Judge: Steven A. Ellis, Case: 22STCV39574, Date: 2024-02-27 Tentative Ruling
Case Number: 22STCV39574 Hearing Date: February 27, 2024 Dept: 29
Plaintiff’s Motion to Compel Further Responses to Form
Interrogatories (Set One)
Plaintiff’s Motion to Compel Further Responses to Requests for Production (Set
One)
Plaintiff’s Motion to Compel Further Responses to Requests for Admission (Set
One).
Tentative
The motions to compel further responses to form
interrogatories and requests for admission are granted.
The motion to compel further responses to requests for
production is granted in part and denied in part.
The requests for sanctions are granted in part and denied in
part.
Background
This matter arises out of a motor vehicle accident on January
12, 2021, near the intersection of Melrose Avenue and Mariposa Avenue in Los Angeles. On December 20, 2022, Plaintiff Barry Paige (“Plaintiff”)
filed the Complaint in this action against Defendants Rodney Doyle Sowders; Dolls
Kill, Inc.; and Does 1 through 50.
Plaintiff alleges that the accident was caused by negligence of Defendant
Sowders, and that at the time of the accident Sowders was acting in the course
and scope of his employment with Defendant Dolls Kill.
On March 17, 2023, Defendants Rodney Doyle Sowders and Dolls
Kill, Inc. filed their Answer.
Before the Court at this time are three motions filed by
Plaintiff to compel further discovery responses from Defendant Dolls Kill, Inc.
(“Defendant”).
Plaintiff served Defendant with discovery on June 5, 2023,
including Form Interrogatories (Set One), Requests for Production (Set One),
and Requests for Admission (Set One).
(Midose Decls., ¶ 3 & Exhs. 1.)
Defendant initially served unverified responses, and then served further,
verified responses on September 15. (Id.,
¶¶ 4-5 & Exhs. 2-3.)
Plaintiff contends that the responses are not code
compliant. The parties have met and
conferred, but the disputes remain unresolved.
On October 27 and 30, 2023, Plaintiff filed motions to compel further
responses to the interrogatories, requests for production, and requests for
admission. Plaintiff also requests
sanctions.
On January 17, 2024, Defendant filed an opposition to the
motion to compel further responses to the requests for production.
On January 23, the Court conducted an Informal Discovery
Conference (IDC). The disputes were not
resolved, but Defendant’s counsel did agree to provide further supplemental responses. The hearings on all three motions were
continued to February 27.
Plaintiff filed a reply on February 20.
On February 23, 2024, Defendant filed a supplemental
declaration in opposition to the motion to compel further responses to the
requests for production. Attached to the
declaration is a second supplemental verified response that was served on
February 22.
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).)
“On receipt of a response to requests for admissions, the
party requesting admissions 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).)
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 any specific later date to which the requesting 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 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.”
(Code Civ. Proc., § 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; 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 seeks an order compelling further responses to Form
Interrogatories 12.3 and 12.4.
· Form
Interrogatory 12.3
This interrogatory seeks information regarding written or
recorded statements made concerning the accident.
Defendant’s entire response is “None known other than the insurance
company that took a statement from Mr. Sowders.” This response is not complete and is not code
compliant. The motion to compel a
further response is GRANTED.
· Form
Interrogatory 12.4
This interrogatory seeks information regarding photographs, videotapes,
etc. relating to the accident.
Defendant begins its response with a work product objection. Then, “[w]ithout waiving the above objection”
and “without providing any privileged information,” Defendant responds that
there are approximately 18 responsive items, the subject is the vehicles involved
in the accident, and that photographs were “taken by Advance Auto Refinishing
& Collision, Inc. on behalf of responding party’s insurance company.”
On a motion to compel, the party asserting that information is
privileged or protected by the work product doctrine has the initial burden to
establish, with admissible evidence, the foundational facts for the privilege
or work product protection. (Zimmerman v. Super. Ct. (2013) 220 Cal.App.4th
389, 402; Citizens for Ceres v. Super. Ct. (2013) 217 Cal.App.4th 889,
911 [party asserting attorney-client privilege or work product doctrine “must
prove the preliminary facts” to show that protection applies]; Santa Rosa
Memorial Hospital v. Super. Ct. (1985) 174 Cal.App.3d 711, 727-728.) Here, Defendant has not opposed the motion,
much less presented evidence to establish the foundational facts to support its
claim of privilege or work product protection.
