Judge: Steven A. Ellis, Case: 22STCV04910, Date: 2023-12-08 Tentative Ruling

Case Number: 22STCV04910    Hearing Date: April 8, 2024    Dept: 29

Defendant’s Motion to Compel Further Responses to Special Interrogatories (Set Three)
Defendant’s Motion to Compel Further Responses to Requests for Production (Set Three)

Tentative

The motions are denied.

Defendant’s requests for sanctions are denied.

Plaintiff’s requests for sanctions are granted in part.

Background

Plaintiff Charles Turner (“Plaintiff”) alleges that he was injured when he slipped and fell at Los Angeles Internation Airport on April 18, 2021.  Plaintiff filed the complaint in this action against Defendant Los Angeles World Airports, City of Los Angeles (“Defendant”) and Does 1 through 50 on February 8, 2022.  Plaintiff filed a First Amended Complaint on March 30, 2022, and a Second Amended Complaint on August 10, 2022.  Defendant filed an answer to the Second Amended Complaint on September 7, 2022.

On July 18, 2023, Defendant served Plaintiff with discovery, including Special Interrogatories (Set Three) and Requests for Production (Set Three).  (You Decl., ¶ 2 & Exhs. A-B.)  Plaintiff served responses on August 28.  (Id., ¶ 3 & Exhs C-D.)

Defendant contends that the discovery responses were not code complaint and communicated with Plaintiff about the responses.  (Id., ¶¶ 5-8 & Exh. F.)  This communication did not resolve the disputes.

On February 23, 2024, Defendant filed these two motions to compel further responses.  Defendant also requests sanctions. 

On March 15, 2024, the Court conducted an Informal Discovery Conference (IDC).  The matter was not resolved.

On March 25, Plaintiff filed oppositions to both motions, and his own requests for sanctions.  Plaintiff also filed a Request for Judicial Notice.

On April 2, Defendant filed untimely replies.  On April 3, Plaintiff filed objections to the replies.

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).)

“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).)

Preliminary Issues

Plaintiff’s request for judicial notice is granted.

Plaintiff’s objections to Defendant’s replies are overruled.  Although the replies are late, the Court will exercise its discretion to consider them.

Discussion

Plaintiff has an obligation under the Civil Discovery Act to provide Defendant with code-compliant responses to interrogatories and document requests.  For Defendant to obtain a court order granting a motion to compel, however, Defendant must comply with certain mandatory statutory requirements.  One of those requirements is that the motion must “be accompanied by a meet and confer declaration under Section 2016.040.”  (Code Civ. Proc., §§ 2030.300, subd. (b)(1) & 2031.310, subd. (b)(2).)  Code of Civil Procedure section 2016.040, in turn, requires that the declaration must “state facts showing a reasonable and good faith attempt at an information resolution of each issue presented by the motion.”

Defendant has not filed such a declaration.  With the moving papers, Defendant filed a declaration that attaches various emails between counsel.  (Id., ¶ 8 & Exh. F.)  In those emails: (1) on October 16, Defendant confirmed an extension of time to file a motion to compel; (2) in a separate email on October 16, Defendant identified the interrogatories and document requests in dispute; (3) on October 30, Defendant followed up on its request for further responses, and counsel agreed on a further extension of time to file a motion to compel; (4) on November 9, Defendant followed up on its request for further responses; (5) on November 10, Plaintiff stated that he would provide further responses to some, but not all, of the requests identified by Defendant, and that “we’ll need to further meet and confer on other responses”; (5) on November 23 and 27, counsel exchanged emails regarding another extension of time to file a motion to compel; (6) on November 30, Defendant requested (or perhaps demanded) that further responses be served by December 4; and (7) on December 8, Defendant sent a follow-up email.  There is no communication about the substance of the dispute.  There is no meet and confer.  And after December 8, there is no further communication at all prior to the filing of the motion more than two months later.  (Id., Exh. F.)  Moreover, the only conversation mentioned in the declaration related to an extension of the motion to compel deadline, not the substance of the dispute.  (Id., ¶ 5.)

Defendant attempts to address this failing with a declaration from counsel filed with the reply.  But the governing statute (quoted above) specifically requires that the meet and confer declaration be submitted with the moving papers, not just at some point prior to the hearing.  Moreover, the reply declaration, and the emails attached thereto, still provide no evidence that there was, prior to the filing of these two motions, a substantive meet and confer regarding the alleged deficiencies in the responses.

Defendant’s counsel does state in his reply declaration that Plaintiff is a convicted felon.  (You Decl., ¶ 14.)  But a convicted felon may still suffer (and recover for) an injury caused by a dangerous condition of public property, and there is no “convicted felon exception” to the meet and confer requirements of section 2030.300 and 2031.310.

The Court has concerns about the discovery responses provided by Plaintiff, and Defendant may (or may not) have a basis to bring a motion to compel with regard to the further responses served in March (after, of course, complying with all statutory requirements, as well as the provision of the Eighth Amended Standing Order for Procedures in Personal Injury Hub Courts).  But those concerns do not allow the Court to ignore the plain language of the statutes that govern these motions to compel, including the mandatory meet and confer requirement.  Defendant has not satisfied that requirement here.

Accordingly, the motions to compel are denied.

The Court grants in part Plaintiffs’ requests for sanctions.  Defendant has unsuccessfully moved to compel further responses.  Defendant has not acted with substantial justification, and there is nothing in the record to show that the imposition of sanctions would be unjust.  These motions, and the expenses associated with opposing them, were unnecessary and might have been avoided if there had been an adequate meet and confer.  In addition, and independently, Defendant has failed to meet and confer as required by statute.

The Court sets sanctions in the amount of $550 on each motion, calculated based on two hours of attorney time for each opposition, multiplied by counsel’s reasonable billing rate of $275 per hour.  (Fisher Decls., ¶¶ 18, 19.) 

Conclusion

The Court DENIES Defendants’ motions to compel.

The Court DENIES Defendant’s requests for sanctions.

The Court GRANTS Plaintiff’s request for sanctions.

The Court ORDERS Defendant and its counsel of record Clark Hill LLP, jointly and severally, to pay monetary sanctions to Plaintiff under the Civil Discovery Act in the total amount of $1,100 within 30 days of notice.

Plaintiff, as the prevailing party, is ordered to give notice.