Judge: Steven A. Ellis, Case: 23STCV02887, Date: 2024-08-22 Tentative Ruling
Case Number: 23STCV02887 Hearing Date: August 22, 2024 Dept: 29
Heffron v. City of Los Angeles
23STCV02887
Motion to Compel Deposition
Motion to Compel Further Responses to Form Interrogatories
Tentative
The motion to compel deposition is denied as moot.
The motion to compel further responses to form interrogatories
is granted. The request for sanctions is
granted in part.
Background
On February 9, 2023, Gregory Blaine
Heffron (“Plaintiff”) filed a complaint against City of Los Angeles (“City”),
Los Angeles Department of Water and Power (“DWP”), County of Los Angeles (“County”),
State of California (“State”), and Does 1 through 200 for liability of a public entity under
Government Code section 815 and negligence for a scooter accident occurring on
May 13, 2022.
On May 15 and 16, 2023, County and
State filed answers. These defendants
were dismissed, at the request of Plaintiff, on April 19, 2024.
On June 26, 2023, City filed an
answer and a cross-complaint against Roes 1 through 10.
There are two motions set for hearing
on August 22.
First, on April 17, 2024, City filed a
motion to compel Plaintiff to appear for deposition. City also requests
sanctions. On July 8, 2024, Plaintiff’s
counsel filed a declaration in opposition, and City filed a reply on July 11.
This motion was initially set for
hearing on June 14, was continued based on the agreement of the parties to July
18, and then was continued again by the Court to August 22.
Second, on June 26, 2024, City filed
a motion to compel Plaintiff to provide further responses to Form
Interrogatories (Set Two). On July 11,
2024, Plaintiff’s counsel filed a declaration in opposition, and City filed a
reply on July 18.
This motion was initially set for
hearing on July 25 and was continued to August 22.
Legal Standard
Motion to Compel Deposition
“Any party may obtain discovery …
by taking in California the oral deposition of any person, including any party
to the action.” (Code Civ. Proc., §
2025.010.) Code of Civil Procedure
sections 2025.210 through 2025.280 provide the requirements for (among other
things) what must be included in a deposition notice, when and where
depositions may be taken, and how and when the notice must be served.
“The service of a deposition
notice … is effective to require any deponent who is a party to the action or an
officer, director, managing agent, or employee of a party to attend and to
testify, as well as to produce any document, electronically stored information,
or tangible thing for inspection and copying.”
(Id., § 2025.280, subd. (a).)
Section 2025.230 provides: “If the
deponent named is not a natural person, the deposition notice shall describe
with reasonable particularity the matters on which examination is
requested. In that event, the deponent
shall designate and produce at the deposition those of its officers, directors,
managing agents, employees, or agents who are most qualified to testify on its
behalf as to those matters to the extent of any information known or reasonably
available to the deponent.”
Section 2025.410, subdivision (a),
requires any party to serve a written objection at least three days before the
deposition if the party contends that a deposition notice does not comply with
the provisions of sections 2025.210 through 2025.280.
Section 2025.450, subdivision (a),
provides:
“If, after service of a
deposition notice, a party to the action or an officer, director, managing
agent, or employee of a party, or a person designated by an organization
that is a party under Section 2025.230, without
having served a valid objection under Section 2025.410, fails to appear for
examination, or to proceed with it, or to produce for¿inspection any document,
electronically stored information, or tangible thing described in the
deposition notice, the party giving the notice may move for an order compelling
the deponent’s attendance and testimony, and the production for inspection of
any document, electronically stored information, or tangible thing described in
the deposition notice.”
Any such motion to compel must show good
cause for the production of documents and, when a deponent has failed to
appear, the motion must be accompanied “by a declaration stating that the
petitioner has contacted the deponent to inquire about the nonappearance.” (Id., subd. (b).) “Implicit in the requirement that counsel contact the deponent to inquire
about the nonappearance is a requirement that counsel listen to the reasons
offered and make a good faith attempt to resolve the issue,” including by
rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86
Cal.App.4th 1109, 1124.)
