Case Number: BC613288 Hearing Date: January 17, 2018 Dept: 61

Plaintiff’s Motion to Compel Further Responses to Request for Production of Documents is GRANTED as to Request Nos. 51, 52, 54, and 56, and DENIED as to Request No. 55.

Both parties’ requests for sanctions are DENIED.

MOTION TO COMPEL FURTHER – PRODUCTION OF DOCUMENTS

“A party may demand that any other party produce . . . a document that is in the possession, custody, or control of the party on whom the demand is made.” (Code Civ. Proc., § 2031.010(b).) The demanding party may move for an order compelling further response to the demand 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. (Code Civ. Proc., § 2031.310(a).) “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand,” and “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310(b).)

A motion to compel a further response to an inspection demand must set forth specific facts showing “good cause” justifying the discovery sought by the inspection demand. (Code Civ. Proc., § 2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 444.) Once the moving party demonstrates good cause for the discovery, the burden is on the responding party to justify any objection or failure to fully respond to the inspection demand. (Coy v Superior Court (1962) 58 Cal.2d 210, 220.)

As an initial matter, the court finds that the parties sufficiently met and conferred prior to the filing of this motion.

GOOD CAUSE

Ochoa asks this court to compel the production of Requests Nos. 51, 52, 54, 55, and 56 of her Request for Production of Documents, Set Two. (Motion at p. 2.) LACMTA objects that Ochoa has not shown good cause for the requests, since those requests pertain to LACMTA’s overall policies regarding repairs and ADA compliance, while Ochoa’s SAC only alleges negligent operation of the wheelchair lift on the part of the driver. (SAC at p. 4.)[1]

The scope of discovery is broad, and includes “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.” (Code Civ. Proc. § 2017.010.) The court concludes that the items requested here are discoverable. Although Ochoa’s theory of recovery may now rest on allegations of negligent operation of the wheelchair lift, as opposed to negligent maintenance or training, repair records, manuals, and policies are all broadly relevant to the subject matter of the litigation in that they may shed light on what caused Ochoa’s injury. Ochoa’s motion will not be denied on this basis.

DUPLICATIVE & UNTIMELY

LACMTA next argues that these requests are duplicative of requests that Ochoa offered before, without seeking a motion to compel further. (Opposition at p. 7.) A motion to compel further responses to a request for production of documents must ordinarily be brought “within 45 days of the service of the verified response.” (Code Civ. Proc. § 2031.310, subd. (c).) After that time has passed, the court lacks power to grant the motion. (See Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490, 494 [“In the context of this case 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 his delay and lack of diligence by propounding the same question again.”]; see also Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 [failing to abide by 45 day deadline “renders the court without authority to rule on motions to compel other than to deny them”].)

The previous requests for which responses were provided to Ochoa, or those at any rate which LACMTA has brought to this court’s attention, involved (1) maintenance records for the wheelchair lift on the vehicle at issue, (2) training and policy documents provided to the driver, and (3) repair and inspection reports for the vehicle at issue. (Opposition at p. 7; Pene Decl. Exh. H.)

The court concludes that Request No. 55 from the requests at issue here was properly the subject of previous requests for which Ochoa did not seek a further response. Request No. 55 asks for pre-trip checklists for the bus during a one-year period surrounding the incident. (Valenzuela Decl. Exh. D.) Ochoa had already asked for “pre-trip inspection reports” in Request No. 47 for her original Requests for Production, served on LACMTA in April 2016. (Pene Decl. Exh. H at p. 7.) Having failed to bring a timely motion as to the original request, Ochoa may not now seek to compel further responses. The motion for further responses is therefore DENIED as to this request.

However, the court does not regard the other requests as duplicative or untimely. Requests Nos. 51 and 56 seek LACMTA’s “Preventative Maintenance Program” and various “special bulletins,” which it does not appear were the subject of prior requests. Ochoa in prior responses only sought polices that had been given to the driver of the particular vehicle at issue, not LACMTA’s wider policies, which might provide another metric against which the driver’s negligence may be measured. It is likewise unclear what of Ochoa’s previous requests would have included “special bulletins.”

Request No. 54 seeks LACMTA’s ADA compliance policies, which likewise were not the subject of a prior request. And while Request No. 52’s language of “manuals” mimics that of Request No. 31, that earlier request once more involved only those manuals that had been given to the driver. Request No. 52 contains no driver-specific limitation.

LACMTA points to the stricken Request No. 5 from Ochoa’s Third Amended Notice of Deposition, which asked for “documents concerning or regarding the proper operation of the bus involved in the incident, including but not limited to the owner’s manual, the maintenance manual, and the instruction or operation book.” (Valenzuela Decl. Exh. B at p. 3.) There is indeed some overlap between this request and those at issue here. However, that request was stricken from the final notice and never received a response. The 45-day deadline for filing a motion to compel further does not begin until “the service of the verified response.” (Code Civ. Proc. § 2031.310, subd. (c).) LACMTA provides no authority for the proposition that a request may not be renewed after it is withdrawn, so long as it is withdrawn before a response is made.

LACMTA provides no other arguments against the motion other than utterly unsupported proclamations of privilege and undue burden. (Opposition at p. 8.) These conclusory arguments afford no basis for denying the motion.

The motion is therefore GRANTED as to Requests Nos. 51, 52, 54, and 56, and DENIED as to Request No. 55.

SANCTIONS

“[T]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response 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 Civ. Proc., § 2031.310, subd. (h).)

Because the court has only granted Ochoa’s motion in part, both parties’ requests for sanctions are DENIED.

[1] The SAC also alleges a cause of action for violation of the Unruh Civil Rights Act, which specifically alleges that LACMTA “fail[ed] to properly maintain the wheelchair lift.” (SAC at p. 5.) But LACMTA in its Opposition states that Ochoa has represented that she intends to dismiss the Unruh claims. (Opposition at p. 3.) Ochoa does not address this in her Reply.