Judge Virginia Keeny, Case BC704265 2022-08-16 Tentative Ruling

Judge: Virginia Keeny, Case: BC704265, Date: 2022-08-16 Tentative Ruling

Case Number: BC704265 Hearing Date: August 16, 2022 Dept: W

CHRIS SERGE HANAYAN V. MYERS & SONS CONSTRUCTION L P ET AL.

plaintiff’s motions to compel further discovery

Date of Hearing: August 16, 2022 Trial Date: August 22, 2022

Department: W Case No.: BC704265

Moving Party: Plaintiff Chris Serge Hanayan

Responding Party: Defendant The People of the State of California, acting by and through The Department of Transportation

BACKGROUND

This case arises out of a multi-vehicle accident on April 21, 2017. On April 30, 2018, Plaintiff Chris Serge Hanayan (“Plaintiff”) filed a complaint against Defendants Myers & Sons Construction, L.P., Myers & Sons Construction, LLC, C and J Myers, Inc., Sterling Construction Company, Inc., Derrick Neal Wellano, Richard John Selhorst, Dakota James Lovejoy, Jackson Kaspar Gourdikian, and the State of California alleging the following causes of action: (1) Negligence, (2) Dangerous Condition of Public Property (Government Code section 835 et seq.), and (3) Negligent Act or Omission of Public Entity or Public Employee (Government Code section 815.2). On February 8, 2021, Plaintiff filed a First Amended Complaint for Negligence and Negligent Act or Omission of Public Entity or Public Employee (Government Code section 815.2). The Amended Complaint also named the State of California as a Defendant.

Defendant Jackson Kaspar Gourdikian filed a cross-complaint on March 11, 2019, asserting total equitable indemnity and contribution based upon comparative fault.

Defendant Dakota James Lovejoy filed a cross-complaint on June 28, 2019, asserting indemnification, declaratory relief, and apportionment of fault.

Defendants Myers & Sons Construction, L.P., Myers & Sons Construction, LLC, C and J Myers, Inc., Sterling Construction Company, Inc., Derrick Neal Wellano, and Richard John Selhorst filed a cross-complaint against Lovejoy and Gourdikian, asserting implied indemnity, contribution, declaratory relief, and equitable apportionment.

On February 7, 2020, Plaintiffs dismissed Defendant Jackson Kaspar Gourdikian. Defendant Lovejoy dismissed their cross-complaint on February 13, 2020, and on February 28, 2020, Defendant Gourdikian dismissed his cross-complaint.

On March 30, 2020, Plaintiff dismissed Defendant Myers & Sons Construction, L.P. On September 24, 2021, Plaintiff dismissed Defendants Sterling Construction Company, Inc., Myers & Sons Construction, LLC., and C And J Myers, Inc.

[TENTATIVE] RULING:

Plaintiff’s Motion to Compel Further Responses to Request for Production of Documents, Set One is GRANTED IN PART

Plaintiff’s Motion to Compel Further Responses to Form Interrogatories, Set One is DENIED

DISCUSSION

Plaintiff Hanayan moves for an order against Defendant The People of the State of California, acting by and through The Department of Transportation (erroneously sued and served as State of California) (“Caltrans”) compelling further responses to Plaintiff’s Request for Production of Documents, Set one; and Form Interrogatories, Set One.

Request for Production of Documents, Set One

Plaintiff seeks an order compelling Caltrans to provide further responses to Requests for Production of Documents, Set One, Nos. 4, 5, 7, 29, 35, 36, 41, 43, 44, 45, 54 and 55.

Defendant Caltrans contends they have served further responses to the request for production of documents prior to the hearing that satisfy all but two of the Plaintiff’s concerns: request number 35 (seeking Traffic Collision Reports for work zone collisions occurring between 2011 and 2017 where a vehicle hit an attenuator truck), and request number 36 (seeking Traffic Collision Reports (CHP-555) for work zone collisions occurring between 2011 and 2017 where a vehicle rear-ended a construction truck. (See Brandon Decl., Exh. I.)

Plaintiff contends Caltrans has still not provided code compliant responses to Nos. 7, 29, 35, 36, 41, 43, 44, 45, 54, and 55. Accordingly, the court finds Plaintiff’s motion to compel further responses to Requests for Production of Documents, Set One Nos. 4 and 5 MOOT.

In regard to Nos. 7 and 29, the court finds Caltrans’ supplemental response code compliant. Caltrans statement is that they have previously produced responsive documents and what the documents are. However, the court does agree with Plaintiff that Caltrans should produce a privilege log if they are withholding documents based on attorney-client privilege/work product doctrine. As such, Caltrans is ordered to produce a privilege log of documents they believe are objectionable based on privilege.

As for RPDs Nos. 35 and 36, Defendant Caltrans argues the requests are too burdensome, the unique set of facts in the instant matter make the requests regarding similar work zone collisions irrelevant, and the information sought is privileged.

RPD No. 35 requests: True and correct copies of all Traffic Collision Reports (CHP-555) for work zone collisions occurring between 2011 and 2017 where a vehicle hit an attenuator truck. RPD No. 36 requests: True and correct copies of all Traffic Collision Reports (CHP-555) for work zone collisions occurring between 2011 and 2017 where a vehicle rear-ended a construction truck.

The court first addresses Caltrans’ position that the reports are federally privileged. The court agrees the documents are privileged pursuant to 23 U.S.C. 407. As amended, § 407 now reads: “Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.”

