Case Number: BC585240 Hearing Date: January 16, 2018 Dept: 98

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

PEDRO ALEMAN,

Plaintiff,

vs.

LONG BEACH TRANSIT, a public entity; CITY OF LONG BEACH, a public entity; PATEISHA GRIGGS, an individual,

Defendants.

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CASE NO.: BC585240

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET FOUR

Dept. 98

1:30 p.m.

January 16, 2018

I. INTRODUCTION

On June 15, 2015, Plaintiff Pedro Aleman (“Plaintiff”) filed this action against Defendants Long Beach Transit (“LBT”), City of Long Beach, and Pateisha Griggs (collectively, “Defendants”). Plaintiff alleges that Griggs, acting within the course and scope of her employment with LBT, negligently operated a bus and hit Plaintiff, a pedestrian, in the crosswalk.

On July 26, 2017, Plaintiff served Request for Production of Documents, Set Four (“Set Four”) on LBT. (Declaration of Lyssa A. Roberts, ¶ 2.) On September 27, 2017, LBT served responses containing only objections. (Roberts Decl., ¶ 4.) On November 29, 2017, the parties participated in an Informal Discovery Conference (“IDC”), but the issues were not resolved. Plaintiff now seeks an order compelling further responses to Set Four.

II. LEGAL STANDARDS

Upon receipt of discovery requests, the propounding party may move for an order compelling a further response if the propounding party deems that the responses are evasive, incomplete, an objection is without merit or too general. (Code of Civ. Proc., §§ 2030.300, subd. (a), 2031.310, subd. (a).) A motion for an order compelling further responses shall be accompanied by a meet and confer declaration in compliance with CCP § 2016.040 (Code of Civ. Proc., §§ 2030.300, subd. (b), 2031.310, subd. (b)(2)), and notice of the motion shall be given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the parties have agreed in writing, or the party requesting the order waives any right to compel further responses (Code of Civ. Proc., §§ 2030.300, subd. (c), 2031.310, subd. (c).)

A motion to compel further responses to interrogatories or requests for production of documents must include a separate statement providing all the information necessary to understand each discovery request and response at issue. (Cal. Rules of Court, Rule 3.1345.) The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and full response. (Cal. Rules of Court, Rule 3.1345(c).)

A motion requesting an order compelling further responses to a demand for production of documents must set forth specific facts showing good cause justifying the discovery sought by the demand. (Code of Civ. Proc., § 2031.310, subd. (b)(1).) If good cause is shown, the burden shifts to the responding party to justify any objections made to document disclosure. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

III. DISCUSSION

Plaintiff served its Request for Production of Documents, Set One (“Set One”) on February 10, 2016 and Request for Production of Documents, Set Three (“Set Three”) on March 28, 2017. LBT served responses to both sets of discovery, consisting mostly of objections, and no motions to compel further responses were brought by Plaintiff. On July 26, 2017, Plaintiff served Set Four on LBT, and LBT served responses on September 27, 2017.

At the IDC, LBT agreed to provide further responses to Requests Nos. 4 and 5. (Declaration of Sara Hakami, ¶ 6.) On December 14, 2017, LBT served it supplemental responses to Requests Nos. 4 and 5. (Hakami Decl., ¶ 7; Exh. A.)

Still at issue are Plaintiff’s Requests for bus driver training materials and Griggs’s driver qualifications. LBT argues that: (1) the requested documents are irrelevant because LBT has admitted vicarious liability, barring any claims of negligent entrustment, hiring or retention, and (2) these requests have already been asked and answered in Plaintiff’s previous sets of discovery.

Relevance

LBT argues Plaintiff’s Motion should be denied because it has admitted vicarious liability, which bars Plaintiff’s claims of negligent entrustment, hiring, or retention. As such, LBT argues the requested documents are not relevant.

The Court agrees that LBT’s admission of vicarious liability bars separate claims for negligent entrustment, hiring or retention. (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1152, 1157 [where an employer admits vicarious liability for any negligent driving by its employee, the plaintiff cannot pursue a negligent entrustment claim, and a “claim that an employer was negligent in hiring or retaining an employee-driver rarely differs in substance from a claim that an employer was negligent in entrusting a vehicle to the employee”].)

