Judge Thomas D. Long, Case Number: 23STCV23077, Date: 2024-06-28 Tentative Ruling

On September 25, 2023, Plaintiff Darral Scott filed this action against Defendant County of Los Angeles and others.

Plaintiff’s single motion seeks to compel production pursuant to three discovery requests: Request for Production of Documents (Set One), Request for Production of Documents (Set Two), and Form Interrogatories (Set One).

Each set of discovery should have been filed as a separate motion, with separate filing fees and hearing reservations. Despite being scheduled as only one motion and one hearing, the total substance is that of three motions. This unfairly allows Plaintiff to take only one hearing reservation (instead of three) and results in an inaccurate projection and accounting of the Court’s workload, inconveniencing both the Court and other litigants. All parties are ordered not to do this and are warned that continued action of this type may result in monetary sanctions under Code of Civil Procedure section 177.5.

For any future discovery motions, the parties must file a separate motion for each discovery request, or the Court may strike or deny the motions for being improperly filed.

A Non-Appearance Case Review Re: Payment of Additional Filing Fees is scheduled for July 10, 2024 at 9:00 a.m.

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).) The motion must set forth specific facts showing good cause justifying the discovery sought by the demand. (Code Civ. Proc., § 2031.310, subd. (b)(1).)

1. Plaintiff’s Motions to Compel Further Production of Documents is Timely.

Defendant argues that Plaintiff did not timely move to compel after Defendant’s initial objections, so “Plaintiff’s time to object to Defendant’s timely asserted privileges has passed.” (Def. Suppl. Memo. at p. 3.) A motion to compel further responses must be filed within 45 days of the service of the verified response or any supplemental verified response or else “the demanding party waives any right to compel a further response to the demand.” (Code Civ. Proc., § 2031.310, subd. (c).) The statute does not state that the demanding party waives the right to challenge portions of the supplemental response that is repeated from the initial responses. The motion must just be filed within 45 days of the supplemental response in order to “compel a further response to the demand.” Plaintiff timely filed this motion after Defendant’s supplemental responses, which again included objections. Plaintiff is now challenging aspects of Defendant’s supplemental responses.

2. Defendant’s Objections Other than Privilege and Personnel File as to RFPs are Overruled.

For RFP Nos. 4, 15, 17, and 21, Defendant responded that it was producing “all non-privileged responsive documents in responding Defendant’s possession, custody or control,” and it identified the documents by Bates number. Defendant’s objections other than privilege are overruled. The motion is granted for RFP Nos. 4, 15, 17, and 21 with respect to production of a privilege log.

For RFP Nos. 10, 18, and 27, Defendant provided only boilerplate objections. Defendant’s objections other than privilege are overruled. The motion is granted for RFP Nos. 10, 18, and 27.

RFP No. 20 requests “The complete personnel file for each INDIVIDUAL DEFENDANT.” Defendant’s objections based on Evidence Code section 1040 et seq. and Penal Code section 832.5 (personnel file objections) are sustained. The proper method for obtaining these documents is through a Pitchess motion, not a request for production of documents. The motion is denied for RFP No. 20.

RFP No. 26 requests “All COMMUNICATIONS that YOU sent or received from any person not employed or retained by YOU relating to the SUBJECT INCIDENT.” In addition to boilerplate objections, Defendant responded, “Plaintiff’s Government Claim, Defendant’s denial and Plaintiff’s complaint are already in Plaintiff’s possession and equally available to Plaintiff. Discovery and investigation continue.” This is not responsive to the request. Defendant’s objections other than privilege are overruled. The motion is granted for RFP No. 26.

B. Plaintiff’s Motion to Compel Further Responses to Form Interrogatories is Granted.

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).)

Form Rog No. 15.1 requests information about Defendant’s denial of each material allegation and each special or affirmative defense. After objecting, Defendant responded, “Responding Party filed a general denial based upon its statutory right to do so. The County’s affirmative defenses were pled as a matter of right in order to protect its right to assert such defenses in the event discovery and investigation reveal a basis or bases for them. Defendant has not had a reasonable opportunity to conduct a complete investigation of the facts or discovery of plaintiff’s injuries and damages.” Defendant then provided only one set of responses to (a), (b), and (c), although it asserted thirty-one affirmative defenses in its answer. (The Court notes that some of the purported “affirmative defenses”—such as “Attorneys’ Fees and Costs”—are not, in fact, defenses.)

Form Rog No. 16.1 requests information about Defendant’s contention, if any, that a third party contributed to the incident or injuries. Defendant objected, in part, that “the interrogatories in section 16.0, Defendant’s Contentions–Personal Injury, should not be used until the defendant has had a reasonable opportunity to conduct an investigation or discovery of plaintiff’s injuries and damages.” However, Defendant asserted affirmative defenses of Comparative Fault (Eleventh Affirmative Defense) and Contributory Negligence of Others (Twelfth Affirmative Defense), pleading that Plaintiff’s injuries were caused by others.

The answer to a complaint must contain the “general or specific denial of the material allegations of the complaint controverted by the defendant” and a “statement of any new matter constituting a defense.” (Code Civ. Proc., § 431.30, subds. (b)(1)-(2).) The same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required as in pleading a complaint. The answer must aver facts “‘as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.’” (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.) Affirmative defenses therefore should not be pleaded “in the event discovery and investigation reveal a basis or bases for them.” Additionally, if Defendant has not yet had a “reasonable opportunity to conduct an investigation or discovery of plaintiff’s injuries and damages” and cannot state any facts in response to Form Rog Nos. 15.1 and 16.1, then Defendant lacks a basis to assert the affirmative defenses of comparative fault and contributory negligence of others.

Defendant is wrong in arguing that its pleading of affirmative defenses without knowledge of any supporting facts is necessary to avoid waiving those defenses. Waiver is the “intentional relinquishment of a known right” (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195, fn. 4; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 983; Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 314) and does not apply here because Defendant is apparently unaware of any facts supporting its affirmative defenses or is withholding those facts in responding to discovery.

If Defendant does not already have a factual basis for its affirmative defenses, then they are improperly pleaded. The Court will set an OSC regarding whether any affirmative defenses should be stricken on this basis.

Form Rog No. 16.2 requests information about Defendant’s contention, if any, that Plaintiff was not injured in the incident. After objecting, Defendant responded, “Defendant has not had a reasonable opportunity to conduct discovery regarding Plaintiff’s damages. Defendant has no knowledge that Plaintiff sustained any injuries based on the body worn video of this incident. Discovery and investigation continue. Defendant reserves the right to amend/supplement this response.” This qualified response, limited to Defendant’s knowledge “based on the body worn video,” does not fully answer the question posed. The motion is granted for Form Rog No. 16.2.

The motion is GRANTED IN PART and DENIED IN PART as set forth above. Defendant is ordered to provide supplemental responses within 30 days. For any objections based on privilege, Defendant must provide a privilege log. (Code Civ. Proc., § 2031.240, subd. (c).)

An Order to Show Cause Re: Why Defendant’s Affirmative Defenses Should Not Be Stricken for Failure to Plead Facts as Required by Law is scheduled for August 20, 2024 at 8:30 a.m.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court