Judge Thomas D. Long, Case 21STCV17999 2022-09-22 Tentative Ruling

On May 13, 2021, Weber Enterprise Trucking Corporation (“Weber”) filed this action against Forest Lawn Memorial-Park Association (“Forest Lawn”), and on July 13, 2021, Forest Lawn filed a cross-complaint. On July 12, 2022, the parties participated in an informal discovery conference. On August 23, 2022, Forest Lawn filed a motion to compel further responses to special interrogatories and a motion to compel further responses to requests for production of documents.

On November 2, 2021, Forest Lawn propounded Special Interrogatories, Set One, on Weber. (Freeman Decl. ¶¶ 2-3.) Weber served unverified responses on January 6, 2022 and noted that production of documents would be served the next week. (Freeman Decl. ¶ 8.) Weber served verifications on January 31, 2022. (Freeman Decl. ¶ 9.)

After meeting and conferring, Forest Lawn moves to compel further responses to Special Interrogatories Nos. 5, 12, 23, 62, 80, 83, 119, 131, 162, 166-169, 224-230, 233, 235-240, 243, 244, 247, and 248. In its supplemental briefing after the joint stipulation, Forest Lawn acknowledges that the dispute over Nos. 119, 131, 224, 226-229, 235, 237-240, and 248 is now moot.

A party may move to compel a further response to interrogatories if the demanding party deems an answer to be evasive or incomplete, if an exercise of the option to produce documents is unwarranted or inadequate, or if objection is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).)

Special Interrogatory Nos. 5, 12, 23, 62, 80, 83 ask Weber to identify all persons with knowledge of the facts set out in certain preceding interrogatories.

Weber provided names in each of its responses. Forest Lawn argues that these individuals did not work alone, and Weber should identify all employees, subcontractors, and vendors.

Although Forest Lawn may not believe that these are all relevant individuals, Weber provided code-compliant responses. The motion to compel is denied.

Special Interrogatory No. 162 asks Weber to “IDENTIFY all DOCUMENTS which refer or relate to the transportation of such materials to the FOREST LAWN SITE” from 8845 Sepulveda Blvd., North Hills, California. Weber responded with, “Invoices and freight tickets.”

Forest Lawn argues that the spreadsheet provided by Weber does not match the terminology, and there are no “freight tickets.” Weber’s President now declares that when searching for the freight tickets, he learned that the garage in which they had been stored had flooded and that the freight tickets had been destroyed. (Weber Decl. ¶ 2.) Accordingly, there is nothing to compel.

Special Interrogatory No. 166 asks Weber to state each date on which it exported each load of materials from the Forest Lawn site. Special Interrogatory No. 167 asks Weber to state the volume of each load of materials. Special Interrogatory No. 168 asks Weber to state the makeup of each load of materials. Special Interrogatory No. 169 asks Weber to state the destinations where the loads of materials were exported.

Weber referred Forest Lawn to freight tickets and customer invoices. These responses are generally sufficient under Code of Civil Procedure section 2030.230. However, in its supplemental briefing, Forest Lawn clarifies that the invoices do not actually contain the requested information, including dates on which Weber exported materials and delivered materials to customers, or the volume of materials. The motion to compel is therefore granted as to Nos. 166, 167. The motion is denied as to Nos. 168 and 169, as Forest Lawn has not shown that the invoices are insufficient for this information.

With respect to the freight tickets, Weber contends they were destroyed in a flood and are not available. (Weber Decl. ¶ 2.)

Special Interrogatory No. 225 asks Weber to “state the dates for which YOU rented/leased said equipment to perform work under the SOIL AGREEMENT” as to each piece of equipment identified in response to Special Interrogatory No. 224.

Special Interrogatory No. 230 asks Weber to “state the amount YOU owe to said supplier for equipment provided to perform work under the SOIL AGREEMENT” for each equipment supplier identified in Special Interrogatory No. 222.

Special Interrogatory No. 233 asks Weber to “State the name of each subcontractor YOU engaged to provide labor, materials, services or equipment for the work performed under the SOIL AGREEMENT.”

Special Interrogatory No. 236 asks Weber to “state the first date and the last date on which said subcontractor performed its work under the subcontract agreement” for each subcontractor identified in response to Special Interrogatory No. 233.

Weber referred Forest Lawn to rental agreements and invoices from Quinn Rental Services Inc., Kennedy Heavy Equipment, and Ecco Equipment Company. Forest Lawn argues that the spreadsheets provided by Weber do not contain tags for “rental agreements” or “Ecco,” and the mentions of “Kennedy” and “Quinn” are emails between Shane Weber and Forest Lawn personnel.