When a motion to compel is
granted, “the court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) in favor of the party who noticed the
deposition and against the deponent or the party with whom the deponent is
affiliated, unless the court finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust.” (Id., § 2025.450, subd. (g)(1).)
In Chapter 7 of the Civil Discovery Act, 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.” (Id., § 2023.030, subd. (a).)
Motion to Compel Further Response to
Interrogatories
“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).)
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
Motion
to Compel Deposition
Defendant
served Plaintiff with a notice of deposition set for March 29, 2024. (Houle-Sandoval
Decl., ¶ 4.) Plaintiff did not serve objections, but one day before the deposition
Plaintiff’s counsel requested that the deposition be rescheduled. (Id., ¶¶ 5, 9.) This request was made because Plaintiff’s
counsel was ill. (Mesaros Decl., ¶¶
3-5.) City’s counsel responded to the
requested rescheduling by stating that City would file a motion to compel and
seek sanctions. (Houle-Sandoval Decl., ¶
10 & Exh. F.)
The only
evidence of any attempt to reschedule the deposition (before City filed this
motion) appears in an email sent by City to Plaintiff on April 11. (Id., ¶ 12 & Exh. G.) In that email, City refers to an attached
stipulation to continue trial and states that if Plaintiff did not sign the
stipulation by noon the next day, City would file an ex parte application for
the continuance. (Id., Exh. G.) (City did file the ex parte application,
which the Court denied on April 16.) At
the end of the email, City also requested new dates for Plaintiff’s deposition,
“either at the end of April, or else in June.”
(Ibid.)
City
filed this motion on April 17.
Two days
later, the parties made arrangements for the scheduling of Plaintiff’s
deposition. (Houle-Sandoval Reply Decl.,
¶ 5.) Plaintiff was deposed on June 28
and July 8. (Id., ¶ 8; see also Mesaros
Decl., ¶ 6.)
Plaintiff
contends that the motion is now moot.
City disagrees, asserting that the deposition is not complete because
(1) some of Plaintiff’s answers were inconsistent with his written interrogatory
responses and document production; and (2) Plaintiff refused to answer certain
questions. (Reply, at pp. 3-4; Houle-Sandoval
Reply Decl., ¶¶ 8-11.)
The
Court has considered the evidence in the record and the arguments of both sides
and concludes that this motion is moot. City
brought this motion to obtain “an order compelling the deposition of Plaintiff.” (Motion, at p. 2.) Plaintiff was deposed on June 28 and July
8. Thus, City has already obtained the
relief sought in this motion.
If City
contends that Plaintiff improperly refused to answer certain questions, City may
seek relief under Code of Civil Procedure section 2025.480. If City contends that there is good cause for
a further deposition of Plaintiff, City may seek relief under Code of Civil
Procedure section 2025.610.
Accordingly,
City’s motion to compel the deposition is denied as moot.
City’s
request for sanctions is also denied, for two independent reasons. First, under section 2025.450, subdivision (g)(1),
the Legislature has authorized sanctions in this context only when a motion is
granted. Here, the motion is denied as
moot. Second, and independently, the
Court finds that the conduct of Plaintiff was substantially justified; his
counsel cancelled a deposition when he was sick and offered alternative
deposition dates within approximately one week of the request from City.
Motion
to Compel Further Response to Form Interrogatories (Set Two)
City moves to compel a further response to Form Interrogatory (Set
Two) 17.1, as it relates to Requests for Admission Nos. 2-7, 9-13, 16-17, 20-22,
25-26, and 29-30.
City propounded Form Interrogatories (Set Two) and Requests
for Admission (Set One) (“RFAs”) on February 1, 2024. (Houle-Sandoval Decl., ¶¶ 3 & Exhs.
A-B.) Plaintiff served (untimely) responses,
without objection, on April 12. (Id., ¶
5 & Exhs. D-E.) The parties met and
conferred and participated in an Informal Discovery Conference (IDC) on May
8. (Id., ¶¶ 6-7.)
