Judge Theresa M. Traber, Case 20STCP04198 2023-01-09 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCP04198, Date: 2023-01-09 Tentative Ruling

Case Number: 20STCP04198 Hearing Date: January 9, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 9, 2023 TRIAL DATE: June 27, 2023

CASE: Long Z. Liu v. City of Baldwin Park, et al.

CASE NO.: 20STCP04198

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION; REQUEST FOR SANCTIONS

MOVING PARTY: Plaintiff Long Z. Liu

RESPONDING PARTY(S): City of Baldwin Park, erroneously sued as Baldwin Park Police Department and Baldwin Park City Hall

CASE HISTORY:

· 12/20/20: Petition filed

· 12/06/22: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This was a petition for writ of mandamus. Plaintiff now alleges that Defendants engaged in a criminal conspiracy to illegally tow vehicles and force their owners to pay extortionate fees to retrieve the vehicles from impoundment. Plaintiff alleges that he was personally injured and his civil rights violated when his vehicle was allegedly unlawfully towed.

Plaintiff moves to compel further responses to Requests for Admissions propounded to Defendant, and for sanctions.

TENTATIVE RULING:

Plaintiff’s Motion to Compel Further Responses to Requests for Admissions is DENIED.

Plaintiff’s request for sanctions is DENIED.

DISCUSSION:

Plaintiff moves to compel further responses to Plaintiff’s Requests for Admissions (Set One) propounded to Defendant.

Legal Standard

Under Code of Civil Procedure section 2033.290, subdivision (a), a court may order a party to serve a further response to an interrogatory when the court finds that: “(1) An answer to a particular request is evasive or incomplete[; or] (2) An objection to a request is without merit or too general.”

The burden is on the responding party to justify any objection or failure to fully answer the requests. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

Timing:

A motion to compel further responses requests for admission must be served “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.” (Code Civ. Proc. § 2033.290(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410

On September 27, 2022, the parties attended an Informal Discovery Conference to attempt to resolve outstanding disputes regarding multiple sets of discovery, including the interrogatories at issue here. Pursuant to an oral stipulation by the parties, the Court ordered that supplemental responses were to be provided by Defendant on or before October 11, 2022. (September 27, 2022 Minute Order.) The Court further ordered that, whether supplemental responses were proved or not, Plaintiff would have 45 days from October 11, 2022 to file a motion to compel further responses to discovery. 45 days from October 11, 2022 was November 25, 2022, a Court holiday. The deadline was therefore extended to November 28, 2022, the following Monday, pursuant to Code of Civil Procedure section 12. This motion was served on November 25, 2022 and filed on November 28, 2022. (Proof of Service.) The motion is therefore timely.

Meet and Confer

A party making a motion to compel further responses must also include a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2033.290 (b)(1).)

The Declaration of John B. Byerly filed in support of the motion states that Plaintiff’s counsel attempted to meet and confer regarding these responses by sending an e-mail at 1:16 AM on November 24, 2022, demanding supplemental responses by 7:00 AM the next day, November 25. (Declaration of John B. Byerly ISO Mot. ¶¶ 3, 5.) A single email in the early hours of the morning of the Thanksgiving holiday demanding a response by the morning after the Thanksgiving holiday is not, by any measure, a good-faith attempt to informally resolve the issues presented by this motion.

However, Plaintiff states in the reply papers that Plaintiff’s counsel also attempted to meet and confer with Defendant on November 16, 2022, through an email (attached as Exhibit A to the reply brief), and purportedly made “numerous phone calls” to attempt to resolve this issue. (See Declaration of David Lopez ISO Reply ¶ 4, Reply Exh. A.) This information should have been presented in the initial verified declaration made under penalty of perjury, and not in a declaration in support of the reply brief. The Lopez Declaration states that Defendant did not respond to either of the attempts by Plaintiff to meet and confer regarding the deficient discovery responses. (Lopez Reply Decl. ¶¶ 4, 6.)

Plaintiff has therefore demonstrated that a reasonable and good faith attempt was made to resolve this dispute informally before filing this motion. Plaintiff has thus substantially complied with the statutory meet and confer requirements.

Analysis

Plaintiff moves to compel further responses to 52 requests for admissions propounded to Defendant. Plaintiff’s motion does not address any of the responses contained in Plaintiff’s Separate Statement, instead referring to Defendant’s responses to Plaintiff’s interrogatories. Further, Plaintiff does not state which of Defendant’s responses to Plaintiff’s 52 requests are evasive or inadequate. In addition, a review of Plaintiff’s separate statement reveals that each of Defendant’s responses consist of partial denials, denials for lack of knowledge, or complete denials. (See, generally, Separate Statement.) Neither Plaintiff’s motion nor the separate statement explains how these responses are inadequate beyond a conclusory assertion that they are evasive. Although the burden is on Defendant to justify any failure to respond fully to the requests, Plaintiff must make an initial showing, as the moving party, that Defendant did not fully respond. Plaintiff has not done so.

Sanctions

Plaintiff requests sanctions in connection with this motion.

Code of Civil Procedure section 2023.030 authorizes the Court to impose monetary sanctions on any attorney engaging in the misuse of the discovery process by requiring that attorney to pay the reasonable expenses incurred by anyone as a result of that conduct. Code of Civil Procedure section 2033.290(d) requires the Court to impose sanctions against any party 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.

As Plaintiff is not the prevailing party on this motion, Plaintiff is not entitled to sanctions. Defendant has not requested sanctions in its opposition. Therefore, the Court declines to award sanctions in connection with this motion.

CONCLUSION:

Accordingly, Plaintiff’s Motion to Compel Further Responses to Requests for Admissions is DENIED.

Plaintiff’s request for sanctions is DENIED.

Moving party to give notice.

IT IS SO ORDERED.

Dated: January 6, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.