2014-00167677-CU-BC

Maleehai Rodriguez vs. Confie Seguros Insurance Services

Nature of Proceeding: Motion to Compel 1) Production of Documents, Set 4, 5 & 6 2) Special

Filed By: Parker, Jr., John R.

Plaintiff Maleehai Rodriguez’s (“Plaintiff”) motion to compel further responses to discovery is ruled upon as follows.

This is a putative class action in which Plaintiff alleges Defendants, insurance brokers, have a company-wide business practice of making invalid rewrites on insurance policies in order to charge unnecessary and inflated broker fees.

Plaintiff moves for further responses from Defendant Sacramento Insurance Center, Inc. d/b/a/ Cost-U-Less Insurance Center (“Defendant”) to its Request for Production of Documents (“RFP”), Set Four; RFP, Set Five; RFP, Set Six; and Special Interrogatories (“SI”), Set Two. Plaintiff also requests monetary and other sanctions.

The Court notes to the extent Plaintiff also seeks via this motion to compel further deposition testimony from Defendant’s PMQ, such relief was not identified in the notice of motion as required. (See Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110

(a) [“A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.”].) Therefore, the Court declines to consider Plaintiff’s entitlement to such relief as part of the instant motion. (See Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group 2018) ¶ 9:38 [“The court generally cannot grant different relief . . . than stated in the notice of motion.”].)

Plaintiff argues Defendant’s “current responses [to the referenced discovery] are evasive and incomplete[,] and the objections to the requests are without merit and too general.” (Pl.’s Not. of Mot. 2:16-17.) Plaintiff further argues “the responses are based on misrepresentations and unwarranted revisions.” (Id. at 2:18.) Concerning the misrepresentation argument, Plaintiff states:

“Plaintiff . . . brought a . . . motion to compel on November 9, 2016[,] . . . s[eeking] an order compelling Defendants to respond to then-outstanding requests in Plaintiff’s [RFP], Set Two, and [SI], Set One. This Court granted in part and denied in part [the motion], ordering, inter alia, that Defendants produce all disciplinary actions with the term ‘justified complaints.’ [Citation.] This Court denied Plaintiff’s request for documents concerning non-Department of Insurance complaints from customers, relying on the declarations of Cheryl Fleming [Citation], and Jeff Farrow [Citation].”

(Mem. P.&A. ISO Pl.’s Mot. to Compel (“Mot.”) 3:1-9.)

Ms. Fleming and Mr. Farrow essentially declared that Defendant does not maintain a central repository to track non-Department of Insurance (“DOI”) complaints, and that Defendant would have to review each physical customer file to determine if a customer made a non-DOI complaint.

Plaintiff contends Ms. Fleming’s subsequent deposition testimony establishes Defendant actually does track some non-DOI customer complaints in their Case Management System (“CMS”) and can use CMS to view such complaints within a given date range. (Mot. 3:26-4:2.) Plaintiff further argues the deposition of Defendant’s Person Most Qualified (“PMQ”), Carl Salazar, evinces another software program used by Defendant, “AppOne,” can be used to electronically search for brokerage fee information without having to review each customer file individually. (Id. at 5:9-11, 10:10-12.)

Defendant opposes the motion, rejoining it is both procedurally defective and substantively without merit. With the exception of the procedural deficiencies discussed herein, i.e., that compelling further PMQ testimony was not identified as relief sought in the Notice of Motion and Plaintiff’s request for sanctions, see infra, the Court declines to deny the motion on the purported procedural deficiencies.

Substantively, Defendant argues that Plaintiff misconstrues the testimony of its PMQ and Ms. Fleming to claim Defendant can easily locate the requested information without reviewing each customer’s file individually. Defendant maintains:

“Salazar, Fleming, and [Christopher] Ewing all testify/declare that Defendant is not able to conduct a ‘simple’ search in order to produce the documents/ information requested by Plaintiff.

Instead, Defendant would be required to conduct a customer by customer analysis-wherein such analysis would require the manual review of approximately 1,000,000 files. The time and expense to complete that manual review and analysis would require an extraordinary undertaking of personnel, would cost hundreds of thousands of dollars, and would be extremely disruptive to Defendant’s operations. Notably, when faced with this issue previously, this Court recognized such efforts would be unduly burdensome.”

(Def.’s Opp’n 7:10-17.)

RFP, Set Four

GRANTED.

No later than March 4, 2019, Defendant shall serve further verified responses to RFP Nos. 39, 40, 41, 42, 43, 45, 46, and 47 in compliance with Code of Civil Procedure sections 2031.210, et seq.

Defendant’s overly broad/unduly burdensome, vague/ambiguous, duplicative, assumes facts, and not reasonably likely to lead to the discovery of admissible evidence objections are overruled. Generally, the objecting party has the burden to establish the bases for objection. (Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255 [citing Coy v. Super. Ct. (1962) 58 Cal.2d 220-221].) For example, the objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought. (West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 417; see also Code Civ. Proc. § 2025.480(d).) Defendant’s objections are not adequately supported.

