Judge Upinder S. Kalra, Case 19STCV18984 2022-10-06 Tentative Ruling

Judge: Upinder S. Kalra, Case: 19STCV18984, Date: 2022-10-06 Tentative Ruling

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Case Number: 19STCV18984 Hearing Date: October 6, 2022 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: October 6, 2022

CASE NAME: Julio Espinoza v. Union Pacific Railroad Company, et al.

CASE NO.: 19STCV18984

PLAINTIFF’S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES

MOVING PARTY: Plaintiff Julio Espinoza

RESPONDING PARTY(S): Defendant Union Pacific Railroad Company

REQUESTED RELIEF:

1. An order compelling Defendant to provide further responses to RPD Set No. 3, Nos. 105-114

TENTATIVE RULING:

1. Motion to Compel Further is GRANTED.

2. Request for Sanctions will be considered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On May 31, 2019, Plaintiff Julio Espinoza (“Plaintiff”) filed a complaint against Union Pacific Railroad Company, H & M International Transportation, Inc., Donald Gonzales, and P & B Intermodal Services, LLC (“Defendants.”) The complaint alleged six causes of action based in strict liability and negligence. The complaint alleges that while Plaintiff was working for Defendant Union Pacific’s Commerce yard, a crane used to load containers struck the cone vehicle he was working on, which resulted in Plaintiff sustaining injuries.

On July 12, 2019, Defendant Union Pacific Railroad Company filed an Answer.

On July 18, 2019, Defendant H & M International Transportation, Inc., filed an Answer and a Cross-Complaint.

On December 10, 2019, Defendant Donald Gonzales filed an Answer.

On September 25, 2020, P & B Intermodal Services, LLC, filed an answer.

On June 22, 2021, Plaintiff and P & B Intermodal Services, LLC, filed a stipulation of settlement to be in good faith.

On June 23, 2022, Plaintiff filed the current Motion to Compel Further Responses to Set No. 2.

On September 7, 2022, the Court directed Plaintiff to file and serve the motion and continued the hearing to October 6, 2023.

Meet and Confer:

The Declaration of Mark P. Dupont indicates that the Defendant was ordered to produce responses by the Court on March 11, 2022; while late, Defendant eventually produced documents on April 29, 2022. (Dec. Dupont, ¶ 16.) On May 19, 2022, Plaintiff sent counsel a letter explaining why the responses were deficient. Mr. Dupont also indicates that he had not heard back from counsel. (Dec. Dupont, ¶ 17.) This satisfies the meet and confer requirement.

Separate Statement

Under Rule 3.1345, a Separate Statement must include the request, the response, and why a further response is provided. Here, the Plaintiff’s Separate Statement has the required information.

Timely:

Under CCP § 2030.300, a party has 45 days after receipt of the verified responses to file a motion to compel further. Here, the responses were unverified. (Dec. Dupont, Ex. 4.) As such, the timing under CCP § 2030.300 does not apply.

LEGAL STANDARD

The propounding party may bring a motion to compel further responses to a demand for production if the propounding party deems that production is deficient, incomplete, or contains meritless objections. CCP § 2031.310(a). The legal burden to justify refusing or failing to provide discovery lies with the objecting party. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220).

The motion must be accompanied by a good-faith meet-and-confer declaration. CCP § 2031.310(b). “A determination of whether an attempt at informal resolution is adequate . . . involves the exercise of discretion.” (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016). “The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant. Judges have broad powers and responsibility to determine what measure and procedures are appropriate in varying circumstances.” Id.

CCP § 2031.310 provides the court shall apposes monetary sanctions against a person, party, or attorney that unsuccessfully makes or opposes a motion to compel further response, unless that subject to sanction acted “with substantial justification or other circumstances make the imposition of sanctions unjust.” CCP § 2023.010(h). The court “may impose a monetary sanction” against any attorney or party, or both, to pay the reasonable expenses, including attorney fees, if there has been a “misuse of the discovery process. CCP § 2023.030(a). “A trial court has broad discretion when imposing a discovery sanction.” (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559).

ANALYSIS:

Plaintiff moves the court to compel Defendant Union Pacific Railroad Company to provide full and complete responses to the RPDs Set No. 3. Plaintiff seeks documents to FRPD Nos. 105-114. Defendant claims that they have responded to the best of their ability but after a diligent search, cannot produce the requested documents. Plaintiff insists that the responses lack foundation and are not Code compliant. The Court agrees that the responses are not Code compliant. Stating that after a “diligent and reasonable inquiry” has led to the discovery that the documents if thy exist, may be in the possession, custody or control of P & B Intermodal is not a Code Compliant response. (Supp. Response Rice Dated 10-3-22.) ¶The Code further requires that the responding party attest that the items “have never been, or is no longer, in the possession, custody, or control of the responding party.” (CCP § 20131.230, emphasis added.)

