Judge: Steven A. Ellis, Case: 21STCV44099, Date: 2024-02-05 Tentative Ruling

Case Number: 21STCV44099    Hearing Date: February 5, 2024    Dept: 29

Plaintiff’s motions to compel further responses to Form Interrogatories (Set One) and Requests for Production (Set One)

Tentative

The motion to compel further responses to Form Interrogatories (Set One) is denied as moot.

The motion to compel further responses to Requests for Production (Set One) is denied.

Both parties’ requests for sanctions are denied.

Background

This case arises out of an alleged motor vehicle accident on April 11, 2021, near the intersection of Broadway and 73rd Street in Los Angeles.  On December 2, 2021, Plaintiff Onan Lopez Nolasco (“Plaintiff”) filed the Complaint in this action asserting causes of action for (1) negligence/negligent entrustment/negligent retention and (2) negligent act or omission of public entity or public employee against Defendants City of Los Angeles Department of Public Works Bureau of Street Services, City of Los Angeles, Joseph Sewell, and Does 1 through 50.

On February 15, 2023, Defendant City of Los Angeles (“Defendant”) filed its Answer to the Complaint.

On June 16, 2023, Plaintiff served discovery on Defendant, including Form Interrogatories (Set One) and Requests for Production (Set One).  (Movsesian Decls., ¶ 7 & Exhs. A.)  Defendant served responses on July 17, but Plaintiff contends that Defendant did not properly serve the correct email addresses.  (Id., ¶¶ 8-10 & Exhs. B.)  Defendant then rebuffed Plaintiff’s request to meet and confer, asserting that the time to file a motion to compel had passed.  (Id., ¶¶ 13-15 & Exhs. C-E.)

Plaintiff filed these motions on September 5, 2023, seeking orders to compel further responses and monetary sanctions.  After the initial hearing dates on these motions was continued, Defendant filed its oppositions, along with its own request for monetary sanctions, on January 22, 2024.  No replies were filed.

Legal Standard

“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).)

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 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) & (b)(2); Cal. Rules of Court, rule 3.1345.)

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

“If a party then fails to obey an order compelling further response to interrogatories, 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 ….  In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 ….”  (Code Civ. Proc., § 2030.300, subd. (e).)

“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).)

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

Form Interrogatories

Plaintiff initially filed his motion to compel further response to Form Interrogatories (Set One) on September 5, 2023.  On October 17, 2023, Defendant served further responses.  (Dischchyan Decl., ¶¶ 8, 14 & Exh. F.)  Plaintiff has not identified any remaining deficiencies in the interrogatory responses, whether through correspondence between counsel or in the Informal Discovery Conference (“IDC”) Form filed with the Court.  (Id., ¶¶ 8-9.)

The motion to compel further responses is DENIED as moot.

Both parties’ requests for sanctions are DENIED.  Plaintiff acted with substantial justification in bringing this motion, and, indeed, it appears that the motion was necessary to obtain the further response served on October 17.  Defendant acted with substantial justification in promptly serving further responses once Plaintiff’s meet and confer correspondence was received.  The Court finds no violation of the obligation to meet and confer by either side.

Requests for Production

Plaintiff initially filed his motion to compel further response to Form Interrogatories (Set One) on September 5, 2023.  On October 17, 2023, Defendant served further responses.  (Dischchyan Decl., ¶¶ 8, 14 & Exh. H.)  Based upon the information presented to the Court at the IDC, the only remaining dispute relates to Defendant’s argument that a document prepared by Defendant Sewell, referred to as the “April 11, 2021 Automobile Accident Report,” is a communication protected by the attorney-client privilege.

In his declaration, Defendant Sewell, a supervisor in the City’s Department of Public Works, Bureau of Street Services, states that he was required to fill out the accident report form as part of his duties, with the understanding that it would be provided to the City’s attorneys in the event of litigation.  (Sewell Decl., ¶¶ 3-4.)  The primary or dominant purpose of the form is communication with attorneys.  (Ibid.)  This is a sufficient showing of the foundational facts for the communication to be protected from disclosure by the attorney-client privilege.   (See Costco v. Super. Ct. (2009) 47 Cal.4th 725, 734-35; D.I. Chadbourne, Inc. v. Super. Ct. (1964) 60 Cal.2d 723, 737.)

Based on Plaintiff’s IDC Form, the only other Requests for Production that remain in dispute are Nos. 56 and 61.  But Plaintiff did not include Request No. 56 in the Separate Statement filed in support of the motion, and Plaintiff has not shown good cause for the production of all of the information covered by Request No. 61.

Both parties’ requests for sanctions are DENIED.  Plaintiff acted with substantial justification in bringing this motion, and, indeed, it appears that the motion was also necessary here to obtain the further response served on October 17.  In addition, although the Court has ruled in favor of Defendant on the privilege issue, Plaintiff acted with substantial justification in seeking this document.  Defendant acted with substantial justification in promptly serving further responses once Plaintiff’s meet and confer correspondence was received.  The Court finds no violation of the obligation to meet and confer by either side.

Conclusion

The Court denies the motion to compel further responses to Form Interrogatories (Set One) as moot.

The Court denies the motion to compel further responses to Requests for Production (Set One).

The Court denies both parties’ requests for sanctions on both motions.

Moving party is ordered to give notice.