In the Joint Statement, Weber provided further direct responses to each of these Special Interrogatories. This appears to moot the issues. The motion to compel is denied.

Special Interrogatory No. 243 asks Weber to “IDENTIFY all customers to whom you sold materials exported from the FOREST LAWN SITE pursuant to the SOIL AGREEMENT.”

Special Interrogatory No. 244 asks Weber to “state the date or dates on which YOU delivered materials exported from the FOREST LAWN SITE to each such customer” for each customer identified in response to Special Interrogatory No. 243.

Special Interrogatory No. 247 asks Weber to “state the amount paid by YOUR customer for said materials” for each delivery described in response to Special Interrogatory No. 244.

Weber referred Forest Lawn to invoices to customers. Forest Lawn argues that the spreadsheets provided do not contain “customer invoices” issue tags, and any invoices do not sufficiently identify customers because they lack identifying information, including contact information.

In the Joint Statement, Weber clarifies that the spreadsheet contains an issue tag for “Material Sales Invoices,” and those invoices identify the materials that were sold, the date sold, the amount of materials sold, the amount paid, and the purchasing customer. Weber also contends that it again produced these invoices in response to the Notice of Shane Weber’s Deposition.

Weber does not dispute that the invoices do not contain addresses, telephone numbers, or other identifying information, as required in the Interrogatories’ definition of “IDENTIFY.” The motion to compel is granted as to No. 243. Weber must state the full name, address, and telephone number of the individual or entity.

Weber does not dispute that the invoices identified by Forest Lawn (WEBER0000001, WEBER0000118, WEBER0000119, WEBER0000121) do not contain delivery dates. In its supplemental brief, Forest Lawn clarifies that the invoices contain invoice dates, but only a few contain delivery dates. The motion to compel is also granted as to No. 244. Weber must state the delivery and export dates.

Weber does not dispute that the invoices identified by Forest Lawn (WEBER0000115-WEBER0000119) do not indicate whether they were paid. The motion to compel is also granted as to No. 247. Weber must identify the amount actually paid by each customer.

The motion to compel is GRANTED IN PART and DENIED IN PART as set forth above. Weber is ordered to provide further responses within 10 days of this order.

On November 1, 2021, Forest Lawn propounded Request for Production, Set One, on Weber. (Freeman Decl. ¶¶ 2-3.) Weber served unverified responses on January 6, 2022 and noted that production of documents would be served the next week. (Freeman Decl. ¶ 8.) Weber served verifications on January 31, 2022. (Freeman Decl. ¶ 9.) On February 22, 2022, Weber produced documents. (Freeman Decl. ¶ 11.)

After meeting and conferring, Forest Lawn moves to compel further responses to Request for Production Nos. 1, 23-28, 40-47, and 52-54. In its supplemental briefing after the joint stipulation, Forest Lawn acknowledges that the dispute over Nos. 41, 45, 46, 47, and 54 is now moot.

A party may move to compel a further response to a demand for production of documents if the demanding party deems that the statement of compliance with the demand is incomplete; the representation of inability to comply is inadequate, incomplete, or evasive; or an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).)

Request for Production No. 1 requests “All DOCUMENTS identified or referred to by YOU in YOUR Response to Forest Lawn Memorial-Park Association’s Special Interrogatories to Weber Enterprise Trucking Corporation (Set One).”

Weber responded that it “will produce all of the requested documents in its possession, custody, or control.” Forest Lawn contends that it still has not received documents related to Special Interrogatory Nos. 96, 119, 183, 185, and 224.

Weber argues due to the high number of discovery requests, it “should be forgiven if freight tickets and daily tickets slipped through the cracks.” That is not the law. Weber must produce the documents that it identified. For those documents that Weber contends are not available, such as freight tickets that were destroyed in a flood, it must state so in verified responses.

Request for Production No. 23 requests “All DOCUMENTS which refer or relate to any and all materials which YOU imported on to the FOREST LAWN SITE from 11311 Pendleton Street, Unit B, Sun Valley, California in or around 2020, including, but not limited to haul tickets, orders, invoices, statements, billings, agreements, test reports or other documents reflecting the make-up and/or volume of such materials and/or the locations on the FOREST LAWN SITE to which those materials were imported.”

Weber responded that it “will produce all of the requested documents in its possession, custody, or control.” In the Joint Statement, Weber states that it misidentified 11311 Pendleton Street, Unit B, Sun Valley, California as a location from which materials were imported to Forest Lawn’s property. This appears to moot the issue, and Forest Lawn’s supplemental briefing does not address it.