No. 105 and 106: All DOCUMENTS or ELECTRONIC RECORDS from YOUR and/or P&B’s program MYASSET STATUS as it pertains to Crane UP90393 AND all UPRC cranes located at UPRC’s E. LA./Commerce Yard where this INCIDENT occurred that that were in service at any time from February 1, 2017 through September 30, 2017.

These requests go to whether there were other cranes available on the date of the incident, thereby forcing H&M, the crane operator who was under contract with Defendant UPRC who owned the cranes, to use a defective crane that eventually led to Plaintiff’s injuries. Even though Defendant UPRC indicated that he could not locate these responses, the deposition of P&B’s PMQ indicated that these records have been kept for UPRC since February 2017. (Dec. Dupont, Ex. 6, Depo. Bartley.)

Defendant must provide further responses because there is evidence that these documents related to MyAsset Status have been kept by P&B. (Dec. Dupont, Ex. 6, Depo. Bartley, pg. 36: 25 – 37:8.) Further, this information is directly relevant to the matter because it goes to the availability of cranes and whether a different crane could have been used instead of the one that eventually injured Plaintiff.

Motion to Compel Further Responses as to Nos. 105-106 is GRANTED.

No. 107: All Work Asset Orders for the time period of February 1, 2017 through September 30, 2017 for all UPRC cranes located at UPRC’s E. LA./Commerce Yard that that were in service at any time from February 1, 2017 through September 30, 2017, except for Crane UP90393.

These requests seek completed work asset orders for the other cranes. One of these work orders is completed “every 250 hours in addition to the EIM entry.” (Dec. Dupont, Ex. 6, Depo. Bartley, pg. 33: 5-16.) Moreover, Plaintiff also argues that documents have been provided with respect for the crane at issue. (Sep. Stmt. 7: 24-26.)

Similar to above, Defendant must provide further responses because these documents are directly relevant. These documents have been provided for the crane at issue; information about the other potential available cranes is directly related to whether another crane could have and should have been used instead of the crane that caused Plaintiff’s injuries.

Motion to Compel Further Responses as to Nos. 107 is GRANTED.

No. 108-114: Asset Work Orders that correspond with all 50, 125, 250, 500, 750, 1000, and 2000 hour inspections as part of the “PM” program for Crane UP 90393 from February 1, 2017 through September 30, 2017.

These requests seek Work Asset Orders for the specific crane at different hour inspections. Defendant’s response in the separate statement stated that it would produce the EIM document. However, as Plaintiff argues, the EIM and Work Asset Order documents are two separate documents. (Dec. Dupont, Ex. 6, 7, 9.)

Again, Defendant must provide further responses because these documents are directly relevant; the documents relate to the crane at issue. Moreover, even though Defendant indicated that it would produce documents, the Separate Statement indicates that Defendant produced and referred to a different document. (Sep. Stmt. 9: 1-3.)

Motion to Compel Further Responses as to Nos. 108-114 is GRANTED

Sanctions:

Plaintiff requests $2,200 in sanctions and costs of $101.30. This is based on an hourly rate of $350.00 with 6.3 hours preparing the current motion, plus the above costs. The court “shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further…” As such, sanctions are mandatory unless the Court makes a finding that the party subject to the sanction acted with substantial justification or imposition of the sanction would be unjust. The Court will make this determination at the hearing.

Conclusion:

For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Compel Further Responses as to Nos. 105-114 is GRANTED.

Request for Sanctions is Deferred.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: October 6, 2022 __________________________________ Upinder S. Kalra

Judge of the Superior Court

PLAINTIFF’S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SET 2

MOVING PARTY: Plaintiff Julio Espinoza

RESPONDING PARTY(S): Defendant Union Pacific Railroad Company

REQUESTED RELIEF:

1. An order compelling Defendant to provide further responses to RPD Set No. 2, Nos. 89 and 104

TENTATIVE RULING:

1. Motion to Compel Further is GRANTED.

2. Request for Sanctions will be considered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On July 12, 2019, Defendant Union Pacific Railroad Company filed an Answer.

On July 18, 2019, Defendant H & M International Transportation, Inc., filed an Answer and a Cross-Complaint.

On December 10, 2019, Defendant Donald Gonzales filed an Answer.

On September 25, 2020, P & B Intermodal Services, LLC, filed an answer.

On June 22, 2021, Plaintiff and P & B Intermodal Services, LLC, filed a stipulation of settlement to be in good faith.

On June 23, 2022, Plaintiff filed the current Motion to Compel Further Responses to Set No. 2.

