaintiff”) alleges that he was walking across Del Amo Boulevard in a crosswalk when he was hit and seriously injured by a hit and run driver.

In the operative complaint (the Second Amended Complaint or “SAC”), Plaintiff asserts a single cause of action for a dangerous condition of public property under Government Code section 835 against Defendants City of Lakewood, City of Cerritos, and Does 1 through 100. Plaintiff filed the SAC on October 21, 2021. The named defendants filed their answers on January 26 and 27, 2022.

Currently before the Court are four motions to compel filed by Plaintiff:

1. Plaintiff’s motion to compel further responses from Defendant City of Cerritos (“Defendant”) to Requests for Production (Set One), Nos. 8, 11-13, 15, 22-23, 25-28, 33, 36, and 49-50, filed on June 7, 2023. In this motion, Plaintiff initially sought monetary sanctions, but this request has been withdrawn.

2. Plaintiff’s motion to compel further responses from Defendant to Special Interrogatories (Set One), Nos. 24, 26, 29, 31, 33, 35, 38, 39-46, 48-50, 54-55, 106-113, 138-139, 154-159, 168, 175-176, filed on June 23, 2023. In this motion, Plaintiff initially sought monetary sanctions, but this request has been withdrawn.

3. Plaintiff’s motion to compel further responses from Defendant to Requests for Admission (Set One), Nos. 1-16, filed on July 10, 2023.

4. Plaintiff’s motion to compel further responses from Defendant to Form Interrogatories (Set Two), No. 17.1, filed on July 10, 2023.

On September 13, 2023, Defendant filed its oppositions to all four motions. On September 20, Plaintiff filed replies.

The parties participated in an Informal Discovery Conference on September 14. The dispute was not resolved.

The hearings on all four motions was initially set for September 27, 2023. The Court, on its own motion, continued the hearing on these motions due to a series of scheduling conflicts to January 16, 2024.

Legal Standard

“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).)

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).)

“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.” (Code Civ. Proc., § 2030.300, subd. (a).)

“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 further response to interrogatories, 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.” (Id., subd. (d).)

“On receipt of a response to requests for admission, the party requesting admission may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete. (2) An objection to a particular request is without merit or too general.” (Code Civ. Proc., § 2033.290, subd. (a).)

“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, 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.” (Id., § 2033.290, subd. (d).)

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; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(f), (h).)

Discussion

The scope of discovery under the Civil Discovery Act is broad, but it is not unlimited. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) In this case, the Court must examine (among other things) Defendant’s claims of privilege, as well as a federal statute that expressly limits discovery in court proceedings in both federal and state court.

The federal statute at issue is 23 U.S.C. section 407 (“section 407”), which states:

Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.

In this statute, Congress has clearly stated its intent to preempt state court discovery rules. Accordingly, section 407 applies to the disputes before the Court in this matter.

(The Court notes that section 407 was previously numbered as section 409 and is referred to as section 409 in some of the case law.)

At this time, the Court is considering only the discovery dispute between the parties. The Court is not making any ruling on the effect of section 407 on the admissibility of evidence at trial.

The leading case from the California Court of Appeal addressing section 407 is Ford v. City of Los Angeles (2020) 47 Cal.App.5th 277. In that case, like this one, the plaintiff contended that she was injured in a vehicle collision at an intersection that constituted a dangerous condition within the meaning of Government Code 835. (47 Cal.App.5th at p. 280.) The trial court excluded evidence under what was then section 409, and is now section 407, and the appellate court affirmed. As the Court of Appeal explained, the privilege codified in section 407 applies not only to “reports, surveys, schedules, lists, or data” compiled by a local government agency but also to the application itself that the agency submits to the federal government in support of its funding request. (Id. at pp. 284-285.)

Requests for Production

RFP No. 8

Plaintiff requests other complaints or claims for injuries occurring at the intersections “addressed in the AGENDA REPORT” from January 1, 2000 to the present. “AGENDA REPORT” is a defined term that refers to Defendant’s agenda dated June 23, 2005.