Accordingly, Defendant’s objections are OVERRULED.
This response is not complete and is not code compliant. The motion to compel a further response is
GRANTED.
Requests for Production
Plaintiff seeks an order compelling further written responses
to Requests for Production Nos. 1, 5, 14, and 52. As noted above, Defendant recently provided
further responses to these requests.
· Request No.
1.
Plaintiff seeks the production of all documents Defendant identified
in response to Plaintiff’s Form Interrogatories (Set One).
In Defendant’s verified Second Supplemental Response, Defendant
states an objection based on work product and attorney-client privilege. Defendant then states, “[w]ithout waiving
these objections,” that it will produce “non-work product, non-privileged documents.”
On a motion to compel, the party asserting that information is
privileged or protected by the work product doctrine has the initial burden to
establish, with admissible evidence, the foundational facts for the privilege
or work product protection. (Zimmerman v. Super. Ct. (2013) 220 Cal.App.4th
389, 402; Citizens for Ceres v. Super. Ct. (2013) 217 Cal.App.4th 889,
911 [party asserting attorney-client privilege or work product doctrine “must
prove the preliminary facts” to show that protection applies]; Santa Rosa
Memorial Hospital v. Super. Ct. (1985) 174 Cal.App.3d 711, 727-728.) Here, depending on the factual circumstances
regarding how the responsive documents were created, the documents might or
might not be protected by privilege or work product protection. Defendant, however, has not presented evidence
to establish the foundational facts to support its claim of privilege or work
product protection. Accordingly, Defendant’s
objections are OVERRULED.
This response is not complete and is not code compliant. The motion to compel a further response is
GRANTED.
· Request
No. 5.
Plaintiff seeks the production of all photographs depicting damage
to the vehicle operated by Defendant Sowders at the time of the accident.
In Defendant’s verified Second Supplemental Response, Defendant
states that it will comply. The motion
to compel a further response is DENIED as moot.
· Request
No. 14
Plaintiff seeks the production of statements taken by any
party regarding, or from any person with knowledge of, the accident.
In Defendant’s verified Second Supplemental Response, Defendant
full response is: “Objection. Seeks
attorney work product.”
On a motion to compel, the party asserting that information is
privileged or protected by the work product doctrine has the initial burden to
establish, with admissible evidence, the foundational facts for the privilege
or work product protection. (Zimmerman v. Super. Ct. (2013) 220 Cal.App.4th
389, 402; Citizens for Ceres v. Super. Ct. (2013) 217 Cal.App.4th 889,
911 [party asserting attorney-client privilege or work product doctrine “must
prove the preliminary facts” to show that protection applies]; Santa Rosa
Memorial Hospital v. Super. Ct. (1985) 174 Cal.App.3d 711, 727-728.) Here, depending on the factual circumstances
regarding how the responsive documents were created, the documents might or
might not be protected by privilege or work product protection. Defendant, however, has not presented evidence
to establish the foundational facts to support its claim of privilege or work
product protection. Accordingly, Defendant’s
objections are OVERRULED.
The motion to compel a further response is GRANTED.
· Request
No. 52
Plaintiff seeks the production of the “entire employee personnel
file for Defendant Sowders.”
In Defendant’s verified Second Supplemental Response, Defendant
objects on the ground that the request is overly broad, seeks information that
is not relevant or reasonably calculated to lead to the discovery of admissible
evidence, and is personal and confidential information protected by the right
of privacy.
Defendant also points out in its Opposition that it has
already admitted that Mr. Sowders was acting in the course and scope of his
employment with Defendant at the time of the accident.
On a motion to compel, the party seeking a further response to
a request for the production of documents must show good cause. (Code Civ. Proc., § 2031.310, subd. (b)(1).) The standard for the production of employment
records and other information protected by the right of privacy is significantly
higher. (See generally Williams v. Superior Court (2017) 3 Cal.5th 531, 552; Hill v. Nat'l Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 35-40.)
Here, Plaintiff has not made a
sufficient showing for a further response.
Plaintiff’s arguments relate primarily to the discovery of facts that
would show that Defendant was negligent (or otherwise morally blameworthy) in entrusting
a vehicle for Mr. Sowders to drive on the day of the accident. But where, as here, the employer has admitted
“vicarious liability for an employee’s negligent driving in the course of
employment,” Plaintiff is barred “from pursuing a claim for negligent
entrustment.” (Diaz v. Carcamo
(2011) 51 Cal.4th 1148, 1161.)