On September 7, 2022, the Court continued the Motion to October 6, 2023.

Meet and Confer:

The Declaration of Mark P. Dupont indicates that the Defendant was ordered to produce responses by the Court on March 11, 2022; while late, Defendant eventually produced documents on April 29, 2022. On May 19, 2022, Plaintiff sent counsel a letter explaining why the responses were deficient. Mr. Dupont also indicates that he had not heard back from counsel. This satisfies the meet and confer requirement.

Separate Statement

Under Rule 3.1345, a Separate Statement must include the request, the response, and why a further response is provided. Here, the Plaintiff’s Separate Statement has the required information.

Timely:

Under CCP § 2030.300, a party has 45 days after receipt of the verified responses to file a motion to compel further. Here, the responses were unverified. As such, the timing under CCP § 2030.300 does not apply.

LEGAL STANDARD

ANALYSIS:

Plaintiff moves the court to compel Defendant Union Pacific Railroad Company to provide full and complete responses to the RPDs Nos. 2. Plaintiff seeks documents to RFPD No. 89 and No. 104.

No. 89:

All DOCUMENTS or ELECTRONIC RECORDS that show the percentage of cranes that were available to perform lift work of containers each day in August 2017 at YOUR East Los Angeles/Commerce yard where this INCIDENT occurred

Plaintiff contends that this information shows percentage of cranes available, which he has since learned is called My Asset Status record. This information is directly relevant to the current matter. Defendant cannot object to producing this information as Defendant failed to respond and was ordered to produce documents. While Defendant indicated that it searched and was unable to find the document, Plaintiff argues that Mr. Bartley’s testimony indicates these documents are available. (Dec. Dupont, Ex. 6.)

Defendant first requests that due to previous counsel’s failure to properly investigate and communicate with Defendant, the Court allow Defendant additional time to search and contact third parties who have the records from the My Asset system. Second, Defendant rightfully stated that it does not have the documents has the My Asset Status is not owned by Defendant; rather, it is owned by a third party and does not have access to this system. Even still, Defendant provided supplemental responses and “plaintiff can calculate the percentage of cranes available on the date of the incident.” (Opp. 6: 18-20.)

Defendant’s prior response indicating that Plaintiff can sort through the 440 pages of documents document is not a Code compliant response. Now, Defendant has updated a response dated October 3, 2022, attesting that they produced all records from 2018 forward and that records prior to 2018 do not exist. It is unknown if the responses are sufficient. To the extent that they are deficient, Defendant must provide documents.

Motion to Compel Further Responses as to No. 89 is GRANTED.

No. 104: The crane maintenance history for all lift cranes at YOUR East Los Angeles/Commerce yard where this INCIDENT occurred for the calendar year 2017 except for UPRC crane UP90393 as this records was produced by YOU in discovery.

This request seeks computer records that concern maintenance of cranes. This information is directly relevant to the issue: whether another crane could have been used instead of the crane that injured Plaintiff. Again, Defendant waived objections by failing to respond. Further, when Defendant did respond, it referenced the record for the crane at issue, not the other cranes. This information is directly relevant as it may demonstrate that other cranes were available at the time of the incident.

Defendant indicates that it has since supplemented the responses on August 26, 2022, as indicated in the Declaration of Elise Rice, Exhibit 5. This exhibit provides an Excel spreadsheet of the EIM record for the crane.

Previously, it appeared to the Court that Defendant’s response was deficient. As indicated in the Declaration of Mark Dupont filed with the reply, the previously sent EIM record contains 17 columns of information, but the current supplemental documents contain 10 columns. For example, Exhibit 2 has columns for information such as Condition code and repair complete date and time. In the supplemental Declaration of Rice dated October 3, 2022, counsel declares that in paragraph 10, that all records for crane maintenance dating back to 2017 with all columns requested by Plaintiff were produced. It is unclear if this satisfies the problems. If they do not, Defendant is required to provide further responses.

Motion to Compel Further Responses as to No. 104 is GRANTED.

Sanctions:

Plaintiff requests $2,200 in sanctions and costs of $101.35. This is based on an hourly rate of $350.00 with 6.3 hours preparing the current motion, plus the above costs. While Defendant claims that it was not at fault due to previous counsels failure, sanctions are mandatory under CCP § 2031.310(h). The court “shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further…” As such, sanctions are mandatory unless the Court makes a finding that the party subject to the sanction acted with substantial justification or imposition of the sanction would be unjust. The Court will make this determination at the hearing.

Conclusion:

For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Compel Further is GRANTED.

Request for Sanctions is Deferred.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: October 6, 2022 __________________________________ Upinder S. Kalra

Judge of the Superior Court