Judge: Steven A. Ellis, Case: 21STCV46825, Date: 2024-01-11 Tentative Ruling
Case Number: 21STCV46825 Hearing Date: February 8, 2024 Dept: 29
Motion for an Order Compelling Plaintiff to Produce His
Vehicle for Inspection.
Tentative
The motion is granted in part and denied in
part.
Background
This case arises out of an alleged automobile
accident on January 2, 2020, at or near the Port of Long Beach in Long Beach,
California. On December 23, 2021, Plaintiff
Alfred Leon Ackerson (“Plaintiff”) filed the Complaint in this action asserting
a cause of action for negligence against Defendants Shippers Transport Express,
Jose Cruz, and DOES 1-50, for negligence/negligence per se cause of action.
On July 25, 2022, Defendants Shippers
Transport Express, Inc. and Jose Cruz (collectively, “Defendants”) filed their
Answer to the Complaint.
On May 31, 2023, Defendants served Plaintiff
with a demand for inspection of a vehicle.
(Warren Decl., ¶ 4 & Exh. A.)
Plaintiff did not serve a response to the discovery. (Id., ¶ 6.) Defendants’ investigator apparently obtained
information that the vehicle may be in the possession of non-party Sierro
Orlando in Baldwin Park, California, but Mr. Orlando reportedly old Defendants’
investigator that he did not have possession of the vehicle. (Id., ¶¶ 7-8.)
On
January 3, 2024, Defendants filed this motion seeking an order compelling
Plaintiff to produce the vehicle for inspection.
Plaintiff
filed his opposition on January 9.
Although Plaintiff presents evidence of various email communication
regarding the inspection of the vehicle, Plaintiff does not attach any evidence
of a verified, written, code-complaint response to Defendants’ inspection
demand. (See Davidson Decl., Exh. A.;
Gonzalez Decl., Exhs. A-B.)
Legal
Standard
A party must respond to demands for inspection within
30 days after service. (Code Civ. Proc., § 2031.260, subd.(a).) If a party to
whom the demand is directed does not provide a timely response, 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 demands
for inspection, “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).)
In
Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.010,
subdivision (d), defines “[m]isuses of the discovery process” to include
“[f]ailing to respond to or to submit to an authorized method of
discovery.” Where a party or attorney
has engaged in misuse of the discovery process, the court may impose a monetary
sanction in the amount of “the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.030, subd.
(a).)
Discussion
As an initial
matter, the moving papers were filed late, based on the initial hearing
date. The Court, because of its own
scheduling issues (not because of the late filing), continued the hearing. Accordingly, the Court will now exercise its
discretion to consider the late filed motion.
The relief that
Defendants are seeking, however, is not clear.
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 compel compliance with a response
stating that the inspection will be allowed (Code Civ. Proc., § 2031.320).
Here, Defendants
state in their motion that they are seeking an order under section
2031.300. That is the section for a
motion to compel an initial response, and, on this record, that motion has
merit. Plaintiff was served with
discovery (an inspection demand) and never served any response. (Warren Decl., ¶¶ 4-8 & Exh. A.) Defendants are entitled to receive a code
compliant, verified written response to their inspection demand.
But then Defendants
go on to state in their motion that they are also seeking (1) an order
compelling Plaintiff to produce the vehicle for inspection; and (2) an order
compelling non-party Sierra Orlando to comply with a subpoena to produce the
vehicle for inspection. There is no
merit in either of these requests.
First, the request
for an order compelling Plaintiff to produce the vehicle for inspection is
premature – such an order is appropriate under the Civil Discovery Act only
after a party has agreed to allow an inspection in a verified response and then
has failed to do so. Here, in contrast,
Plaintiff has not even provided an initial response.
Second, there is
no basis for an order against non-party Sierra Orlando. Defendants have not provided evidence of a
properly served subpoena on Mr. Orlando.
Nor have Defendants served Mr. Orlando with this motion.
Accordingly, the
request for an order compelling an initial response to the inspection demand is
GRANTED. All other relief sought in the motion
is DENIED.
Conclusion
The
Court GRANTS Defendants’ request for an initial response to their inspection
demand.
The
Court ORDERS Plaintiff to serve a verified, written, code-complaint response to
the inspection demand, without objection, within 10 days of notice.
In all
other respects, the Court DENIES Defendants’ motion.
Moving
party is ordered to give notice.