Daniel Brucker, et al. v. Southern California Edison, et al.
Case No: 17CV05746
Hearing Date: Tue Apr 02, 2019 9:30

Nature of Proceedings: Motion Compel Further Responses to Requests for Production, Set One, from Defendant Frontier Communications

Motion to Compel Further Responses to Requests for Production, Set One

Attorneys: For Plaintiff: Brian J. Heffernan (Engstrom, Limpsomb & Lack – Los Angeles)

For Defendant Frontier: James B. Kamanski (Los Angeles)

Ruling: The Court denies plaintiffs Daniel Brucker and Janell Brucker’s motion to compel further responses to request for production of documents, set one. The Trial Date of 6/25 and the MSC Date of 6/7 are confirmed.

Background:

Plaintiffs Daniel Brucker and Janell Brucker are the owners of the Ogilvy Ranch, a ranch property in Santa Barbara County. In August 2016, the ranch sustained damage as the result of the Rey Fire, a wildfire that started near Paradise Road in the Los Padres National Forest. The fire was ignited when a large oak tree fell against electrical power lines owned by defendant Southern California Edison Company. The power lines slapped together and fell to the ground, starting a brush fire. Defendant Frontier Communications (“Frontier”) owns the communication facilities attached to the SCE power lines. Defendant Utility Tree Services, Inc. was hired by SCE to maintain the appropriate amount of clearance around its power lines and equipment.

The causes of action in plaintiffs’ complaint are: 1) negligence, 2) inverse condemnation, 3) trespass, 4) private nuisance, 5) violation of Public Utilities Code § 2106, and 6) violation of H&S Code § 13007. MSC is scheduled for June 7 and trial for June 25, 2019.

Motion:

Plaintiffs have filed a motion to compel further responses to request for production of documents, set one, from defendant Frontier. In the motion, plaintiffs say Frontier has failed to provide any documents and, in the memorandum, plaintiffs say they seek an order compelling production of documents that Frontier indicated were forthcoming in the written responses. Plaintiffs say that only after Frontier produces what it intends to produce will plaintiffs be in a position to outline reasons compelling further responses for specific categories of documents.

The motion is defective for a number of reasons. First, plaintiffs bring the motion under CCP § 2031.310, subdivision (b)(2) which requires a meet and confer declaration under CCP § 2016.040. There is no meet and confer declaration submitted with the motion. Second, CRC 3.1345(a)(3) requires a separate statement for motions to compel further responses. There is no separate statement submitted with the motion.

The substance of the motion appears to be seeking an order compelling Frontier to comply with its response to the request for production, set one. That would be a motion under CCP § 2031.320. But plaintiff has not noticed such a motion.

In a notice of erratum regarding its opposition, Frontier says it misinterpreted the motion and, upon further review, the motion is directed at compelling production of materials that Frontier indicated were forthcoming. The Court understands Frontier’s difficulty interpreting the motion. The Court has had the same difficulty.

The Court understands plaintiffs’ frustration with the pace of discovery. The Court discussed this matter with counsel at the case management conference on January 4. The Court anticipates that the parties will cooperate and get discovery completed. If not, the Court will hear the motions to compel. However, the parties must follow the required procedures. For the foregoing reasons, the Court denies plaintiffs Daniel Brucker and Janell Brucker’s motion to compel further responses to request for production of documents, set one.

In its erratum, Frontier says that it is following through with the production of non-privileged materials and is producing its persons most knowledgeable of the fire for deposition. The Court expects that this will informally resolve the issues regarding discovery.