The motion to compel a further
response is DENIED.
Requests for Admission
Plaintiff seeks an order compelling a further response to Requests
for Admission (“RFA”) No. 41. RFA No. 41
asks Defendant to admit that it knew that Mr. Sowders “had been involved in at
least one at fault collision prior to the” accident.
Defendant objects on the ground that the RFA is overly broad, seeks
“confidential and private information,” and is “[n]ot relevant and not reasonably
calculated to lead to the discovery of admissible evidence.” Defendant did not, however, file any
opposition to the motion to compel.
Defendant’s objections are OVERRULED. On a motion to compel, a party asserting an
objection has the initial burden of establishing the foundational facts to
support an objection. Defendant has not
done so. The RFA, on its face, is not overly
broad; it does not, on its fact, seek any confidential or private information;
and it does not, on its face, seek information that is not relevant or
reasonably calculated to lead to the discovery of admissible evidence.
The motion to compel a further response is GRANTED.
Sanctions
Plaintiff’s requests for sanctions are granted in part. Defendant has made unmeritorious objections
to Form Interrogatories, to an RFA, and to some of the Requests for
Production. Defendant has unsuccessfully
opposed a motion to compel further responses to Form Interrogatories, a motion
to compel a further response to an RFA, and (in part) a motion to compel further
responses to Requests for Production. The
Court finds that Defendant’s unmeritorious objections and unsuccessful
oppositions were not made with substantial justification, and that it would not
be unjust to impose sanctions against Defendant.
The Court sets sanctions on the motion to compel further responses
to the Form Interrogatories in the amount of $685, calculated based on 2.5 hours
of attorney time, multiplied by a reasonable billing rate for this type of work
of $250 per hour (counsel has not provided sufficient substantiation for the
higher billing rate claimed in her declaration), plus a $60 filing fee. (Midose Decl., ¶¶ 11-12.)
The Court sets sanctions on the motion to compel further responses
to the Requests for Production in the amount of $685, calculated based on 2.5 hours
of attorney time, multiplied by a reasonable billing rate for this type of work
of $250 per hour (counsel has not provided sufficient substantiation for the
higher billing rate claimed in her declaration), plus a $60 filing fee. (Midose Decl., ¶¶ 11-12.) The Court finds that this motion was the most
complicated of the three, requiring the most time, but the Court does not award
sanctions for the portions of the motion that were not successful.
The Court sets sanctions on the motion to compel further responses
to the Request for Production in the amount of $310, calculated based on one hour
of attorney time, multiplied by a reasonable billing rate for this type of work
of $250 per hour (counsel has not provided substantiation for the higher
billing rate claimed in her declaration), plus a $60 filing fee. (Midose Decl., ¶¶ 11-12.)
In setting these sanctions, the Court has taken into account
the economies of scale associated with preparing multiple discovery
motions. The Court also finds that the
motion regarding the document requests was the most complicated of the three,
requiring the most time, but the Court does not award sanctions for the portions
of the motion that were not successful.
Conclusion
The Court GRANTS Plaintiff’s motion to compel further responses
to Form Interrogatories (Set One), GRANTS in part Plaintiff’s motion to compel
further responses to Requests for Production (Set One), and GRANTS Plaintiff’s
motion to compel further responses to Request for Admission (Set One).
The Court ORDERS Defendant Dolls Kill, Inc. to provide code
complaint, verified, written further responses to Form Interrogatories 12.3 and
12.4, without objection, within 14 days of notice.
The Court ORDERS Defendant Dolls Kill, Inc. to provide code
complaint, verified, written further responses to Requests for Production Nos.
1 and 14, without objection, within 14 days of notice.
The Court ORDERS Defendant Dolls Kill, Inc. to provide a code
complaint, verified, written further response to Request for Admission No. 41,
without objection, within 14 days of notice.
The Court GRANTS in part Plaintiff’s request for sanctions.
The Court ORDERS Defendant Dolls Kill, Inc. and The Hanover
Law Office, jointly and severally, to pay monetary sanctions under the Civil
Discovery Act to Plaintiff in the amount of $1,680 within 30 days of notice.
Moving party is ORDERED to give notice.