At the IDC, the Court shared some preliminary thoughts about
the discovery responses and the code requirements and ordered the parties to
meet and confer further. The parties met
and conferred on May 9, and Plaintiff served further responses on May 10. (Id., ¶¶ 7-8 & Exh. H.)
City contends that these further responses are still not code
compliant. The parties met and conferred
further but were unable to resolve their dispute. (Id., ¶¶ 9-12 & Exhs. I-J.) City then filed this motion.
In his opposition, Plaintiff makes essentially two
arguments.
First, Plaintiff argues that City’s motion is untimely under
Code of Civil Procedure section 2030.300, subdivision (c), which requires that
the notice of the motion be given within 45 days of service of the verified
response. Plaintiff asserts that the
responses were provided on May 10 but this motion was not filed until June 26,
47 days later. (Mesaros Decl., ¶¶
7-10.) But the responses served on May
10 were not verified. (Houle-Sandoval
Decl., ¶ 8 & Exh. H.) As a result,
the 45-day period never even started, much less elapsed prior to June 26. Moreover, Plaintiff served the discovery
responses electronically, adding two days to the time for City to bring a
motion to compel further responses.
(Code Civ. Proc., § 1010.6, subd. (a)(3)(B).) Accordingly, City’s motion is timely.
Second, Plaintiff argues that the motion should be denied because
City was required to schedule another IDC after the further responses were served
on May 10. (Mesaros Decl., ¶¶ 4, 6,
11.) City was not required to do
so. The parties participated in an IDC
regarding these very discovery requests on May 8. That satisfied the requirements under the
Eighth Amended Standing Order for Procedures in Personal Injury Hub
Courts. The IDC requirement is designed
to help streamline the resolution of discovery disputes, not to provide any
party with a tool to delay compliance with the Civil Discovery Act.
Turning to the merits, City’s motion is granted. Plaintiff’s response to Form Interrogatory
No. 17.1 is not code compliant. It is evasive,
incomplete, and deficient, not complete and straightforward as required by the
code. Plaintiff must provide a response,
separately, as to each RFA at issue (and not lump together the response as it
relates to almost 30 RFAs, forcing Plaintiff to guess which part of the
response relates to which RFA or RFAs).
Plaintiff must state the number of which RFA each response relates to. (Form Interrogatory 17.1, subpart (a).) Plaintiff must state all facts upon which he
bases each response. (Form Interrogatory
17.1, subpart (b).) Plaintiff must state
the name, address, and telephone number of each person who has knowledge of
those facts. (Form Interrogatory 17.1,
subpart (c).) And Plaintiff must
identify all documents and other tangible things that support his response and
state the name, address, and telephone number of the person who has each
document or thing. (Form Interrogatory
17.1, subpart (d).)
City’s request for sanctions is granted in part. Plaintiff and his counsel have unsuccessfully opposed a further response
to interrogatories, they have not acted with substantial justification, and no
other circumstances make the imposition of a sanction unjust. (Code Civ. Proc., § 2030.300, subd. (d).) The Court sets sanctions in the amount of
$997.50, calculated based on 3.5 hours of attorney time, multiplied by counsel’s
reasonable billing rate of $285 per hour.
(See Houle-Sandoval Decl., ¶ 13.)
Conclusion
The Court DENIES as moot City’s motion to compel the
deposition of Plaintiff.
The Court DENIES City’s request for sanctions in connection
with the motion to compel deposition.
The Court GRANTS City’s motion to compel a further response to
Form Interrogatory (Set Two) 17.1
The Court ORDERS Plaintiff to provide a written, verified,
code compliant response, without objection, to Form Interrogatory (Set Two)
17.1, within 15 days of notice.
The Court GRANTS in part City’s request for sanctions in
connection with the motion to compel a further response to Form Interrogatory
(Set Two) 17.1.
The Court ORDERS Plaintiff and counsel Christopher Mesaros,
jointly and severally, to pay monetary sanctions to City under the Civil
Discovery Act in the amount of $997.50, within 30 days of notice.
Moving party to give notice.