Judge William A. Crowfoot, Case 20STCV21089 2022-08-31 Tentative Ruling

Judge: William A. Crowfoot, Case: 20STCV21089, Date: 2022-08-31 Tentative Ruling

On June 4, 2020, Michael Youssef (“Plaintiff”) initiated the present action by filing a Complaint against Bodega Latina Corp., Inc., Inez Galvan, and Does 1 through 100 (collectively, “Defendants”). Plaintiff’s Complaint alleges a single cause of action for “Negligence”. Plaintiff’s Complaint arises from a slip and fall, which occurred on August 19, 2018. On that date, Plaintiff frequented a grocery store owned and operated by Defendant Bodega Latina Corp., Inc., and slipped and fell on a wet surface, sustaining severe and permanent injuries. (Compl., ¶¶ 13-15.)

On August 4, 2022, Plaintiff filed a Motion to Compel Further Responses to Plaintiff’s Requests For Production of Documents, Set No. Three and Request for Sanctions against Defendant Bodega Latina Corp., Inc. and Its Counsel (hereinafter, “Motion”).

On August 18, 2022, Defendant Bodega Latina Corp., Inc. filed an Opposition to Plaintiff’s Motion.

Plaintiff filed an untimely Reply in response to Defendant Bodega Latina Corp., Inc.’s Opposition on August 26, 2022, after the preparation of this ruling. The Court, nonetheless considered the Reply.

The Court now considers Plaintiff’s Motion, as well as Defendant Bodega Latina Corp., Inc.’s Opposition thereto.

The Court recognizes there is considerable procedural history that has been omitted from the “Background” Section of this Order. As relevant, the Court discusses the omitted procedural history in the “Discussion” Section of this Court’s Order.

“Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” (Code Civ. Proc., § 2031.010, subd. (a).)

“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities[;] (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item[; or] (3) An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc., § 2031.210, subd. (a).)

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

A demanding party’s motion for an order compelling a further response must “set forth the facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) Further, a demanding party’s motion for an order compelling a further response must “be accompanied by a meet and confer declaration under Section 2016.040.” (Id., § 2031.310, subd. (b)(2).) Pursuant to Section 2016.040, “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Id., § 2016.040.)

A demanding party’s motion for an order compelling a further response must, additionally, be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345, subd. (a)(3).) The separate statement must comply with the requirements set forth in California Rules of Court, rule 3.1345, subdivision (c). (Id., rule 3.1345, subd. (c).)

Further, “[u]nless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.” (Code Civ. Proc., § 2031.310, subd. (c).)

“Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.310, subd. (h).)

Plaintiff presently moves for an Order compelling Defendant Bodega Latina Corp., Inc.’s (“Defendant”) further response to Requests for Production of Documents, Set No. Three, Request Nos. 53, 54, 55, 57, 68, and 69, pursuant to Code of Procedure section 2031.310, subdivision (a)(3). (Notice of Mot., at p. 1:25-28; Code Civ. Proc., § 2031.310, subd. (a)(3) [“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (3) An objection in the response is without merit or too general.”].)

The Court finds Plaintiff has properly met and conferred with Defendant, prior to filing the instant Motion. (Code Civ. Proc., § 2031.310, subd. (b)(2); Gill Decl., ¶¶ 9-11, Ex. 6.)

B. Timeliness of Motion under Code of Civil Procedure Section 2031.310, Subdivision (c)

The Court considers whether Plaintiff’s Motion is timely, pursuant to Code of Civil Procedure section 2031.310, subdivision (c). (Code Civ. Proc., § 2031.310, subdivision (c) [“Unless notice of this motion is given within 45 days of the service of the verified response . . . the demanding party waives any right to compel a further response to the demand.”].) The following procedural history is central to Court’s determination.

On February 9, 2021, Plaintiff served the subject Requests for Production of Documents, Set No. Three, upon Defendant by electronic service. (Gill Decl., ¶ 3, Ex. 1.)