Defendant’s further responses to these RPFs, however, may retain objections based on the attorney-client privilege, the work product doctrine, and/or proprietary/confidential grounds. To the extent it elects to do this, Defendant must serve a privilege log at the time it serves its further responses. Responsive documents may also be redacted, as needed, to protect third person privacy.

The Court makes the same ruling as to RFP Nos. 44 and 48, with the following difference. Defendant’s further responses may retain an overly broad/unduly burdensome objection to the extent the requests require Defendant to manually review every customer file to locate responsive documents. However, Ms. Fleming’s deposition testimony indicates some responsive documents can be located electronically using CMS. Ms. Fleming testified in relevant part:

“Q. Okay. So [CMS] did not affect your ability to view complaints made outside of the Department of Insurance?

. . . .

[A.] Some.

. . . .

[Q.] Some what?

A. Some complaints can be viewed in [CMS].

Q. Which ones are those?

. . . .

[A.]

The ones that are logged.

. . . .

[A.]

That are logged in by a human.

. . . .

Q. So can you search for complaints regarding a certain

topic?

A. No.

Q. What is that [testimony] based on?

. . . .

[A.] The options in CMS to choose from.

Q. Is there a drop down menu?

A. No.

Q. Just three different fields that you can enter information

in?

. . . .

[A.] Yeah, you can enter a date range, the customer’s name, or the complaint number.

Q. Okay. So if you enter in a date range, that will come up with every complaint that was entered in CMS during that time?

A. Yes.

Q. Okay. And what information will be displayed on that

screen?

. . . .

[A.] The information that I talked about earlier, as far as the customer’s name, the office, the writing producer, the reason, the broker fee amount, who the complaint is assigned to, when it’s closed or not closed, and resolved and not resolved. That’s all I can think of.

Q. Okay. And those will all come up on that first screen when you type in the date range?

. . . .

[A.] Yeah, it brings up the customer’s – – yes.

Q. Does it look like a spreadsheet?

A. No.

. . . .

Q. How does it look?

. . . .

[A.] Just has all the information. And you may have to scroll back and forth. And there [are] different pages that you can go to

… the next screen, next screen, to see all the complaints, depending on how many there are. I think it displays ten or something on the screen at one time.

Q. But on that first screen, you will be able to see ten entries, each of which will list the name, the office, the producer, the reasons, the broker fee, who the complaint was about, and whether or not it’s been closed or resolved?

. . . .

[A.] Those are some of the categories that are in there. That’s not everything in – – it’s not, yeah, that’s not everything. But it shows a lot of that information, yes.

[Q.] Okay. So there may be more information than that that’s on the screen that you haven’t discussed?

[A.] Yes.

(Fleming Depo. 56:2-21, 162:2-164:24.)

Accordingly, in providing further verified responses to Nos. 44 and 48, Defendant must undertake the CMS search described by Ms. Fleming. (See Code of Civ. Proc., §

2031.230 [discussing the requirement that a responding party affirm it has made “a diligent search and reasonable inquiry” before representing an inability to comply with a particular demand].)

RFP, Set Five

Plaintiff’s RFP, Set Five, comprises a single request – No. 49: “Please produce all DOCUMENTS RELATING TO YOUR providing insurance services to Bertha Rodriguez.”

Bertha Rodriguez was a named Plaintiff in the Second Amended Complaint. However, on January 16, 2019, she signed a declaration stating she no longer wishes to be a representative plaintiff in this action, and Plaintiff has filed a motion seeking to file a Third Amended Complaint that, inter alia, removes Bertha Rodriguez as a named plaintiff. (See Decl. of Matthew Breining ISO Pl.’s Mot. for Leave to File Third Am. Compl. ¶ 4, Ex. A, ROA # 331.)

In light of Bertha Rodriguez’s recent change in status, the Court, on its own motion, continues the hearing on this motion only as to RFP, Set Five (RFP No. 49) to February 27, 2019 at 2:00 p.m. in this Department.

The parties are directed to meet and confer to determine whether and/or to what extent a dispute remains concerning RFP No. 49. After sufficiently meeting and conferring, and no later than February 19, 2019, counsel shall file a joint statement indicating their respective positions. Plaintiff’s counsel shall complete the actual filing of the joint statement, but both counsel shall prepare and sign it. Should there no longer be a dispute, the hearing will be dropped.

RFP, Set Six

GRANTED.

No later than March 4, 2019, Defendant shall serve further verified responses to RFP Nos. 50 and 51 in compliance with Code of Civil Procedure sections 2031.210, et seq.

Defendant’s burden and oppression objections are overruled. Defendant has made no showing as to how complying with these RFPs would be unduly burdensome. Indeed, burdensome objections must be supported by a factual showing setting forth the amount of work necessary to respond to the subject discovery. (West Pico Furniture Co., supra, 56 Cal.2d at 417-418.) Defendant’s opposition is devoid of any factual showing whatsoever concerning these RFPs.

Defendant’s vague/ambiguous, and not reasonably likely to lead to the discovery of admissible evidence/not proportional to the needs of this case objections are also overruled.

