Judge Upinder S. Kalra, Case 21STCV25966 2023-04-13 Tentative Ruling

Judge: Upinder S. Kalra, Case: 21STCV25966, Date: 2023-04-13 Tentative Ruling

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Case Number: 21STCV25966 Hearing Date: April 13, 2023 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: April 13, 2023

CASE NAME: Hiendrick Vartani v. Interinsurance Exchange of the Automobile Club

CASE NO.: 21STCV25966

MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY – REQUESTS FOR PRODUCTION OF DOCUMENTS

MOVING PARTY: Defendant Interinsurance Exchange of the Automobile Club

RESPONDING PARTY(S): Plaintiff Hiendrick Vartani

REQUESTED RELIEF:

1. An order compelling Plaintiff provide further responses to Request for Production of Documents Nos. 15, 60, 61, and 68.

TENTATIVE RULING:

1. Motion to Compel Further Responses as to Requests for Production of Documents is GRANTED.

2. Request for Sanctions is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On July 14, 2021, Plaintiff Hiendrick Vartani (“Plaintiff”) filed a complaint against Defendnat Interinsurance Exchange of the Automobile Club (“Defendant.”) The complaint alleged two causes of action: (1) Breach of Contract and (2) Breach of Duty of Good Faith and Fair Dealing – Bad Faith. The complaint alleges that Plaintiff had an insurance policy with Defendant, which was to provide coverage to Plaintiff. Plaintiff made an insurance claim based on damage to the underside of Plaintiff’s vehicle, but Defendant failed to properly inspect the vehicle and denied the claim.

On September 13, 2021, Defendant filed an Answer.

On November 4, 2022, Defendant filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication.

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:

Defendant moves to compel Plaintiff to provide further responses to Requests for Production to Request Nos. 15, 60, 61, and 68.

Background:

Defendant served RPD requests on Plaintiff on September 29, 2022, which sought documentation that related to the repair work on the damaged vehicle and Plaintiff’s phone records. On October 31, 2022, Plaintiff served responses, which contained “boilerplate, meritless objections to Request Nos. 15, 60, 61, and 68 and failed to produce any responsive documents, although Plaintiff advised that he was “in the process of gathering” documents responsive to Request Nos. 15, 60, and 61 and would “supplement his response as soon as non-privileged documents become available.”” (Motion 9: 3-6.) After the parties spoke, Plaintiff served unverified supplemental responses on November 18, 2022. Again, after the parties spoke and Plaintiff was given an extension to provide verified supplemental responses, Plaintiff served more unverified response on January 23, 2023.

The requests are as follows:

RPD No. 15:

All DOCUMENTS that evidence or relate to all maintenance work performed on the SUBJECT VEHICLE at any time during YOUR ownership of the SUBJECT VEHICLE, including, but not limited to, all receipts, invoices, billing statements, credit card statements, emails, letters, reports, photographs, videos, and audio recordings.

RPD No. 60:

All DOCUMENTS that evidence and/or relate to any maintenance and/or repair work performed on the SUBJECT VEHICLE between the date YOU purchased the SUBJECT VEHICLE and the LOSS, including, but not limited to, all contracts, estimates, reports, invoices, receipts, maintenance records, and maintenance manuals.

RPD No. 61:

All DOCUMENTS that evidence and/or relate to any aftermarket parts installed on the SUBJECT VEHICLE between the date YOU purchased the SUBJECT VEHICLE and the LOSS, including, but not limited to, all contracts, estimates, reports, invoices, receipts, photographs and videos.

RPD No. 68:

All telephone records obtained directly from YOUR telephone or cellular service provider (not downloaded from the internet) for the period of November 1, 2019 through December 1, 2019 for any and all cellular and landline telephone accounts in YOUR name or that YOU were using, including call logs and text messages

Defendant argues that Plaintiff should be compelled to provide further responses because Plaintiff’s supplemental responses are deficient. First, the supplemental responses are not verified, despite “repeated requests by defense counsel.” (Motion 12: 5-7.) Second, Plaintiff’s responses do not comply with CCP § 2031.210. Plaintiff first indicated that he was “gathering” documents and later stated he was “unable to respond to this request.” The requests do not indicate that Plaintiff completed a diligent search and reasonable inquiry, which is required under CCP § 2031.230. Regarding some of the documentation that was produced, Plaintiff has failed to provide any documentation about the $35,000 replacement engine. As for telephone documentation, Plaintiff has failed to produce them despite acknowledging that “he is required to produce his telephone records as he has a legal right to obtain them.” (Motion 14: 2-4.)