Subsequently, on March 30, 2021, Defendant served responses to Plaintiff’s Requests for Production of Documents, Set No. Three, by electronic service. (Gill Decl., ¶ 4, Ex. 2.)

Believing Defendant’s responses to be deficient, on approximately May 14, 2021, Plaintiff filed and served a Notice of Motion to Compel Further Responses to Plaintiff’s Requests for Production of Documents, Set No. Three, and Request for Sanctions against Defendant (hereinafter, “First Motion”). Plaintiff did not file or serve a Memorandum of Points and Authorities, Separate Statement, or Declaration along with the above Notice of Motion. Plaintiff’s First Motion was scheduled to come before the Court for hearing on August 5, 2021.

The Court notes Plaintiff’s First Motion is separate and distinct, and was filed prior to, the Motion presently considered by this Court. The Court additionally notes, Plaintiff’s First Motion and Plaintiff’s present Motion largely concern the same discovery—Plaintiff’s First Motion moves to compel Defendant’s further response to Plaintiff’s Requests for Production of Documents, Set No. Three, Request Nos. 53 through 70, and Plaintiff’s present Motion moves to compel Defendant’s further response to Request Nos. 53, 54, 55, 57, 68, and 69. Lastly, the Court recognizes that Plaintiff’s First Motion was filed in a timely manner, within forty-five (45) days from receipt of Defendant’s response, as required by Code of Civil Procedure section 2031.310, subdivision (c). (Code Civ. Proc., §§ 2031.310, subd. (c), 1010.6, subd. (a)(4)(B) [As Defendant served a response by email on March 30, 2021, Plaintiff was required to file a motion to compel further responses no later than May 18, 2021].)

Concurrent with filing the First Motion, on May 14, 2021, Plaintiff filed a “Notice of Informal Discovery Conference Re: Defendant’s Responses to Plaintiff’s Request for Production of Documents, Set No. Three.” An Informal Discovery Conference (“IDC”) with respect to the Requests identified within Defendant’s First Motion (i.e., Request Nos. 53 through 70) was scheduled to commence before the Court on June 9, 2021.

On June 9, 2021, the Court held the IDC with respect to Plaintiff’s First Motion. The Court’s Minute Order indicates, “[t]he issues are resolved this date”. (Minute Order Re: Informal Discovery Conference (IDC), filed June 9, 2021.) Given the resolution of the issues presented within Plaintiff’s First Motion, the Court instructed Plaintiff to take Plaintiff’s First Motion off calendar. (Ibid. [“Counsel are to take off any motions regarding the issues that were resolved this date.”].)

Plaintiff refrained from taking Plaintiff’s First Motion off-calendar, and, instead, opted to keep Plaintiff’s First Motion on-calendar and instead continued the hearing date upon Plaintiff’s First Motion various times, as provided below.

On July 13, 2021, per Plaintiff’s filing of a “Notice of Continuance of Hearing”, Plaintiff continued the hearing upon Plaintiff’s First Motion from August 5, 2021 to September 17, 2021.

On August 30, 2021, per Plaintiff’s request with this Court, Plaintiff continued the hearing upon Plaintiff’s First Motion from September 17, 2021 to October 28, 2021.

On October 1, 2021, Plaintiff continued the hearing upon Plaintiff’s First Motion from October 28, 2021, to January 7, 2022.

On January 7, 2022, Plaintiff’s First Motion effectively came before this Court for hearing. Plaintiff did not appear. During the hearing, the Court noted that the parties “attended an IDC addressing the issues regarding this set of discovery[,]” and the issued had fully resolved. (Minute Order Re: Hearing on Motion to Compel Further Discovery Responses, filed January 7, 2022.) The Court further noted that, during the IDC, the Court instructed Plaintiff to take Plaintiff’s First Motion off-calendar, in the event the issues included therein had been fully resolved. (Ibid.) The Court found, although Plaintiff failed to take Plaintiff’s First Motion off-calendar, it appears that the sum of the issues presented within Plaintiff’s First Motion were resolved during the previously-conducted IDC. (Ibid.) Additionally, the Court noted that Plaintiff’s counsel failed to appear at the hearing to inform the Court otherwise. (Ibid.) Accordingly, as Plaintiff failed to inform the Court of any outstanding discovery issues concerning the Requests contemplated by Plaintiff’s First Motion, the Court ordered Plaintiff’s First Motion taken off-calendar. (Ibid.)