Request for Production Nos. 24-28 request “All DOCUMENTS which refer or relate to any and all materials which YOU imported on to the FOREST LAWN SITE from [various addresses] in or around 2020, including, but not limited to haul tickets, orders, invoices, statements, billings, agreements, test reports or other documents reflecting the make-up and/or volume of such materials and/or the locations on the FOREST LAWN SITE to which those materials were imported.”

Weber responded that it “will produce all of the requested documents in its possession, custody, or control.” Forest Lawn contends that it has not located any documents relating to the identified addresses. In the Joint Stipulation, Weber states that it will provide invoices before the hearing. Weber’s president also declares that “dump fee invoices Weber issued and Weber’s contracts with its equipment suppliers” will be produced “in the next few days” after his September 12, 2022 declaration. (Weber Decl. ¶ 4.)

If the documents have been produced prior to the hearing, the motion to compel is moot. If not, then the motion to compel is granted.

Request for Production No. 40 requests “All DOCUMENTS which refer, relate to or comprise any agreements between YOU and equipment suppliers to supply equipment for YOUR use in performing collection, processing and/or hauling activities pursuant to the SOIL AGREEMENT, including, but not limited to contracts, rental agreements, equipment leases and purchase orders.”

If the documents have been produced prior to the hearing, the motion to compel is moot. If not, then the motion to compel is granted.

Request for Production No. 42 requests “All DOCUMENTS which refer or relate to any payments made by YOU to equipment suppliers for the use of their equipment in performing collection, processing and/or hauling activities pursuant to the SOIL AGREEMENT.”

Weber responded that it “will produce all of the requested documents in its possession, custody, or control.” Forest Lawn contends that it has not located any relevant documents. In the Joint Stipulation, Weber states that it produced its accounting records that show Plaintiff’s payments to equipment suppliers in response to a similar request included in the Notice of Shane Weber’s Deposition. This appears to moot the issue, and Forest Lawn’s supplemental briefing does not address it.

Request for Production No. 43 requests “All DOCUMENTS which refer or relate to any amounts owed by YOU to equipment suppliers for the use of their equipment in performing collection, processing and/or hauling activities pursuant to the SOIL AGREEMENT.”

Weber responded that it “will produce all of the requested documents in its possession, custody, or control.” Forest Lawn contends that it has not located any relevant documents. In the Joint Stipulation, Weber states that “it was billed by Quinn through an electronic portal, which it can no longer access. With respect to Kennedy and Ecco, it made a diligent search for the records and states that they cannot be produced because any such records have been lost or destroyed.”

It is not clear that the response regarding Quinn’s electronic portal reflects a diligent search for all documents referring or relating to amounts owed to Quinn, especially when Forest Lawn’s supplemental briefing notes that Weber’s Joint Discovery Dispute Stipulation response to Forest Lawn’s Special Interrogatory No. 230 states that Weber still owes Quinn Rental Services, Inc. $312,386.93. The same response also states that Weber owes Ecco Equipment Company $118,388.26.

Request for Production No. 44 requests “All DOCUMENTS which refer, relate to or comprise any agreements between YOU and any subcontractors engaged by YOU to provide labor, materials, services or equipment for the collection, processing and/or hauling activities pursuant to the SOIL AGREEMENT, including, but not limited to subcontract agreements, subcontractor change orders, construction change directives and subcontractor change order requests.”

Weber’s Joint Stipulation statement is incomplete and does not address all aspects of the request. The request is not limited to written contracts, and Weber does not state that it conducted a diligent search for documents referring or relating to any agreements, subcontractor change orders, construction change directives, and subcontractor change order requests.

Request for Production No. 52 requests “All photographs and video depicting STOCKPILE #2 taken at any time.” Request for Production No. 53 requests “All photographs and video depicting work performed on the access road in the vicinity of STOCKPILE #1.”

Weber responded that it “will produce all of the requested documents in its possession, custody, or control.” Forest Lawn contends that it learned that Weber advertised the materials he was exporting from Forest Lawn on social media platforms such as Facebook, and the production does not contain copies of numerous social media postings depicting the stockpiles. Weber contends in the Joint Statement that it produced its social media posts in response to a similar request included in the Notice of Shane Weber’s Deposition. However, in supplemental briefing, Forest Lawn explains that the production for the deposition does not contain any such posts from Weber’s Facebook account, and the “account is at least partially publicly visible and appears to contain posts with images likely depicting Forest Lawn’s stockpiles.”

The motion to compel is GRANTED IN PART and DENIED IN PART as set forth above. Weber is ordered to provide further production within 10 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court