Lawzilla Additional Information:
Per the Los Angeles court records defendant is represented by attorney Stuart Price of the Bryan Cave Law Firm who is being sanctioned by the court.

Case Number: KC066276 Hearing Date: April 10, 2018 Dept: J

Re: USA Waste of California, Inc. etc. v. City of Irwindale, etc., et al. (KC066276 R/T KC066049)

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION, SET ONE AND FOR SANCTIONS

Moving Party: Plaintiff USA Waste of California, Inc.

Respondent: Defendant Commodity Trucking Acquisition, LLC

POS: Moving OK; Opposing OK; Reply OK
This action arises from a dispute involving the filling of the Arrow Pit, a former open pit sand and gravel quarry consisting of approximately 65 acres of undeveloped land in the City of Irwindale (“City”). The complaint was filed on 8/26/13. On 10/15/13, this case was deemed related to case number KC066049, Irwindale Partners L.P. v. USA Waste of California, et al. The First Amended Complaint was filed February 13, 2014.
On 8/30/16, Dispatch Transportation, LLC dba Windrow Earth Transport (“Dispatch”) filed its Chapter 7 bankruptcy petition; on 9/1/16, Dispatch filed a “Notice of Stay of Proceedings.” On 11/8/16, a Declaratory Judgment as between plaintiff and City was entered. On 11/28/16, plaintiff dismissed its second and fourth causes of action, with prejudice.
On 9/21/17, Commodity Trucking Acquisition LLC (“CTA”) filed its Complaint in Intervention, asserting a cause of action therein for Declaratory Relief. Plaintiff’s Second Amended Complaint, filed 10/10/17, asserts causes of action against Defendants Dispatch and CTA for:

Intentional Interference with Contractual Relations
Unfair Competition (Business & Professions Code §§ 17200 et seq.)

On 10/10/17 USA Waste’s Motion For Leave to File Second Amended Complaint adding allegations against CTA was granted, and its proposed Second Amended Complaint was deemed filed and served that day.

The Final Status Conference is set for 9/17/18. A jury trial is set for 9/25/18.

Plaintiff USA Waste of California, Inc. (“plaintiff”) moves for an order, per CCP §§ 2015.5, 2003.010, and 2030.290, compelling Defendant Commodity Trucking Acquisition, LLC (“defendant”) to provide further responses to its Requests for Production, Set One, Nos. 1-17; more specifically, plaintiff requests that the court order defendant to (1) produce a privilege log so that plaintiff can properly evaluate defendant’s redactions and challenge any, if necessary and (2) “organize[] and label[] [the production] to correspond with the categories in the demand” as required by CCP § 2031.280(a). Alternatively, plaintiff requests that the court order defendant to provide further responses to plaintiff’s requests for production that identify the documents responsive to a specific request. Plaintiff also seeks sanctions against defendant in the amount of $5,175.00.

“Any documents produced in response to a demand for inspection, copying, testing, or sampling shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand.” CCP § 2031.280(a).

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.” CCP § 2031.310(a). “A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040…” CCP § 2031.310(b). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”

“In the…specific context of a request to produce documents, a party who seeks to compel production must show ‘good cause’ for the request…but where…there is no privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance.” Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. CCP § 2017.010. “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement…’” Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [citation omitted; emphasis theirs. “Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. (Davies v. Superior Court (1984) 36 Cal.3d 291, 301.) These rules are applied liberally in favor of discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)” Id.

“Declarations are generally used to show the requisite ‘good cause’ for an order to compel inspection. The declarations must contain ‘specific facts’ rather than mere conclusions.” Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 8:1495.7. The Declaration of Chad Chen (“Chen”) adequately sets forth good cause.

On 11/8/17, plaintiff served its Request for Production of Documents, Set No. One on defendant. (Chen Decl., ¶ 6, Exhibit “A”). On 12/12/17, defendant served verified responses thereto. (Id., ¶ 7, Exhibit “B”). The parties have met and conferred.

Nos. 1-4, 7, 8, 10-13 and 15-17

With respect to Nos. 1-4, 7, 8, 10-13 and 15-17, after interposing objections, defendant agreed to “produce any responsive, non-privileged documents in its possession, custody, and control upon entry of Stipulated Protective Order.” On 12/28/17, Chen sent defendant’s counsel Stuart Price (“Price”) a meet and confer letter, advising therein, inter alia, that a protective order had already been entered in this matter and enclosing a copy of same. (Id., ¶ 9, Exhibit “C”). On 1/5/18, defendant’s counsel Ann Redcross Beehler (“Beehler”) advised, with respect to the aforesaid requests, that defendant “is in the process of searching and reviewing these documents, and will produce responsive documents on a rolling basis as soon as they are available.” (Id., ¶ 10, Exhibit “D”). Counsel subsequently agreed that defendant would produce responsive documents to the aforesaid requests in three separate productions on 1/29/18, 2/5/18 and 2/12/18. (Id., ¶ 12).