Subsequently, on April 29, 2022, Plaintiff filed a Motion to Set Aside and Vacate Court Order of January 7, 2022 (hereinafter, “Motion to Set Aside”). Pursuant to Plaintiff’s Motion to Set Aside, Plaintiff moved this Court to vacate the Court’s January 7, 2022 Order, which ordered Plaintiff’s First Motion off-calendar, and requested that this Court place Plaintiff’s First Motion back on calendar for consideration and hearing. Plaintiff made the Motion to Set Aside pursuant to Code of Civil Procedure section 473, subdivision (b), contending that Plaintiff’s counsel’s failure to appear for hearing upon Plaintiff’s First Motion and notify the Court of outstanding discovery issues was a result of Plaintiff’s counsel’s inadvertence, mistake, and excusable neglect. (Code Civ. Proc., § 473, subd. (b) [“The court may . . . relieve a party of his or her legal representative from a . . . order . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”].) Plaintiff’s Motion to Set Aside makes clear that the discovery dispute addressed within Plaintiff’s First Motion has not fully resolved. Rather, despite agreeing to provide responsive documents during the IDC, Defendant had failed to do so, and, therefore, hearing Plaintiff’s First Motion on the merits is necessary.

Concurrent with filing Plaintiff’s Motion to Set Aside, on April 29, 2022, Plaintiff additionally filed a second Notice of Motion to Compel Further Responses to Plaintiff’s Requests for Production of Documents, Set No. Three and Request for Sanctions against Defendant (hereinafter, “Second Motion”). Plaintiff’s Second Motion was properly accompanied with a Memorandum of Points and Authorities, Separate Statement, and Declaration. Plaintiff filed this Second Motion as a precaution for the purposes of ensuring the outstanding discovery dispute would be heard by the Court, in the event the Court denied Plaintiff’s Motion to Set Aside. Plaintiff’s Second Motion narrows the discovery dispute concerning Defendant’s response to Plaintiff’s Requests for Production of Documents, Set No. Three, and only requests Court intervention with respect to Request Nos. 53, 54, 55, 57, 68, and 69.

On July 8, 2022, Plaintiff’s Motion to Set Aside came before the Court for hearing. The Court noted, while Plaintiff’s Motion to Set Aside requests that this Court place Plaintiff’s First Motion back on the Court’s calendar for the purposes of considering the outstanding discovery dispute, the Court found this would be an ineffective and moot exercise as Plaintiff has effectively re-filed Plaintiff’s First Motion (i.e., Plaintiff’s Second Motion), which has been assigned a hearing date of July 29, 2022. (Minute Order Re: Hearing on Motion to Vacate the Denial of Plaintiff’s Motion to Compel Further Responses to Request for Production Set No. Three, filed July 8, 2022.) Concluding that the outstanding discovery dispute would be deliberated before this Court on July 29, 2022, upon consideration of Plaintiff’s Second Motion, this Court denied Plaintiff’s Motion to Set Aside as moot.

Subsequently, on July 17, 2022, pursuant to the request of Plaintiff, the hearing upon Plaintiff’s Second Motion was continued from July 29, 2022 to December 16, 2022. Plaintiff’s Second Motion remains on calendar and hearing is scheduled to commence on December 16, 2022.

Additionally, likely in an effort to resolve the outstanding discovery dispute in a more rapid manner, on August 4, 2022, Plaintiff filed a third Motion to Compel Further Responses to Plaintiff’s Requests for Production of Documents, Set No. Three and Request for Sanctions against Defendant (hereinafter, “Third Motion”). Plaintiff’s Third Motion is the Motion which the Court presently considers today. Further, the Court recognizes Plaintiff’s Third Motion is identical to Plaintiff’s Second Motion, which requests Court intervention with respect to Requests for Production of Documents, Set No. Three, Request Nos. 53, 54, 55, 57, 68, and 69.