Defendant’s objection that the request seeks information regarding events at locations other than the site of the accident – a crosswalk near the intersection of Del Amo Boulevard and Claretta Avenue – is sustained. Plaintiff has not explained why complaints or claims for injuries occurring at other locations is admissible or reasonably calculated to lead to the discovery of admissible evidence.

Defendant’s other objections are overruled. Defendant has not shown that the request is unduly burdensome or oppressive. Defendant has not shown how or why complaints or claims generated by third parties are privileged, protected by the work product doctrine, or protected by the section 407 privilege (even if, as may be the case, these documents were received from third parties and then subsequently included within an application for federal funds). The scope of time of Plaintiff’s request is long but reasonable under all of the circumstances here. Defendant has not shown why responsive information should be redacted from its partial response/summary referred to as Exhibit 4. Defendant’s other objections lack merit.

Plaintiff has shown good cause. His motion to compel is GRANTED IN PART.

RFP No. 11

Plaintiff requests a copy of the AGENDA REPORT. The agenda report is, according to Plaintiff, “a 2-page document prepared by city employees for the purpose of making a recommendation to City Council at a city council meeting on 6/23/05 to award a contract to install the LED lights along the crosswalk.” Plaintiff further asserts that the LED system was in fact installed in 2005 but became inoperable in 2017, more than two years before the accident.

Defendant’s objections are overruled. Defendant has not shown that the request is unduly burdensome or oppressive. Defendant has not shown how or why a report prepared for a city council meeting is subject to the attorney-client privilege or protected by the work product doctrine. Defendant has not shown how or why a report prepared for a city council meeting is protected by the section 407 privilege (even if, as may be the case, the document may have been informed by information that was subsequently included within an application for federal funds). Defendant’s other objections lack merit.

Plaintiff has shown good cause. His motion to compel is GRANTED.

RFP Nos. 12, 13, and 15.

Plaintiff requests the recordings of the City Council meeting on June 23, 2005, the minutes of the meeting, the transcript of the meeting, the records of Defendant’s approval of the installation of LED lights at the crosswalk. The dispute relates to production of the minutes and transcript of the meeting and the recorded portion of the meeting relating to the AGENDA REPORT.

Defendant’s objections are overruled. Defendant has not shown that the request is unduly burdensome or oppressive. Defendant has not shown how or why the minutes, transcript, recorded portion of a city council meeting, or record of approval is subject to the attorney-client privilege or protected by the work product doctrine. Defendant has not shown how or why the minutes, transcript, recorded portion of a city council meeting, or record of approval is protected by the section 407 privilege. Defendant’s other objections lack merit.

Plaintiff has shown good cause. His motion to compel is GRANTED.

RFP Nos. 22-23.

Plaintiff requests documents reflecting safety studies of the crosswalk and documents from the Community Safety Commission that Defendant considered in connection with the installation of the LED lights at the crosswalk.

It is unclear to the Court, on this record, whether Defendant included in a privilege log any documents responsive to these requests as to which any privilege is asserted. It is also unclear to the Court whether Defendant is asserting that any such information was complied or collected for a purpose that would bring responsive documents within the scope of section 407, and what evidence in the record supports any such assertion.

The Court will hear from counsel.

RFP No. 24.

This request is included in Plaintiff’s separate statement but is not identified in the notice of motion and motion to compel.

RFP Nos. 25-26, 28

Plaintiff requests records of “vehicle speed studies” and “vehicle volume counts” at the location of the accident, and Traffic Safety Management Reports, from January 1, 2000, to the present.

Defendant’s objections are overruled. Defendant has not shown that the request is unduly burdensome or oppressive. Defendant has not shown how or why speed studies, volume counts, or reports are subject to the attorney-client privilege or protected by the work product doctrine. Defendant has not shown that any such speed studies, volume counts, or reports were complied or collected for a purpose that would bring responsive documents within the scope of section 407. The scope of time of Plaintiff’s request is long but reasonable under all of the circumstances here. Defendant’s other objections lack merit.