Defendant’s further responses may retain objections based on the attorney-client privilege and the work product doctrine. However, Defendant must serve a privilege log at the time it serves its further responses. Responsive documents may also be redacted, as needed, to protect third person privacy.

SI, Set Two

DENIED.

Plaintiff’s SIs Nos. 28-43 ask Defendant to identify the (1) dollar amount, (2) number of times, and (3) number of persons Defendant charged brokerage fees between August 14, 2010 to the present, generally, and specifically in connection with:

· removing a driver from an insurance policy,

· adding a driver to an insurance policy,
· adding a vehicle to an insurance policy,
· removing a vehicle from an insurance policy, and
· issuing a new policy to an existing customer.

The Court notes that Plaintiff’s Special Interrogatories, Set Two, also includes No. 27. However, Defendant’s response to this interrogatory was not discussed in Plaintiff’s Separate Statement. Therefore, the Court finds SI No. 27 is not a subject of this motion.

Defendant responded substantially similarly to each of the referenced SIs. Defendant objected to the SIs as follows: “This interrogatory is unduly burdensome, oppressive and harassing, seeks information that is not relevant and/or is not reasonably calculated to lead to the discovery of admissible evidence, and is not proportional to the needs of this case.”

Without waiving said objections, Defendant responded as follows concerning several of the SIs which asked for the dollar amount of brokerage fees it charged:

“[Defendant] has a brokerage fee agreement with each of its customers, and the dollar amount of such fees varies from customer to customer, from transaction to transaction, and there is no minimum amount charged. In addition[], in some situations, a customer is not charged a brokerage fee. The amount of brokerage fee charged is based on a specific discussion between the broker and customer and is based on a variety of factors relating to that transaction. The dollar aamount of the brokerage fees charged has varied from $0.00 to $395.00. Discovery is continuing.”

(See Def.’s Response to SI Nos. 28-30.)

In response to the SIs which asked for the number of times or people Defendant charged a brokerage fee, Defendant responded as follows after objecting:

“[Defendant] has a brokerage fee agreement with each of its customers for services provided to its customers. Depending upon a variety of factors and circumstances, and given the particular needs of the customer and the transaction at issue, the customer

may or may not be charged a brokerage fee for [adding a driver / removing a driver / adding a vehicle / removing a vehicle / issuing a new insurance policy]. In order to determine the number of times that [Defendant] charged a customer a brokerage fee for [adding a driver / removing a driver / adding a vehicle / removing a vehicle / issuing a new insurance policy], [Defendant] would have to manually review each and every customer file since August 14, 2010 to determine if a particular customer transaction involved [adding a driver / removing a driver / adding a vehicle / removing a vehicle / issuing a new insurance policy] , and if so, also review the brokerage fee agreement in said file to determine if a brokerage fee was charged. There are approximately 1,000,000 insurance transactions that have occurred since August 14, 2014. The time and expense to complete that manual review and analysis would require an extraordinary undertaking of personnel, would cost hundreds of thousands of dollars, and would be extremely disruptive to the operations of [Defendant]. Further, the information asked for in this interrogatory cannot be gathered from a computerized search or automated process.”

(See Def.’s Resp. to SI Nos. 31 – 44.)

Plaintiff argues that PMQ Carl Salazar’s deposition testimony establishes brokerage fee information is electronically stored and searchable in Defendant’s AppOne system. Mr. Salazar did testify that brokerage fees are recorded electronically in AppOne. (Salazar Depo, Vol. I, p. 50.) However, his testimony does not support that Defendant can use AppOne to search for such information other than by searching specific customer files.

For example, Mr. Salazar testified that AppOne records are organized by customer and are searchable by the customer’s name or personal information (such as address or driver’s license number). (Salazar Depo, Vol. I, p. 55.) Mr. Salazar further testified that AppOne could be used to obtain the total number of times customers made changes to their policies, but not to determine the number of times any particular change (like removal of a vehicle) occurred. (Id. at pp. 58-59.) Mr. Salazar further testified that AppOne could not be used to obtain a list of names for those customers who made changes. (Id. at pp. 58-60 [“It is not set up that way. It is going to show me total — total number. And so if I’m looking for a number, it will give me that number. It doesn’t give me a spreadsheet of names. It is not set up that way.”].) Mr. Salazar testified that AppOne has similar search capabilities regarding brokerage fees. AppOne can be used to obtain the total number of times a brokerage fee over a certain dollar amount was charged, but it will not generate a list customer names associate with the charges. (Id. at pp. 56-60.)

Under the circumstances, and on the record before the Court, the Court sustains Defendant’s undue burden objection and finds Defendant has sufficiently answered SI

Nos. 28-43. The Court notes it has considered the Declarations of Colin Loveness and Christopher Ewing (which were originally submitted in connection with Plaintiff’s Motion for Class Certification) in making these determinations.

Request for Sanctions

Plaintiff’s request for monetary and other sanctions is denied given Plaintiff’s mixed success on the motion and since Plaintiff’s Notice of Motion fails to comply with Code of Civil Procedure section 2023.040. The notice neither specifies the type of sanction sought nor identifies every party and/or attorney against whom the sanction is sought.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)