Considering the procedural history above, the Court concludes that Plaintiff’s Second and Third Motions are unquestionably untimely, and the Court lacks jurisdiction to consider Plaintiff’s Second and Third Motions on the merits—a fact the Court failed to consider in ruling upon Plaintiff’s Motion to Set Aside on July 8, 2022. Because of the untimeliness of the Second and Third Motions, the Motion to Set Aside the Court’s Order taking Plaintiff’s First Motion off of calendar was not moot.

As noted previously, Defendant served a response to Plaintiff’s Requests for Production of Documents, Set No. Three on March 30, 2021. (Gill Decl., ¶ 4, Ex. 2.) Accordingly, pursuant to Code of Civil Procedure section 2031.310, subdivision (c), Plaintiff was required to file a motion to compel Defendant’s further response to Plaintiff’s Requests for Production of Documents, Set No. Three no later than May 18, 2021. (Code Civ. Proc., §§ 2031.310, subd. (c), 1010.6, subd. (a)(4)(B).) Plaintiff’s Second and Third Motions were filed on April 29, 2022 and August 4, 2022, respectively, exceedingly beyond the forty-five (45) day deadline. Therefore, as the forty-five (45) day deadline articulated within Code of Civil Procedure section 2031.310, subdivision (c) is “mandatory and jurisdictional”, the Court is “without authority to rule on” Plaintiff’s Second and Third Motion as they were filed beyond the time prescribed. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1409-1410 [“[W]e conclude that the time within which to make a motion to compel production of documents is mandatory and jurisdictional[,]” “in the sense that it renders the court without authority to rule on motion to compel other than to deny them.”].)

The Court failed to recognize such a jurisdictional and mandatory limitation upon consideration of Plaintiff’s Motion to Set Aside on July 8, 2022. Specifically, the Court opted to deny Plaintiff’s Motion to Set Aside as moot, noting that re-calendaring Plaintiff’s First Motion would constitute a fruitless and meaningless act as Plaintiff had filed a Second Motion, which would be before this Court for consideration a few weeks later. (Minute Order Re: Hearing on Motion to Vacate the Denial of Plaintiff’s Motion to Compel Further Responses to Request for Production Set No. Three, filed July 8, 2022.) However, this finding was incorrect. The Court did not recognize that Plaintiff’s Second Motion was untimely under Code of Civil Procedure section 2031.310, subdivision (c), and the Court would be without jurisdiction to consider the merits of Plaintiff’s Second Motion when the Motion came before the Court for consideration. It follows, Plaintiff’s requested relief (i.e., the re-calendaring Plaintiff’s First Motion) would not have been a fruitless and meaningless, as Plaintiff’s First Motion was timely under Code of Civil Procedure section 2031.310, subdivision (c), and, indeed, was the only Motion of which the Court had jurisdiction to consider the merits—in stark contrast to the Court’s authority with respect to Plaintiff’s Second and Third Motions. Moreover, the Court did not address the question as to whether the filing of a notice of motion as to the First Motion was sufficient to render it timely absent a separate statement and points and authorities that had not yet been filed.

In the event the Court considered such jurisdictional limitations with respect to Plaintiff’s Second Motion, the Court likely would have granted Plaintiff’s Motion to Set Aside. Plaintiff’s counsel submitted an evidentiary declaration demonstrating that Plaintiff’s counsel’s failure to appear during the hearing upon Plaintiff’s First Motion was due to excusable neglect, inadvertence, and mistake. (Code Civ. Proc., § 473, subd. (b).) Specifically, Plaintiff’s counsel declared his failure to appear was attributable to the failure to properly calendar the hearing date upon Plaintiff’s First Motion. (Gill Decl., ¶ 18 [Declaration of Jasminder Gill, filed in support of Plaintiff’s Motion to Set Aside on April 29, 2022].)