Plaintiff has shown good cause. His motion to compel is GRANTED.

RFP No. 27

Plaintiff requests records of accidents at the crosswalk from January 1, 2000, to the present.

Defendant’s objections are overruled. Defendant has not shown that the request is unduly burdensome or oppressive. Defendant has not shown how or why such records are subject to the attorney-client privilege or protected by the work product doctrine. Defendant has not shown that any such records were complied or collected for a purpose that would bring responsive documents within the scope of section 407. The scope of time of Plaintiff’s request is long but reasonable under all of the circumstances here. Defendant’s other objections lack merit.

Plaintiff has shown good cause. His motion to compel is GRANTED.

RFP Nos. 33 and 36

Plaintiff requests records regarding “the installation of the pedestrian push buttons” and the “pedestrian audible signals” that “were in place” at the date and location of the accident.

Plaintiff has not shown good cause for the requested records. As the Court understands the request, it appears that Plaintiff recognizes that push buttons and audible signals were in place at the time of the accident and is seeking records relating to the installation of those buttons and signals. Plaintiff has not made (either in its Separate Statement or otherwise) a sufficient showing of good cause for the discovery of such records.

RFP Nos. 49-50

Plaintiff requests records regarding complaints regarding the crosswalk for the ten-year period before the LED lights were installed (No. 49) and since the LED lights “became non-operational” (No. 50).

Defendant’s objections are overruled. Defendant has not shown that the request is unduly burdensome or oppressive. Defendant has not shown how or why complaints from third parties are subject to the attorney-client privilege, protected by the work product doctrine, or protected by the section 407 privilege (even if, as may be the case, some of these complaints were received from third parties and then subsequently included within an application for federal funds). The scope of time of Plaintiff’s request is long but reasonable under all of the circumstances here. Defendant has not shown why responsive information should be redacted from its partial response/summary referred to as Exhibit 4. Defendant’s other objections lack merit.

Plaintiff has shown good cause. His motion to compel is GRANTED.

Special Interrogatories

SROG Nos. 24, 26, 29.

Plaintiff seeks the identity of persons who were involved in the preparation of the AGENDA REPORT and information regarding the involvement of Vince Brar and Doug Kellam in the preparation of the AGENDA REPORT.

Ascertaining the identity of potential witnesses, and the involvement of each potential witness, is a core function of discovery in civil cases. Defendant’s assertions of privilege and work product protection lack merit. Defendant’s other objections lack merit.

Plaintiff’s motion to compel is GRANTED.

SROG No. 33

Plaintiff asks Defendant what factors it considered in determining that pedestrians needed “protection” at certain locations.

Plaintiff’s motion to compel is GRANTED.

SROG No. 35

Plaintiff asks what Vince Brar reported to the City Council on June 23, 2005 regarding certain information.

Plaintiff’s motion to compel is GRANTED.

SROG No. 36

This interrogatory is included in Plaintiff’s separate statement but is not identified in the notice of motion and motion to compel.

SROG No. 38

Plaintiff asks Defendant to identify all documents “related to” its response to Special Interrogatory No. 37.

It is unclear to the Court whether Special Interrogatory No. 37 is included in the extensive record before the Court, and, if so, where it is and what information it seeks.

The Court will hear from counsel.

SROG Nos. 39-46, 48-50

These interrogatories are included in the notice of motion and motion to compel but not in the Separate Statement.

Plaintiff’s motion to compel is DENIED. (Cal. Rules of Court, rule 3.1345.)

SROG No. 54

Plaintiff asks Defendant why it made the decision to install LED lights at the crosswalk.

Defendant asserts the deliberative process privilege of Government Code section 6255. The Court will hear from counsel on this issue.

