2016-00205274-CU-MM

Walter Tyz vs. University of California

Nature of Proceeding: Motion to Compel 1. Special Interrogatories 2. Production

Filed By: Myers, Aaron

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the specific discovery requests that will be addressed at the hearing. Counsel are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

Plaintiff’s motion to compel defendants’ further responses to the first set of Special Interrogatories and Requests for Production is effectively UNOPPOSED and is GRANTED IN PART, as follows.

Moving counsel failed to comply with CRC Rule 3.1110(b)(3)-(4).

At the outset, the court must remind all counsel but especially plaintiff’s that given the number of motions such as this which must be addressed on a daily basis, there are simply not judicial resources available to resolve each and every discovery dispute that could have and should have been resolved informally. This serves to highlight the critical need for counsel’s legitimate, reasonable and good faith meet-and-confer efforts before filing any discovery motion. Although it dealt with a motion to compel answers to deposition questions, the decision of Townsend v. Superior Court (1998)

61 Cal.App.4th 1431 is instructive in that it clarifies that the meet-and-confer process is not intended to be some perfunctory formality but rather it “requires…a serious effort at negotiation and informal resolution.” (Id., at 1438.) Nevertheless, the court will here address a discovery dispute that should have been resolved without the need to use finite judicial resources.

Additionally, in light of the number of discovery motions which the court anticipates being filed in this case, the parties are strongly encouraged to stipulate to the appointment of a discovery referee who can more quickly and efficiently address the parties’ needs. If they agree to having someone act as discovery referee, the parties may prepare and submit a stipulation and proposed order pursuant to Code of Civil Procedure §638. The parties are advised that if they are unable to agree on a referee, the court may in the future appoint one on its own motion pursuant to Code of Civil Procedure §639.

Factual Background. This action alleges that defendants engaged in a variety of fraudulent and negligent conduct in connection with their care and treatment of plaintiff, including making false statements in the latter’s medical records and failing to provide promised treatment.

Plaintiff filed the present motion on 1/25/2018 seeking to compel defendants’ further responses to special interrogatories and requests for production on the grounds defendants improperly asserted objections, provided incomplete and/or inadequate responses and failed to produce documents which they agreed to produce. Plaintiff also requests monetary sanctions in excess of $25,000 (twenty-five thousand dollars).

According to the opposition, this motion is now “moot” as defendants have already served “amended” responses to all interrogatories and requests for production. Although defendants are “not opposing the merits of [this] motion,” they request that no sanctions be imposed for several reasons including that the amount sought by plaintiff is patently unreasonable under the circumstances.

The reply asserts that defendants’ “amended” responses remain deficient since they are not verified, still contain improper objections, are incomplete and not all responsive documents have been produced. Plaintiff maintains that sanctions of $25,000 would be reasonable here because defendants refused to provide proper discovery responses.

Analysis. The court must reject the opposition’s suggestion that this motion is rendered “moot” by the service of the “amended” responses to interrogatories and requests for production following the filing of this motion on 1/25/2018. Code of Civil Procedure §1005.5 specifically provides that a motion is deemed made at the time it is filed and served and in this case, the “amended” responses to discovery were not served until after this motion was filed on 1/25/2018. Thus, this motion cannot be considered “moot” within the meaning of §1005.5.

Coupled with the lack of substantive opposition, the motion to compel further responses to special interrogatories and requests for production is granted and defendants shall no later than 3/9/2018 provide verified further responses to the interrogatories and requests for production (without additional objections) along with a privilege log identifying each responsive document withheld on account of privilege. (To the extent defendants may have already served further responses or a privilege

log in conformity with this ruling, they need not re-serve them in order to comply with this ruling.)

To the extent plaintiff may contend that defendants’ “amended” responses to the interrogatories and requests for production are in any way deficient, he may file a (second) motion to compel further responses after completing the requisite meet-and-confer process in conformity with the standards cited above relative to the aforementioned “amended” responses to the interrogatories and requests for production.

To the extent plaintiff also seeks to compel the actual production of all documents in response to the requests for production, the court declines to grant such relief since plaintiff’s notice of motion neither specifies that such relief is sought nor cites Code of Civil Procedure §2031.320(a) [governing motions to compel compliance with written response to request for production].

Plaintiff’s request for monetary sanctions of over $25,000 is denied since this motion is effectively unopposed and since the imposition of such sanctions would be unjust under the circumstances.