In her supplemental brief, Plaintiff seemingly concedes that case law extends to claims of negligent hiring and retention. However, Plaintiff argues that while claims of negligent entrustment, hiring or retention may not be pursued at trial, relevant documents must still be produced in discovery. Plaintiff contends the requested training materials and Griggs’s driver qualifications are still relevant to the issue of whether Griggs was negligent as a driver. LBT has maintained that Griggs acted reasonably in entering the intersection when the traffic signal was yellow. Plaintiff argues that Griggs’s training and qualifications are relevant to whether she acted reasonably under the circumstances, which is central to liability.

The Court finds Plaintiff has demonstrated good cause justifying the discovery sought in the demand, as the requested training materials and Grigg’s qualifications are still relevant to whether she, as the driver, was negligent.

Timeliness

LBT contends Plaintiff’s Set Four is essentially the same as requests in Set One and Set Three. LBT argues that Plaintiff failed to bring motions to compel within the 45-day deadline as to Set One and Set Three, and that Plaintiff now attempts to circumvent the 45-day deadline by serving substantially similar requests and this Motion to Compel Further as to Set Four.

“[T]he legislature has explicitly stated that unless a party moves to compel further response within 45 days of the unsatisfactory response, he waives any right to compel a further response.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1409.) Therefore, a motion to compel further responses to a request made in Set Four, that is essentially the same as a request made and responded to in Set One or Set Three, is considered untimely. (Id. at pp. 1408-1409 [“a plaintiff served the defendant with a first set of interrogatories . . . [and] defendant objected to one of the interrogatories, No. 10. Plaintiff made no motion to compel further answers to interrogatory No. 10 . . . [and] served a second set of interrogatories, one of which, No. 14, was for all intents and purposes the same as No. 10. The defendant objected to No. 14, and plaintiff filed a motion to compel. It was agreed that, if the motion pertained to the second set, it was made within the 45-day limitation of section 2030, but, if in reality, the motion was simply a circumvention to overcome the failure to move to compel responses to the first set of interrogatories, the motion was not timely”].)

“It would be an absurdity to say that a party who fails to meet the time limits of section 2030 may avoid the consequences of this delay and lack of diligence by propounding the same question again.” (Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490, 494.) The Court agrees with LBT that many of the requests in Set Four are duplicative of Plaintiff’s requests in Set One and Set Three, to which LBT served responses and Plaintiff never filed motions to compel further responses. (Opposition, 6:24-28; 7:1-25.)

For example, in Set Three, Plaintiff requested documents relating to bus driver training as to the use of bus horns at intersections, and policies, procedures, and training for bus entry to an intersection on a yellow light. (Hakami Decl., ¶ 10; Exh. D, Nos. 10, 11, 12.) In Set Four, Plaintiff requested documents relating to bus driver training as to operating a bus in an intersection, approaching an intersection, and relative to traffic signals. (Hakami Decl., ¶ 11; Exh. E, Nos. 6, 7, 8.) Although Plaintiff’s phrasing in Set Four is broader, the Court finds the requests seek the same information as that requested in Set Three.

Monetary Sanctions

Both parties request monetary sanctions. “[T]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civ. Proc., § 2031.310, subd. (h).)

As the Motion is granted in part and denied in part, as set forth below, the Court finds that both parties acted with substantial justification in making and opposing this Motion. The requests for monetary sanctions are DENIED.

IV. CONCLUSION

In light of the foregoing, the Motion to Compel Further Responses to Requests Nos. 4 and 5 are denied as MOOT. The Motion to Compel Further Responses to Requests Nos. 2, 6, 7, and 8, are DENIED as untimely, as they are, for all intents and purposes, the same as requests made in Set One and Set Three. The Motion to Compel Further Responses to Requests Nos. 1 and 3 are GRANTED. LBT is ordered to serve further responses to Requests Nos. 1 and 3 within twenty (20) days of the date of this Order.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 16th day of January 2018

Hon. Holly J. Fujie

Judge of the Superior Court