Judge Theresa M. Traber, Case Number: 21STCV44398, Date: 2023-09-05 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV44398, Date: 2023-09-05 Tentative Ruling

Case Number: 21STCV44398 Hearing Date: November 6, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: November 6, 2023 TRIAL DATE: April 9, 2024

CASE: 3BTech Inc. v. Great Northern Ins. Co.

CASE NO.: 21STCV44398

(1) MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES

(2) MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION

MOVING PARTY: Defendant Great Northern Insurance Co.

RESPONDING PARTY(S): Plaintiff 3BTech, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a breach of contract action that was filed on December 6, 2021. Plaintiff seeks coverage for the loss of inventory destroyed by a fire while in the care of the insured non-party Pro-Com Products, Inc.

Defendant Great Northern Ins. Co moves to compel further responses to form interrogatories and requests for production.

TENTATIVE RULING:

Defendant’s Motion to Compel Further Responses to Form Interrogatories is GRANTED.

Defendant’s Motion to Compel Further Responses to Requests for Production is DENIED.

This ruling is conditioned on Defendant’s payment of $60 in filing fees within 5 days of this order.

DISCUSSION:

Multiple Motions

Defendant improperly filed a single motion pertaining to two sets of discovery propounded to Plaintiff.

Multiple motions should not be combined into a single filing.¿(See¿Govt. Code,¿§ 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing];¿see¿also¿Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011)¿[“Motions to compel compliance with separate discovery requests ordinarily should be filed separately.”].) Defendant should have reserved two separate hearings for two separate motions to compel further responses.

Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect.

Accordingly, the Court’s ruling on these motions is conditioned on Defendant’s payment of an additional $60 in filing fees within 5 days of the date of this order.

Motion to Compel Further Responses to Form Interrogatories

Defendant moves to compel further responses to form interrogatories propounded to Plaintiff.

Legal Standards

Under Code of Civil Procedure section 2030.300, 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 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[; or] (3) An objection to an interrogatory is without merit or too general.”

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

Meet and Confer

A party making a motion to compel further responses must 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, 2030.310(b).)

The Declaration of Sean R. Simpson attached to this motion states that the parties met and conferred via email concerning the operative responses to Defendant’s discovery between August 24, 2023 and October 4, 2023, without success. (Declaration of Sean R. Simpson ISO Mot. ¶¶ 17-20, Exhs. P-R.) Defendant has therefore complied with its statutory meet-and-confer obligation.

Timeliness

A motion to compel a further response must be noticed within 45 days of the service of the verified response, or any supplemental 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. §§ 2030.300(c), 2031.310(c); see also Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1409; Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685.) Otherwise, the propounding party waives any right to compel further responses. (Id.) The 45-day time limit is mandatory and jurisdictional. (Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410.)

The undisputed facts show that Plaintiff’s operative supplemental responses to the discovery at issue were served on July 19, 2023. (Simpson Decl. ¶ 14 Exh. M.) Defendant has provided email exchanges showing that the parties agreed to extend the deadline to file this motion to October 27, 2023. (Id. Exh. R.) This motion was filed and served on October 12, 2023, and is therefore timely.

Analysis

Defendant moves to compel further responses to Form Interrogatory No. 17.1 with respect to Requests for Admissions Nos. 10 through 15 propounded to Plaintiff. Defendant propounded a full set of discovery requests, including form and special interrogatories, requests for production, and requests for admissions on December 16, 2022. (Simpson Decl. ¶¶ 2-5 Exhs. A-D.)

Form Interrogatory No. 17.1 asks that, for each response to the accompanying requests for admission that is not an unqualified admission, the respondent is to state (a) the number of the request, (b) all facts upon which the response is based, (c) the contact information of all persons with knowledge of those facts, and (d) identify all documents and other tangible things supporting the response and the contact information of each person who has them. (See Defendant’s Exh. B. No. 17.1)

Request for Admission No. 10 asked Plaintiff to admit that the attached document defined as the Pro-Com Inventory did not separately set forth that any of the property described therein was owned or controlled by Plaintiff, rather than another entity, at the time of the warehouse fire. (See Defendant’s Exh. A. No. 10.) The remainder of the requests at issue, Nos. 11 through 15, asked Plaintiff to admit that the masks identified in the inventory as “WhiteList N95” were not listed on the FDA’s White List as personal protective equipment authorized to be sold in the United States, (No. 11), were not certified by any regulatory body (No. 12), and did not satisfy FFP2 (No. 13), KN95 (No. 14), or N95 requirements. (No. 15.)

Plaintiff, in response to each request for admission at issue, objected to identification of the inventory list as belonging solely to Pro-Com, and objected to the terms “certified by a governmental agency, regulator, law enforcement administration, or independent laboratory” and the phrases “FFP2 requirements”, “KN95 requirements,” and “N95 requirements” as ambiguous and compound. (Defendant’s Exh. E. Nos. 10-15.) Plaintiff also responded to each request to a categorical denial subject to those objections. (Id.)