Defendant also argues that good cause exists to have Plaintiff provide further documentation. These requests seek documentation that go directly to whether Defendant was correct in denying coverage based on the damage to Plaintiff’s car. For example, some of the documents produced by Avant Garde Xotics indicate that the car was brought in for $25,000 worth of work two months before the loss. As for the phone records, Plaintiff claims he called Avant Garde Xotics at the point where the car was damaged on Los Angeles Crest highway; thus, Defendant seeks to confirm whether this occurred as claimed.

Plaintiff argues that they have already responded to the RPDs. Specifically, on March 28, 2023, Plaintiff served supplemental responses. Plaintiff has provided Avant Garde Xotic’s Records prior to loss, the Auto Gallery’s Records, the Wire of Engine, Avant Garde Xotic’s pictures after loss, and phone records. Plaintiff also indicates that the wrong bank statement was inadvertently sent and will be produced. (Opp. 4: 1-3.)

Plaintiff further argues that phone records are protected by a constitutional right to privacy, citing to Williams v. Superior Ct. (2017) 3 Cal. 5th 531. Plaintiff contends that phone records are private and Plaintiff “should reasonably expect that his work phone records are subject to a high degree of protection.” (Opp. 5: 7-8.) Moreover, Plaintiff has produced his private telephone records; Plaintiff’s work phone records should remain confidential as Plaintiff is a Radiologist and his work phone is “associated with sensitive information of many patients and doctors he works with and communicates with. Even still, Plaintiff argues that Defendant would not be able to provide a legitimate interest in the phone records, based on the standards set forth in Britt v. Sup. Ct (1978) 20 Cal. 3d 844, 852-864.

The Court finds that the requested documents are relevant and must be produced. . “Section 2017.010 and other statues governing discovery ‘must be construed liberally in favor or disclosure unless the request is clearly improper by virtue of well-established causes of denial’” (Yelp Inc. v. Superior Court (2017) 17 Cal.App.5th 1, 15). These documents, such as prior work orders, go directly to whether Defendant was reasonable in denying Plaintiff’s claim. Although Defendant has recently produced additional documents and has provided code compliant responses as to those documents, there appear to be other document that have not been produced and, at least as to those documents, the responses are not code compliant. (SEE CCP § 2031.230.) Accordingly, the Defendant has a valid basis to request additional code compliant responses. Moreover, Defendant has a reasonable basis to question the responses. Namely, as Defendant points out in the Reply, information about the $35,000 engine replacement has yet to be provided. As for the phone records, the Court finds Plaintiff’s argument concerning privacy unavailing. While there may be some issues concerning other individual’s privacy, there are ways to ensure that non-parties’ information is protected, while still complying with requests. For example, Plaintiff can request a protective order or redact the names and information of others, and only provide the phone records that relate to this information. Moreover, the telephone record information is relevant as Plaintiff informed Defendant that he used the numbers to call about the accident.

Therefore, Motion to Compel Further is GRANTED, as to all RPDs.

Sanctions:

Under CCP § 2023.030, the court can impose monetary sanctions for the misuse of discovery. Additionally, the court can also impose sanctions under CCP § 2023.010. Defendant requests $3,607.50. This is based on an hourly rate of $215.00, with 10 hours preparing the motion, an anticipatory 4.5 to review and prepare the reply, and 2 hours to attend the hearing Additionally, another $60.00 for filing the motion. Plaintiff argues that sanctions are unwarranted and that Defendant has failed to demonstrate a need for this information or how it is relevant.

Since the Court found above that these requests were directly relevant, sanctions are appropriate. The Court awards sanctions totaling $3,177.50 against the Keosian Law LLP.

Conclusion:

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

Motion to Compel Further is GRANTED, as to all RPDs. Request for Sanctions against the Keosian Law LLP is GRANTED payable within 30 days of service of this order.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: April 13, 2023 __________________________________ Upinder S. Kalra

Judge of the Superior Court