Considering the foregoing, the technically correct outcome would be for the Court to reinstate the First Motion and disregard the Second and Third Motions. As a practical matter, however, the Third Motion is a reduced version of what would have been the First, reflecting further work by the parties. The Court finds neglecting consideration of Plaintiff’s Third Motion, on the ground of untimeliness, would produce an anomalous and inefficient result; better to deem it, essentially, an amended version of the First Motion. To not consider any of the First, Second, or Third Motions would penalize Plaintiff for the Court’s mistake.

Thus, the Court opts to consider the merits of Plaintiff’s Third Motion; it relates-back to Plaintiff’s timely-filed First Motion, and helpfully narrows the issues for the Court’s consideration.

B. Requests for Production of Documents, Set No. Three, Request Nos. 53, 54, 55, 57, 68, and 69

Request for Production

Response

Grant/Deny

53. All inspection reports or other documents relating to observation of cleanliness by any person or entity, including defendant, for the premises in question, for a period of three (3) months prior to the date of the occurrence in question.

documents”, “observation”, “cleanliness”, “the premises in question” and “date of the

occurrence”.

This request seeks information protected by the attorney client and attorney work product privileges. The request is overbroad in time and scope, and unduly burdensome. This request seeks information that violates the privacy rights of Defendant and/or third parties. Plaintiff has also failed to demonstrate that other incidents, if any, is in any way “substantially similar” to the subject slip and fall incident.

Further, this request is duplicative of Request No. 12, which seeks “All inspection reports

or other documents relating to observation of cleanliness by any person or entity, including defendant, for the premises in question, for a period of one (1) year prior to, and all dates subsequent, the date of the occurrence in question”.

Subject to and without waiving those objections, see Ex. A - Sweep sheet, previously produced on October 22, 2020.

Deny.

(1) This Request is duplicative of prior discovery with respect to which Plaintiff failed to timely move to compel a further response, in violation of Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d, 490, 494 (Professional Career Colleges). (Professional Career Colleges, supra, at p. 494 [“[I]t would be an absurdity to say that a party who fails to meet the time limits of section 2030 may avoid the consequences of his delay and lack of diligence by propounding the same questions again. Such a construction of the statute would obviously encourage delay and provide no incentive to attempt to resolve any dispute with the opposing party. The Legislature has explicitly stated that unless a party moves to compel a further response within forty-five days of the unsatisfactory response, he waives any right to compel a further response. We hold that this means what is says[.]”].)

Presently, Plaintiff’s Request No. 53 is identical to Plaintiff’s Request No. 2, which was previously served upon Defendant as part of Plaintiff’s Requests for Production of Documents, Set No. One. Request No. 2 requested the following from Defendant: “All inspection reports or other documents relating to observation of cleanliness by any person or entity, including defendant, for the premises in question, for a period of one (1) year prior to, and all dates subsequent, the date of the occurrence in question.” (Do Decl., ¶ 4.)

On October 22, 2020, Defendant served an objection in response to Plaintiff’s Request No. 2. (Do Decl., ¶ 5.)

Plaintiff failed to file a motion to compel Defendant’s further response to Request No. 2, and now has improperly “propound[ed] the same question again.”

Such is improper, duplicative, and in violation of the principles articulated within Professional Career Colleges.

(2) Plaintiff has failed to articulate “specific facts showing good cause justifying the discovery sought” within an evidentiary declaration, as required by Code of Civil Procedure section 2031.310, subd. (b)(1). (Code Civ. Proc., § 2031.310, subd. (b)(1) [“A motion under subdivision (a) shall comply with each of the following: ¶(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”].)