Defendant, in fact, made productions on 2/2/18, 2/9/18 and 2/28/18. Plaintiff, however, complains that defendant’s productions did not comply with CCP § 2031.280(a) and included heavily redacted documents unaccompanied by a privilege log. Defendant, in turn, claims that it “produced electronically 3,971 pages of documents in response to [plaintiff’s] Requests…[which] included e-mails and attachments, filtered by counsel for responsiveness. [Defendant] also produced metadata for the record, which allows [plaintiff] to search the records by date and keyword…[Defendant] also offered to allow [plaintiff] to inspect additional hardcopy records at its offices.” (Beehler Decl., ¶ 21). Defendant represents that the electronic records were produced “as they are kept in the usual course of business.” (Response to Separate Statement, 2:12-13; 4:9-10; 6:6-7; 8:6-7; 13:13-14; 15:7-8; 19:2-3; 20:26-27; 22:25-26; 24:20-21; 28:20-21; 30:15-16 and 32:8-9). This representation, however, seems to contradict defense counsel’s statement that the documents were “filtered by counsel for responsiveness.” The court will hear from counsel for defendant on the issue of compliance with CCP § 2031.280.

With respect to the issue of the privilege log, however, defendant’s position is basically that it offered to provide a privilege log to plaintiff if plaintiff did so in connection with its discovery responses and that since plaintiff refused to provide such a log, defendant should not have to provide one. (Id., 2:24-27; 4:21-24; 6:18-21; 8:18-21; 13:25-28; 15:19-22; 19:13-16; 21:9-12; 23:8-11; 25:3-6; 29:3-6; 30:26-31:1 and 32:19-22). This position is not well-taken. Counsel for plaintiff represented to the court and counsel for defendant during an April 2, 2018 hearing that plaintiff, in responding to defendant’s discovery requests, had withheld no documents on the basis of privilege.

The court orders defendant to provide a privilege log with respect to Nos. 1-4, 7, 8, 10-13 and 15-17 within 20 days.

Nos. 5, 6, 9 and 14

Defendant refused to produce any documents responsive to Nos. 5, 6, 9 and 14. These requests read as follows:

Demand No. 5: ANY and ALL DOCUMENTS that evidence the total dollar amount of payments made by or on behalf of CTA to any CONSULTING ENGINEER [this phrase was previously defined as “the geotechnical engineer as defined in section 7.0 of the LICENSE AGREEMENT”] for work performed at the MANNING PIT [this phrase was previously defined as “the former mining pit and now a vacant property owned by the CITY of approximately 37 acres, located south of Arrow Highway, between Allen Drive and Vincent Avenue in the City of Irwindale, California”] pursuant to the terms of the LICENSE AGREEMENT [this phrase was previously defined as “the October 10, 2007, License Agreement For Performance of Remediation and Grading Work between CITY and DISPATCH regarding the MANNING PIT”] from October 1, 2007 to December 1, 2014.

Demand No. 6: ANY and ALL DOCUMENTS that evidence the total dollar amount of payments made by or on behalf of CTA to any geotechnical engineer of record for work performed at the MANNING PIT from October 1, 2007 to December 1, 2014.

Demand No. 9: ANY and ALL DOCUMENTS that evidence a joint defense and litigation arrangement between CTA and the CITY between October 1, 2007 to the present regarding issues related to the MANNING PIT.

Demand No. 14: ANY and ALL COMMUNICATIONS between CTA and EXPERT CONSULTANTS [this phrase was previously defined as “mean[ing] and refer[ring] to the following individuals: Allen Suderman, CPA; Thomas D. Hess, II; Peter Skopek, Ph.D., P.E., G.E.; James M. Evenson, P.G., C.H.G.; Brett MacDonald; and William Tam”] regarding the 2013 DISPATCH ACTION [this phrase was previously defined as “the litigation that took place between the time original complaint was filed on August 26, 2013, and the time DISPATCH filed for Chapter 7 bankruptcy on August 30, 2016, in the case entitled USA Waste of California, Inc. v. City of Irwindale, et al., Los Angeles County Superior Court, Case No. KC066276”].

Defendant, however, represents in its opposition, that it has, in fact, “produced records responsive to” Nos. 5 and 6 and has additionally “offered to make available for inspection additional records at its offices.” (Response to Separate Statement, 10:10-11 and 12:2-3). The court orders defendant to provide further responses to Nos. 5 and 6 reflecting the foregoing within 20 days.

With respect to Nos. 9 and 14, defendant has not met its burden of showing that its objections are valid. See Columbia Broadcasting System, Inc. v. Superior Court for Los Angeles County (1968) 263 Cal.App.2d 12, 18. Defendant, in its response to plaintiff’s separate statement, contends only that these requests seek irrelevant information. However, “[u]nless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” CCP § 2017.010. “[T]he proper rule is declared to be not only one of liberal interpretation, but one that also recognizes that disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it. Even in those instances wherein the statute requires a showing of good cause, that showing must be liberally construed.” Greyhound Corp. v. Superior Court In and For Merced County (1961) 56 Cal.2d 355, 378. Further responses, then, are ordered within 20 days.

Sanctions are awarded in the reduced amount of $2,210.00 [i.e., 4 hours preparing motion at $325.00/hour, plus 2 hours attending hearing at $425.00/hour, plus $60.00 filing fee], payable by defendant and its counsel to counsel for plaintiff within 20 days.