Turning now to Plaintiff’s operative supplemental response to Form Interrogatory No. 17.1, Plaintiff responded with respect to these requests for admissions as follows:

Supplemental Response to Requests for Admission 10:

(b) – (d) Exhibit “C” is an inventory list provided by Greenspan public adjusters to both Great Northern and Liberty Mutual insurance adjusters after the 12/4/2020 fire that represents all stock at the facility at the time of the 12/4/2020 fire, including both 3BTech and Pro-Com inventories. Exhibit “C” includes all inventory that was present at the 1250 Bixby facility, including both 3BTech Inc.’s and Pro-Com Product Inc.’s inventories. Johnny Zhu, Brett Barbour, Kevin Stranger are informed of the transmission of the relevant documents to Great Northern Insurance in the days and weeks after the subject fire. 3BTECH1314-1329;

Supplemental Response to Request for Admission 11 through 15:

These requests are ambiguous as to any specific items within the inventory any qualification or certification is applicable to and does not provide the time at which the inventories qualified under the various referenced qualifications or authorizations. Throughout the COVID-19 pandemic, government agencies implemented modifications to the various testing standards and waivers, therefore this party cannot intelligently respond to these requests as phrased. The inventory listing provides the internal identifiers of the inventory at the 1250 Bixby warehouse on the date of the subject fire. Company documents, including certifications, testing, or other verification of the products were lost in the fire. Johnny Zhu and Brett Barbour on behalf of 3BTech, to be contacted through counsel, are informed of the relevant testing and authorizations that were obtained for various PPE sold by 3BTECH. Those documents relevant to the testing and certification that survived the fire and 3BTECH presently possesses were disclosed and produced as 3BTECH 1728-1795.

(Defendant’s Exh. M. No. 17.1.)

With respect to Request No. 10, Defendant argues that Plaintiff’s response is evasive on its face since it does not address whether the document indicates ownership of any of the products stored at the warehouse, nor does it identify any witnesses who might know the basis for Plaintiff’s denial. Plaintiff, in opposition, baldly asserts that this response is sufficient. It is not. The question presented in Request for Admission is a straightforward yes or no question: Does the inventory sheet indicate that Plaintiff owned any of the property in the warehouse at the time of the fire? Defendant is entitled to a straightforward yes (i.e., deny the request) or no (admit the request), and if that answer is a denial of the request for admission, Plaintiff should state the basis for that denial.

As to the remaining requests, Defendant argues that the responses are again evasive because the terms used in the requests are not ambiguous. Plaintiff, in opposition, argues that there were multiple items listed as “WhiteList N95s” and the rapidly-evolving testing and certification requirements during the COVID-19 pandemic rendered Defendant’s requests incoherent without some limitation as to time. The Court is not persuaded. The masks in storage were destroyed in a fire on December 4, 2020, and the plain meaning of Defendant’s requests is whether that entire set of masks listed as “WhiteList N95s” were subject to any form of regulatory approval or met the FFP2, KN95, or N95 standards at the time of the fire. Plaintiff’s response is improperly evasive, and Defendant is entitled to an order compelling further response.

Conclusion

Accordingly, Defendant’s Motion to Compel Further Responses to Form Interrogatories is GRANTED.

Motion to Compel Further Responses to Requests for Production

Defendant also moves to compel further responses to requests for production propounded to Plaintiff.

Legal Standards

Under Code of Civil Procedure section 2031.310, subdivision (a), a court may order a party to serve a further response to a demand for inspection when the court finds that: “(1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.”

The burden is on the moving party to “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) These facts must also be set forth in a separate statement filed by the moving party. (Cal. Rules of Court Rule 3.1345(c).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

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, 2031.310, subd. (b)(2).)

Timeliness

A motion to compel further responses to requests for production 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. § 2031.310(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)

The undisputed facts show that Plaintiff’s operative supplemental responses to the discovery at issue were served on July 19, 2023. (Simpson Decl. ¶ 1Exh. N.) Defendant has provided email exchanges showing that the parties agreed to extend the deadline to file this motion to October 27, 2023. (Id. Exh. R.) This motion was filed and served on October 12, 2023, and is therefore timely.

Good Cause

Defendant moves to compel further responses to Requests for Production (Set One) Nos. 1-3, 7-8, 10-15, 17-19, 22-39, 42-45, and 47-48. As Plaintiff states in opposition, Defendant makes no effort in its moving papers, its separate statement, or its reply brief to demonstrate the relevance of any of these requests for production. Contrary to Defendant’s assertions in its reply brief, a statement that Defendant needs a privilege log to evaluate Plaintiff’s assertion of the attorney-client privilege does not demonstrate good cause for the underlying discovery requests, which is the predicate showing that Defendant must make. Defendant is not entitled to an order compelling further responses to these requests.

Conclusion

Accordingly, Defendant’s Motion to Compel Further Responses to Requests for Production is DENIED.

CONCLUSION:

Accordingly, Defendant’s Motion to Compel Further Responses to Form Interrogatories is GRANTED.

Defendant’s Motion to Compel Further Responses to Requests for Production is DENIED.

This ruling is conditioned on Defendant’s payment of $60 in filing fees within five days of this order.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: November 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.