The Court of Appeal in Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216 (Calcor) provides, the “specific facts” contemplated by Code of Civil Procedure section 2031.310, subdivision (b)(1) must be set forth within an evidentiary declaration, and the inclusion of such “specific facts” within a party’s Separate Statement or moving or reply papers is insufficient. (Calcor, supra, 53 Cal.App.4th at p. 224 [“In law and motion practice, factual evidence is supplied to the court by way of declarations. Thiem, [the moving party, here,] provided argument but no evidence at all to permit the court to conclude the material sought was ‘admissible in evidence or appeared[ed] reasonably calculated to lead to the discovery of admissible evidence.’ The only justification for the request is contained in Thiem’s ‘Statement Pursuant to Rule 335(a)’ and in a document entitled ‘Combined Opposition to Calcor Space Facility, Inc.'s Motion for Protective Order and Reply Brief in Support of Motion to Compel Calcor Space Facility, Inc. to Comply with Deposition Subpoena for Production of Business Documents.’ Neither document is verified, and thus they do not constitute evidence.”].)

A moving party’s failure to comply with Code of Civil Procedure section 2031.310, subdivision (b)(1) is sufficient to deny the moving party’s motion. (Calcor, supra, 53 Cal.App.4th at p. 226 [issuing a writ of mandate directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff failed to provide specific facts showing good cause for their production, in compliance with Code of Civil Procedure section 2031.310, subdivision (b)(1)].)

Here, Plaintiff has failed to state “specific facts” justifying good cause for the production of the documents requested within the accompanying evidentiary declaration. While Plaintiff’s Separate Statement includes such facts, this is insufficient under Calcor.

54. All inspection reports or other documents relating to observation of cleanliness by any person or entity, including defendant, for the premises in question, for a period of three (3) months after to the date of the occurrence in question.

Defendant responds by asserting objections identical to those advanced with respect to Request No. 53. (See Separate Statement, at pp. 3-4.)

Deny.

(1) This Request is duplicative of prior discovery which Plaintiff failed to timely move to compel a further response, in violation of Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d, 490, 494 (Professional Career Colleges). (Professional Career Colleges, supra, at p. 494.) Specifically, Plaintiff’s Request No. 54 is identical to Plaintiff’s Request No. 2, which has been stated verbatim above.

On October 22, 2020, Defendant served an objection in response to Plaintiff’s Request No. 2. (Do Decl., ¶ 5.)

Plaintiff failed to file a motion to compel Defendant’s further response to Request No. 2, and now has improperly “propound[ed] the same question again.”

Such is improper, duplicative, and in violation of the principles articulated within Professional Career Colleges.

(2) Plaintiff has failed to articulate “specific facts showing good cause justifying the discovery sought”, as required by Code of Civil Procedure section 2031.310, subd. (b)(1). (See Calcor, supra, 53 Cal.App.4th at p. 224.)

55. Any and all written complaints and records of oral complaints regarding slipperiness of the type of surface on which Plaintiff fell, for a period of five (5) years prior to the date of the occurrence in question.

Objection. This request fails to specifically describe each individual item or reasonably particularize each category of item as it vaguely requests “or other documents”. See CCP § 2031.030(c)(1). This request is vague and ambiguous with regard to “written complaints”, “records of oral complaints”, “slipperiness”, “ type of surface on which Plaintiff fell” and “date of the occurrence in question.” The subject is overbroad in time and scope, and unduly burdensome.

This request seeks information that is not relevant nor reasonably calculated to lead to the discovery of admissible evidence. Further, this request is duplicative of Request No. 13, which seeks “Any and all written complaints and records of oral complaints regarding slipperiness of the type of surface on which Plaintiff fell”. It is improper, burdensome, and harassing.

Subject to and without waiving those objections, Defendant has conducted a diligent search and reasonable inquiry in an effort to comply with the demand. Defendant is unable to comply with this demand as no responsive non-privileged documents exist.

Deny.

On October 22, 2020, Defendant served an objection in response to Plaintiff’s Request No. 13. (Do Decl., ¶ 5.)

Plaintiff failed to file a motion to compel Defendant’s further response to Request No. 13, and now has improperly “propound[ed] the same question again.”

Such is improper, duplicative, and in violation of the principles articulated within Professional Career Colleges.

