Judge: Yolanda Orozco, Case: 19STCV33158, Date: 2023-04-18 Tentative Ruling

Case Number: 19STCV33158    Hearing Date: April 18, 2023    Dept: 31

PROCEEDINGS:¿ MOTION TO COMPEL FURTHER RESPONSE TO SPECIAL INTERROGATORIES, SET THREE 

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MOVING PARTY:    Defendant County of Los Angeles

RESP.¿ PARTY:¿      Plaintiff Art Hernandez

MOTION TO COMPEL FURTHER RESPONSE  

TO SPECIAL INTERROGATORIES, SET THREE

TENTATIVE RULING

Defendant’s Motion to Compel Further Responses to Special Interrogatories Nos. 45 to 60 is DENIED.

Plaintiff’s request for sanctions is also DENIED.

Legal Standard

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under Code of Civil Procedure section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. (Code Civ. Proc. § 2030.300(a).) The responding party has the burden of justifying the objections thereto. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21.)¿ 

Moreover, notice of a motion to compel further must be given 45 days of service of the response or any supplemental response, or on or before any specific later day to which the propounding party and responding party may have agreed in writing. (Code of Civ. Proc., § 2030.300(c).)¿Finally, Cal. Rules of Court, rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3)).¿¿ 

Discussion

Defendant County of Los Angeles seeks an Order compelling Plaintiff Art Hernandez to Provide Further Responses to Special Interrogatories (SROGS) Nos.  45 to 50. Defendant does not seek sanctions.

On December 05, 2022, the Court granted Defendant’s motion to compel Plaintiff Hernandez to answer deposition questions regarding criminal activity that he allegedly witnessed. (See Tokoro Decl. ¶ 2, Ex. A.) During the December 05, 2022 hearing, Plaintiff’s counsel, Mr. Vincent Miller alleged he had received a phone call a few days prior where an alleged Bandito gang member stated they were concerned about Plaintiff’s testimony. (Id. ¶ 3.) A transcript by a Court Reporter of the December 05, 2023 hearing reflects that Plaintiff’s counsel made the following representation to the Court:

 “I GOT CALLED BY ONE OF THE LEADERS OF THE BANDIDOS GANG ON THURSDAY ABOUT ART. CONCERNED ABOUT HIS TESTIMONY.”

(Id. Ex. A.)

Defense counsel has sought information regarding the phone call and name of the alleged caller, which Plaintiff’s counsel failed to provide. (Tokoro Decl. Ex. B.) The County asserts that it is obligated to investigate the incident and any allegations of witness intimidation.  For this reason, on December 09, 2022, it served SROGS on Plaintiff Hernandez via Plaintiff’s counsel’s email. (Id. ¶ 4, Ex. C, D.) Defendant asserts that Plaintiff has waived any objections, including those based on privilege because Plaintiff failed to timely respond.

Timeliness of Plaintiff’s Responses

Plaintiff asserts that SROGS Nos. 45 to 50 were not properly served on December 09, 2022, because Plaintiff’s counsel was not carbon copied (CC) to his gmail account. (Miller Decl. ¶ 7.) Plaintiff’s counsel asserts that only his brother was CC’d in the email, who was unable to respond due to suffering a heart attack and undergoing triple bypass surgery and who has not returned to work. (Miller Decl. ¶ 11, Ex. 4.) Accordingly, Plaintiff did not get the SROGS until January 11, 2023. (Miller Decl. ¶ 9.)

Defendant asserts that service of the SROGs was valid because it was served on Plaintiff’s counsel’s email address of record and that the emails are subject to the parties’ electronic service agreement. (Tokoro Decl. ¶ 4.)

Plaintiffs’ counsel provides evidence that as of February of 2021, Plaintiff’s counsel informed Defendant’s former counsel that his Gmail was to be added to the distribution list as Defendant’s correspondence had been going to junk mail and he was not receiving correspondence. (Miller Decl. Ex. 1.)

The Court may properly consider that Mr. Miller informing Defendant to add his gmail to the distribution list as an amendment to the parties’ electronic service agreement such that service is not proper unless notice is also emailed to Mr. Miller’s gmail address. Defendant fails to provide any evidence to the contrary or that Plaintiff consented to accept electronic service served only at his work address rather than also his gmail address.

Accordingly, the Court finds that service of the SROGS was not proper until January 11, 2023, and that Plaintiff timely raised objections, including objections based on attorney and work product privilege.

Plaintiff’s Objections

“On a motion to compel, the responding party has the burden of establishing a valid objection, including any claim of privilege. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220.) Regarding objections based on attorney-client privilege: “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733; see also Evid. Code, § 954.)

Here, Plaintiff’s counsel’s supplemental declaration represents that the identity of the caller is privileged because the call was from an LASD deputy who informed Plaintiff’s counsel that he wanted Plaintiff’s counsel to represent him in a lawsuit against the County. (Miller Supp. Decl. ¶¶ 3, 8.) Plaintiff’s counsel asserts that he confirmed with the State Bar that he was not obligated to provide the name of the caller or any confidential information shared by the caller. (Miller Supp. Decl. ¶ 11.)

The County has failed to show that the information requested is not privileged.

Therefore, the County’s Motion is DENIED.

The Court also DENIES Plaintiff’s motion for sanctions.

Conclusion

Defendant’s Motion to Compel Further Responses to Special Interrogatories Nos. 45 to 60 is DENIED.

Plaintiff’s request for sanctions is DENIED.

Moving party to give notice.