Case Number: BC621311 Hearing Date: June 11, 2018 Dept: 32

KIERAN KELLEHER,

Plaintiff,

v.

CITY OF LONG BEACH,

Defendant.

Case No.: BC621311

Hearing Date: June 11, 2018

[TENTATIVE] order RE:

(1) plaintiff’s combined MOTION To compel further responses to form interrogatories and requests for admissions from city of long beach and justin krueger

(2) plaintiff’s motion to compel defendant justin krueger to product documents designated in deposition notice and to appear for deposition

BACKGROUND

Plaintiff Kieran Kelleher (“Plaintiff”) brings this action against Defendants City of Long Beach, Long Beach Police Department Chief Robert Luna, Jim McDonnell, Justin Krueger and Alvin Do (1) excessive force; (2) denial of medical care; (3) retaliation; (4) failure to properly screen and hire; (5) failure to properly train; (6) failure to supervise and discipline; (7) violation of the Bane Act; (8) assault; (9) battery; (10) negligence; and (11) intentional infliction of emotional distress. As set forth in the complaint, Plaintiff alleges Long Beach police officers came to Plaintiff’s house and used unnecessary and excessive force while handcuffing Plaintiff that led to his broken wrist and need for subsequent wrist surgery.

DISCUSSION

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 an objection to an interrogatory is without merit or too general. (CCP 2030.300(a)(3).)The responding party has the burden of justifying the objections to the form interrogatories (“FIs”) and special interrogatories (“SIs”). (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221.)

On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete. (2) An objection to a particular request is without merit or too general.” (CCP § 2033.290.)

Plaintiff brings a combined motion to compel further responses pursuant to CCP §2030.300 for Defendant City of Long Beach and Defendant Justin Krueger.

Meet and Confer

As set forth in the motion, Plaintiff served Form Interrogatories, Set One (“FIs”) and Requests for Admission, Set One (“RFAs”) on October 27, 2016. Plaintiff’s granted two extensions making the responses due on December 29, 2016. (Dorsett Decl. ¶3.) On December 15, 2016, Defendants filed a motion for protective order objecting to the number of RFAs (combined total of 2,332 in six sets of RFAs); Form Interrogatory 17.1 correlating to the RFAs; and discovery propounded on two other Defendants. On December 20, 2016, Plaintiff’s counsel claims they emailed Defense counsel stating that “it appeared Counsel had no objections” to any of the other FIs. On January 11, 2017, Defense counsel replied that the motion for a protective order stayed the requirement of responding to the RFAs and FIs. On February 17, 2017, Defendants removed the case to federal court and took their motion for protective order off calendar such that the motion was never heard. On May 30, 2017, after the case was remanded, this court issued an order lifting the stay and restoring the action to the civil active list. On January 9, 2018, Plaintiff’s counsel sent a meet and confer offering to dismiss two other Defendants, withdraw certain sets of discovery and reduce the number of RFAs, provided that Defendants gave full and complete responses to each of the remaining RFAs and all of the FIs, including FI 17.1 for each remaining RFAs, without any objections. (Exhibit B.) Plaintiff contends this offer was not accepted by Defense Counsel because he would not agree to serve responses without objections. (Motion 4:19-21.) In opposition, Defense counsel contends Plaintiff’s counsel does not know what they actually agreed to during the meet and confers. (Opp 4:18-19.) On January 26, 2018, Counsel served responses and objections for both Defendants to the FIs and RFAs. Further meet and confer efforts were made after the responses were received, however Parties could not resolve their issues informally as the substance of those meet and confers is at issue.

Form Interrogatories

Plaintiff contends Defendants made improper objections or provided incomplete responses to FIs 2.2, 2.3, 2.7, 4.1, 4.2, 12.1, 12.2, 12.3, 12.4, 12.6, 12.7, 14.2, 15.1, 16.1, 16.8, 16.10, and 17.1. Defendant’s objections include privacy, peace officer personnel record objections and attorney client privilege and work product objections. (Exhibit C.) Plaintiff contends that all of Defendant’s objections were waived due to untimely responses. (CCP §§ 2030.290(a), 2033.280(a).) In opposition, Defendant contends it is unfair and disingenuous of Plaintiff to claim that objections were waived when there was a motion for a protective order, the hearing on the motion came off-calendar because of removal to federal court and Plaintiff’s waited an extended period of time to raise the issue of outstanding discovery after remand. There is a dispute regarding whether Defense counsel offered to provide responses to the other FIs not addressed in the protective order and it was denied by Plaintiff’s counsel. (Cook Decl ¶4-5.)

