Goulding et al. v. Fedex Freight, Inc. et al.		CASE NO. 1-12-CV-232414
DATE: 25 April 2014	TIME: 9:00	LINE NUMBER: 7

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 24 April 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 April 2014, the motion of Sarra Goulding and Natalie Qayed, as guardians ad litem for Jannah Qayed and Yasmeen Qayed, (“Plaintiffs”) to compel further response to requests for production and monetary sanctions was argued and submitted.  Fedex Freight, Inc. and Mario Pena (“Defendants”) did not file formal opposition to the motion.[1]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]

1. I.                  Factual Background

This wrongful death case arises from an accident in which the decedent, Nashat Qayed, the father of Plaintiffs, was pinned between a FedEx cargo truck and another stationary vehicle, resulting in internal injuries to Mr. Qayed which resulted in his death. Plaintiffs allege that Defendant Mario operated this truck in the course and scope of his employment with FedEx in a negligent manner.

On 4 June 2013, Plaintiffs served FedEx with Set One of Requests for Production of Documents. On 6 August 2013, FedEx served their responses. Plaintiffs found such responses to be inadequate and attempted to meet and confer on the matter. The parties could not reach an agreement through meet and confer and Plaintiffs filed the instant motion to compel. Defendants have not filed any opposition to the motion to date.

Trial on this matter is set for 12 May 2014.

1. II.                Requests for Production

Upon receipt of responses, the party that propounded the request may move for an order compelling further response to the request if the demanding party deems that (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. Cal. Code. Civ. Proc. (“CCP”) § 2031.310(a). The moving party has the initial burden of showing good cause for the discovery sought supported by a fact-specific showing of relevance. CCP § 2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98. The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790. For discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546. Once the demanding party establishes good cause, then the burden shifts to the responding party to justify any objections made to document disclosure. Kirkland, supra, 95 Cal.App.4th at 98.

As a preliminary matter, after reviewing the Separate Statement in support of this motion, this Court finds that Plaintiff has established a prima facie showing of relevance for each of the requests; each of the documents sought is certainly relevant to the litigation at hand within the meaning of Gonzalez. See Gonzalez, supra. Thus, the burden shifts to Defendants to justify any objections made to document disclosure.

1. A.     FedEx’s Responses Regarding Inability to Comply

A representation of inability to comply with the particular demand… shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. CCP § 2031.230.

Regarding RPDs 1, 2, 4, and 5, Defendants have represented that no responsive documents exist and set forth boilerplate objections. However, in none of these responses have Defendants affirmed that “a diligent search and a reasonable inquiry has been made in an effort to comply with that demand”.

Therefore, with regards to RPDs 1, 2, 4, and 5, the motion to compel is GRANTED.

1. B.     FedEx’s Response to RPD 9

With regards to RPD 9, Defendants have responded with documents that purport to be responsive to RPD 9. However, these documents appear to be incomplete; according to Plaintiffs, the document received specified that it was “page 1 of 3” but page “2 of 3” was never produced.

Therefore, with regards to RPD 9, the motion to compel is GRANTED.

1. C.     FedEx’s Objections to Requests

A vague and ambiguous objection to a discovery request generally will not be sustained unless the request is unintelligible.  Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783. A court cannot compel disclosure of the contents of privileged documents in order to rule on the objection to a discovery request. Evid. Code § 915; Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1619. However, the party claiming the privilege has the burden to show that the communication sought to be suppressed falls within the terms of the claimed privilege. D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729.

With regards to RPDs 17 and 28, Defendants have simply raised boilerplate objections as to “vague and ambiguous” without specifying where the vagueness or the ambiguity is. In its review of the requests, this Court has not found that the requests are so vague and ambiguous as to be unintelligible.

With regards to RPDs 28 and 32, Defendants have claimed both attorney client privilege, citing Scripps v. Health Superior Court (Reynolds) (2003) 109 Cal.App.4th 529 as support, as well as work product, citing Nacht v. Lewis Architects Inc. v. Superior Court (1996) 47 Cal.App.4th 214 as support. However, even one of the cases Defendants cite supports the proposition that Defendants must first establish that privilege applies in order to reap the benefits of the protection. See Scripps, supra, 109 Cal.App.4th at 533 (“While attorney-client communications are presumed to be confidential (§ 917), the party claiming the attorney-client privilege as a bar to disclosure has the burden of showing that the communication sought to be suppressed falls within the parameters of the privilege”).

In this case, the Defendants have not produced a privilege log in support of their assertion of privilege for either RPD 28 or 32. This Court cannot compel production of documents that may be protected under privilege.

Thus the motion to compel is GRANTED with respect to RPD 17 and DENIED with respect to 28 and 32. Defendants are ordered to produce a privilege log with regards to RPD 28 and 32.

 

1. III.               Monetary Sanctions

Plaintiffs’ counsel makes a request for $1090.00 in monetary sanctions; $500 (at a rate of $250 an hour) for the preparation of this motion, $500 (at a rate of $250 an hour) in anticipation of time spent drafting a reply to opposition and attending the hearing, and $90 for filing and reporting fees.

The Court shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel discovery, unless it finds that party acted with “substantial justification” or other circumstances render sanctions “unjust.” CCP § 2031.310(h). However, this motion was unopposed, therefore there is no basis for granting sanctions pursuant to this section of the Code.

Counsel for Plaintiffs cite alternatively as support CCP section 2023.010. This section lists several misuses of discovery, among which, is subsection (e), making, without substantial justification, an unmeritorious objection to discovery. This section alone does not in of itself set forth any provisions regarding the issuance of monetary sanctions. Section 2023.030 lists remedies for such misuse, among which are monetary sanctions, but only “[t]o the extent authorized by the chapter governing any particular discovery method or any other provisions of this title.” As such, section 2023.030 does not provide an independent basis for an award of sanctions. Since no opposition was filed, Counsel should have cited Cal. Rules of Court, rule 3.1348(a) as support.[3]

Therefore, Plaintiffs’ motion for monetary sanctions is DENIED.

1. IV.              Conclusion

The motion is GRANTED IN PART and DENIED IN PART.  Defendants are ordered to respond to RPDs 1, 2, 4, 5, 9, and 17 without objection and within 20 days of the date of the filing of this Order. Defendants shall produce a privilege log with respect to RPD 28 and 32 without objection and within 20 days of the date of the filing of this Order.

Plaintiffs’ motion for monetary sanctions is DENIED.