Defendant’s other objections are overruled. Defendant has not shown how or why the information requested is subject to the attorney-client privilege or protected by the work product doctrine. Defendant has not shown that such information is within the scope of section 407. Defendant’s other objections lack merit.

SROG No. 55

Plaintiff asks Defendant to identify all documents discussing the reasons for installing LED lights at the cross walk.

Defendant does not assert the deliberative process privilege in response to this interrogatory.

The Court will hear from counsel on whether the requested information is within the scope of section 407.

SROG Nos. 106-113

Plaintiff asks whether Defendant “remove[d]” the pedestrian push buttons “that were in place on January 13, 2020” at the crosswalk (No. 106) and then asks Defendant to identify who removed the buttons (No. 107), when the buttons were removed (No. 109), why they were removed (Nos. 110 and 112), and to identify documents that support the response to Nos. 106 and 112 (Nos. 108 and 113) and that describe the reasons for the removal (No. 111).

Defendant’s objections are overruled. Defendant has not shown how or why the information requested is subject to the attorney-client privilege or protected by the work product doctrine. Defendant has not shown that such information is within the scope of section 407. Evidence of subsequent remedial measures is not admissible for certain purposes at trial, but it can be admissible for other purposes, and it is discoverable at this point of this case under these circumstances. Defendant’s other objections lack merit.

Plaintiff’s motion to compel is GRANTED.

SROG Nos. 120-125.

These interrogatories are included in Plaintiff’s separate statement but are not identified in the notice of motion and motion to compel.

SROG Nos. 138

Plaintiff asks Defendant to identify all documents that support its response to Special Interrogatory No. 137.

It is unclear to the Court whether Special Interrogatory No.1 37 is included in the extensive record before the Court, and, if so, where it is and what information it seeks.

The Court will hear from counsel.

SROG No. 139

This interrogatory is included in the notice of motion and motion to compel but not in the Separate Statement.

Plaintiff’s motion to compel is DENIED. (Cal. Rules of Court, rule 3.1345.)

SROG Nos. 154-155

Plaintiff asks whether reinstallation of LED lights at the cross walk was addressed by Defendant after the 2017 repaving project (No. 154) and asks Defendant to identify documents supporting the response to No. 154 (No. 155)

Plaintiff’s motion to compel is GRANTED.

SROG Nos. 156-159

These interrogatories are included in the notice of motion and motion to compel but not in the Separate Statement.

Plaintiff’s motion to compel is DENIED. (Cal. Rules of Court, rule 3.1345.)

SROG No. 168

Plaintiff asks whether Defendant has received any complaints from the public about the safety of the intersection of Del Amo Boulevard and Claretta Avenue since January 1, 2000.

It does appear that Defendant has provided a sufficient and code-compliant response. The interrogatory asks a yes-or-no question, and Defendant has provided information that appears to make it clear that the answer is “yes.”

Plaintiff’s motion to compel is DENIED.

SROG Nos. 175-176

Plaintiff asks Defendant to identify all crossing guard employees or volunteers who provided services at the intersection of Del Amo Boulevard and Claretta Avenue from January 1, 2005 to the present.

Plaintiff’s motion to compel is GRANTED.

Requests for Admission Nos. 1-16 and Form Interrogatory No. 17.1

In these requests for admission, and in subdivision (b) of Form Interrogatory No. 17.1, Plaintiff seeks information regarding the authenticity and admissibility of the AGENDA REPORT, a video of a City Council Meeting, and video clips of a City Council meeting.

Defendant’s objections are overruled. Defendant has not shown how or why a report or the video of some or all of a city council meeting is subject to the attorney-client privilege or protected by the work product doctrine. Defendant has not shown how or why a report or the video of some or all of a city council meeting is protected by the section 407 privilege. Defendant’s other objections lack merit.

Plaintiff’s motions to compel are GRANTED.

Conclusion

Plaintiff’s motions to compel are GRANTED in part and DENIED in part.

Moving party to give notice.