In Pierce County, Wash. v. Guillen (2003) 537 U.S. 129, the court held section 407 “protects only information complied or collected for [federally funded safety improvement] purposes, and does not protect information compiled or collected for purposes unrelated to [federally funded safety improvement] projects, as held by the agencies that compiled or collected that information, ...” (Pierce County, Wash. v. Guillen (2003) 537 U.S. 129, 131.) In support of their contention that the TCRs are collected for highway safety improvement purposes under section 148, Caltrans submits the declaration of Richard F. Ryan, a registered civil engineer. Mr. Ryan attests Caltrans prepares, compiles, and collects a wide variety of reports, surveys, schedules, lists, and data to assist its engineers accomplish the goals formerly set out in section 152 and now enumerated in section 148. (Ryan Dec. ¶18.) As such, the court finds Caltrans has set forth sufficient evidence to demonstrate that the documents and information it claims are privileged were “compiled or collected for the purpose(s)” enunciated in section 407.

This conclusion is further is supported by the court’s ruling in Ford v. City of Los Angeles (2020) 4 7 Cal.App.5th 277. In that case, the plaintiff sued the City claiming an intersection was a dangerous condition. The plaintiff sought to have the trial court admit the City's

application to improve the intersection pursuant to the Highway Safety Improvement Program (HSIP); due to that application, federal funds were allocated to improve the intersection, but unfortunately the improvement was not completed before the plaintiff's accident. The plaintiff claimed that these documents would prove that the City knew the intersection was dangerous. The trial court precluded the admission and the Court of Appeal affirmed, holding that section 409 precluded their use at trial. The

Court, relying on Pierce County, supra, noted that section 409 protects "any information that an agency collects from other sources." (Ford, supra, 47 Cal.App.5th at 284.) Section 409 protects the "reports, surveys and data." (Id.) The Court further noted that "Congress enacted section 409 to quell states fears that diligent efforts to identify roads eligible for aid under [federal highway safety programs] would increase the risk of liability for accidents that took place at hazardous locations before improvements could be made." (Id. at 285.)

Plaintiffs contend that the FCRs have other uses than compliance with the federal highway

safety improvement program, and thus should be disclosed, a possibility recognized by the Supreme Court in Pierce. The evidence presented here, however, is that these reports were conceived at their inception as part of a program to comply with the federal act so as to reveive federal funding. As set forth in the declaration of Mr. Ryan, the grant funds originally received by the state were used to develop TCRs, CHP forms 555 and 556, the Statewide Integrated Traffic Records System ("SWITRS"), and TASAS programs to analyze the data collected by the traffic collision reports. TCRs were specifically developed as part of a federally funded safety project, completed in 1971, to bring the State into compliance with 23 U.S.C. § 148. TCRs are. the foundation of the State's highway safety improvement program. TCRs provide the fundamental data that allows the State "to perform safety problem identification and countermeasure analysis" and in turn "evaluate and plan" highway safety improvement projects that are eligible for federal funding under section 148. (Ryan Deel., ¶¶ 22- 29.) As such, they fall within the protections of Section 407.

Additionally, the court finds the requests are burdensome as currently framed. Caltrans has presented sufficient evidence to establish that compliance with the request would require manual review of approximately 30,000 accident reports to determine whether they involved accidents with attenuator trucks or construction vehicles. This project would be extremely time-consuming and expensive. The burden of such a search far outweighs the limited probative value of any information that might be disclosed. Every accident is unique, but it does not require reports of similar collisions for a jury to know that the hazard of running into a construction vehicle is extreme and that proper safeguards must be implemented before a slow moving vehicle takes over a lane usually used for fast-moving vehicles.

Lastly, for Nos. 41, 43, 44, 45, 54, and 55, the court finds Caltrans’ supplemental response code compliant. Caltrans statement is that they have previously produced responsive documents and what the documents are. However, the court does agree with Plaintiff that Caltrans should produce a privilege log if they are withholding documents based on attorney-client privilege/work product doctrine. As such, Caltrans is ordered to produce a privilege log of documents they believe are objectionable based on privilege.

Form Interrogatories, Set One

Plaintiff seeks an order compelling Caltrans to provide further responses to Form Interrogatories, Set One, Nos. 12.7, and 17.1 relating to admissions numbers 3, 4, 12, 14, 15, 16, 17, and 18.

Defendant Caltrans contends they have served further responses to the request for production of documents on August 2, 2022. (See Brandon Decl. ¶5, Exh. A.) However, as to admissions 3 and 4, Caltrans argues it fully answered those interrogatories because Plaintiff was obviously a cause of this accident by agreeing to be a passenger in a car driven by his obviously intoxicated friend instead of doing the reasonable alternative of taking a taxi or Uber or having someone else pick him up. This is borne out by the testimony of numerous witnesses and the documents produced in this case, of which his attorneys are well aware.

Plaintiff agrees Set One, Nos. 12.7, and 17.1 relating to admissions numbers 12, 14, 15, 16, 17, and 18 are MOOT. However, as for denial of admissions 3 and 4, Plaintiff argues the responses are evasive and incomplete as Caltrans provides facts related to Gourdikian, instead of Plaintiff and Caltrans response that “documents produced by all parties and third parties to date, including the CHP traffic collision report, and all depositions and discovery take to date” is overly broad. The court disagrees.

Although Plaintiff may be unhappy with Caltrans’ response, Caltrans’ responses are not evasive and incomplete. They describe how they believe Plaintiff was the cause of the incident or substantial factor in causing the harm Plaintiff sustained as a result of the incident. Moreover, Caltrans refers to where Plaintiff can obtain the information they seek – CHP traffic report, depositions, and discovery.

Accordingly, the court denies Plaintiff’s request for further responses to Set One. Nos. 12.7 and 17.1 as to denial of admissions 3 and 4.