RFAs

Further Plaintiff contends Defendants only answered the reduced list of RFAs, although Plaintiff’s offer to limit the RFAs applied only if Defendants responded without objections, and as such the unanswered RFAs should be deemed admitted. Plaintiff’s generally state that they did offer to reduce the RFAs during meet and confers after May 30, 2017. (Dorsett Decl. ¶12.) Defense counsel contends the unanswered requests for admission were withdrawn by counsel over a meet and confer, however Defense counsel does not evidence this in writing. (Russell Decl. ¶7.)

Conclusion

The Court finds that all objections have not been waived due to the conflicting declarations and interpretation of counsel regarding what was agreed to during the meet and confer discussions. Plaintiff’s motion to compel further responses to the RFAs is DENIED on the grounds that the 387 RFAs propounded was an unwarranted annoyance and oppressive due to quantity and the declaration of necessity does not justify the sheer number of requests.

The Plaintiff’s motion to compel further is GRANTED as to the following FIs on the basis that Defendants have not adequately substantiated their objections to FI: 12.1, 12.2, 12.3, 16.1, 16.4, 16.5, 16.8, and 17.1. Defendant’s answers referring Plaintiff to other documents is proper pursuant to CCP §2030.230, however Defendants shall supplement these responses to provide specification in sufficient detail to permit the propounding party to locate and identify the documents form which the answer may be ascertained. Further, Defendant is ordered to separately provide a response to FI 17.1(a)-(e) for each RFA. All supplemental responses are due within 30 days of this hearing. Merely referencing see police report or deposition is not proper answer. (See, Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783-84.)

The Plaintiff’s motion to compel further is DENIED as to FIs Defendants 2.2, 2.3, 2.5, on the basis that this information would allow someone to identify a peace officer’s home address, personal vehicle, and/or information about the peace officer’s family. In this case, it does not appear that this information is relevant or likely to lead to the discovery of admissible evidence.

Sanctions: Plaintiff request sanctions against Defendant and attorney Howard Russell in the sum of $17,940.00 for willful misuse of the discovery process CCP §2023.010. Plaintiff’s counsel’s rate is $650/hour. However, the Court does not find evidence a willful misuse of the discovery process, but miscommunication between counsel as Parties cannot agree on the substance of their conversations during the meet and confers.

Motion to Compel Deposition of Justin Krueger and Documents Requests

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP § 2025.480(a).) “The burden of establishing that a particular matter is privileged is on the party asserting that privilege.” (San Diego Professional Ass’n v. Superior Court of San Diego County (1962) 58 Cal. 2d 194, 199.) “Any party may obtain discovery. . . by taking in California the oral deposition of any person, including any party to the action.” (CCP § 2025.010.) As such, Plaintiff is entitled to take Defendant Krueger’s deposition and did so on November 3, 2016. (Motion 3:5.) Defendant produced documents at the deposition except for in response to five of the twelve requests and personally served his written objections and response to the Notice upon arrival.

Plaintiff’s representation to the Court that Defendant only provided “nine documents” is disingenuous given the footnote on the bottom of page 3 detailing the contents of these documents are greater in quantity than implied.

Meet and Confer

On December 19, 2018, Plaintiffs sent Defendants a meet and confer letter stating that Defendant had refused to answer 20 questions at his deposition; the documents were not categorized by request; Counsel’s objections are improper; and the objections were untimely because they were not served at least three days before the deposition. Defendants rebutted these contentions in their reply meet and confer letter. (Exh. C.)

Documents

Any party served with a deposition notice that does not comply with Article 2 waives any error or irregularity unless that party promptly serves a written objections specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served. (CCP 2025.410(a).) However, as stated by Defendant in opposition, the CCP provision does not address substantive objections, but specifically applies to form objections.

A motion to compel production of documents described in a deposition notice must be accompanied by a showing of good cause. (CCP §2025.450(b)(1).) The moving party must lodge with the court, at least five days before hearing on the motion, a certified copy of whatever parts of the transcript are relevant to the motion. (CCP §2025.480(h).)

Plaintiff does not make a sufficient showing of good cause to compel responses to these requests. Upon review of Plaintiff’s notice of taking deposition of Officer Justin Krueger and Request for Production of Documents, the Court finds that Requests are vague and overbroad in time, place, and scope. Further, many of the requests properly implicate Evidence Code §1043 which was the subject of Plaintiff’s May 2, 2018 Pitchess motion. Plaintiff’s counsel did not lodge a certified copy of the transcript where specific questions were unanswered and does not identify these in the motion or separate statement, as such the Court DENIES Plaintiff’s motion for further deposition and production of documents in the deposition notice.

Sanctions:

Plaintiff request sanctions against Defendant and attorney Howard Russell in the sum of $17,030.00 for willful misuse of the discovery process CCP §2023.010, 2025.450(g), and 2025.480(j). Plaintiff’s motion to compel deposition and further documents designated in the deposition notice is DENIED, and as such the request for sanctions is as well.