57. Copies of reports of all similar accidents prepared by any and all employees of the premises in question from a period of three (3) years before the accident up to and through the present.

Objection. This request fails to specifically describe each individual item or reasonably particularize each category of item. See CCP § 2031.030(c)(1). This request is vague and ambiguous with regard to “reports”, “similar accidents”, “prepared by”, “the premises in question” and ”five years before the accident”. The subject is overbroad in time and scope, and unduly burdensome. This request seeks information protected by the attorney client and attorney work product privileges. This request seeks information that violates the privacy rights of Defendant and/or third parties. Plaintiff has failed to demonstrate that other incidents, if any, is in any way “substantially similar” to the subject slip and fall incident.

This request seeks information that is not relevant nor reasonably calculated to lead to the discovery of admissible evidence. Further, this request is duplicative of Request No. 30, which seeks “Copies of reports of all similar accidents prepared by any and all employees of the premises in question from a period of five years before the accident up to and through the present”.

Deny.

On October 22, 2020, Defendant served an objection in response to Plaintiff’s Request No. 30. (Do Decl., ¶ 5.)

Plaintiff failed to file a motion to compel Defendant’s further response to Request No. 30, and now has improperly “propound[ed] the same question again.”

Such is improper, duplicative, and in violation of the principles articulated within Professional Career Colleges.

59. Copies of any lawsuits filed against Defendant (for this store location) for personal injury in the past ten (10) years.

Objection. This request is vague and ambiguous with regard to “lawsuits”, “this store location” and “personal injury”. This request seeks information that is not relevant nor reasonably calculated to lead to the discovery of admissible evidence. The subject is overbroad in time and scope, and unduly burdensome. This request seeks information that violates the privacy rights of Defendant and/or third parties. Plaintiff has failed to demonstrate that other incidents, if any, is in any way “substantially similar” to the subject slip and fall incident.

Lastly, this request seeks information equally available to the requesting party. “[W]hen the material to be ‘discovered’ consists, as here, solely of information available to both parties, it defeats the purpose of the Discovery Act to compel one party to perform another party’s research, whether such be laborious or not.”

Further, this request is duplicative of Request No. 37, which seeks “Copies of any lawsuits filed against Defendant (for this store location) for personal injury”.

Deny.

Plaintiff has failed to articulate “specific facts showing good cause justifying the discovery sought”, as required by Code of Civil Procedure section 2031.310, subd. (b)(1). (See Calcor, supra, 53 Cal.App.4th at p. 224.)

68. Time card for August 20, 2018 for employee “Gabriela.”

Objection. This request fails to specifically describe each individual item or reasonably particularize each category of item as it vaguely requests “or other documents”. See CCP § 2031.030(c)(1). This request is vague and ambiguous with regard to “Time card”, “the date of loss”, and “Gabriela”. This request is overbroad, unduly burdensome and harassing. This request seeks information that is not relevant nor reasonably calculated to lead to the discovery of admissible evidence. This request seeks information that violates the privacy rights of Defendant and/or its employees.

Deny.

Defendant declares under penalty of perjury that the “[t]ime card for August 20, 2018 for employee ‘Gabriela’” has been produced to Plaintiff. (Do Decl., ¶8.) Plaintiff has not filed a Reply indicating this representation is false.

69. Time card for August 20, 2018 for employee “Denny.”

Defendant responds by asserting objections identical to those advanced with respect to Request No. 53. (See Separate Statement, at p. 21.)

Deny.

The Court declines to issue monetary sanctions against Defendant, pursuant to Code of Civil Procedure section 2031.310, subdivision (h), as Defendant did not “unsuccessfully oppose” Plaintiff’s present Motion. (Code Civ. Proc., § 2031.310, subd. (h) [“Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”].) Conversely, the Court finds that Plaintiff’s was substantially justified in believing that the discovery issues subject of this motion were resolved following the 2021 IDC.

Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Requests For Production of Documents, Set No. Three and Request for Sanctions against Defendant Bodega Latina Corp., Inc. and Its Counsel is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.