Case Name: Holly Wright et al., v. Paul DaSilva et al.

Case No.: 16CV296446

I. Background and Discovery Dispute

This is a personal injury and wrongful death action arising from a motor vehicle accident. According to the allegations of the First Amended Complaint (“FAC”), defendant Paul Alexander DaSilva (“DaSilva”) drove through a red light and struck a vehicle containing Ashleigh Wright and Curtis Lanch who died as a result of their injuries; Jeremy Wright who sustained grievous physical injury; and Holly Wright and Richard Wright III who suffered minor physical injuries. Jeremy Wright, Holly Wright, Richard Wright III and Arvelle Lanch (collectively “Plaintiffs”) assert a cause of action for “Negligence, Grossly Reckless, and Wrongful Acts” against DaSilva as well as alleged employers DaSilva Dairy Farms, LP and DaSilva Dairy Management, Inc. , claiming they negligently operated and maintained the vehicle driven by DaSilva in a reckless manner. Plaintiffs additionally assert several causes of action for negligence, products liability and breach of warranty against certain entities allegedly engaged in the manufacture, sale and servicing of the vehicle the victims were in at the time of the collision.

On October 6, 2017, Holly Wright (“Plaintiff”) served DaSilva (“Defendant”) with Request for Production of Documents, Set One (“RPD”). Defendant served responses to the RPD on November 13, consisting of both objections and substantive answers. Defendant subsequently provided Plaintiff with a verification for its responses and additional document production on November 15. Plaintiff was dissatisfied with some responses, and her counsel consequently sent a meet and confer letter to Defendant’s counsel on December 12. Defendant’s counsel responded on December 28, indicating amended responses would not be provided. Plaintiff therefore filed the instant motion to compel further responses to RPD Nos. 5, 7, 11, 13-17, 19, and 21. Defendant opposes the motion.

II. Motion to Compel

A. Preliminary Issues

Defendant contends the motion should be summarily denied for several reasons discussed in turn below.

First, Defendant argues the notice of motion is defective because the grounds for relief are not specified as required by Code of Civil Procedure section 1010 and California Rules of Court, rule 3.1110(a).
Section 1010 states in pertinent part that a notice of motion “must state…the grounds upon which it will be made [.]” The purpose of this requirement is to “sufficiently define the issues for the information and attention of the adverse party and the court.” (Hernandez v. Nat. Dairy Products Co. (1954) 126 Cal.App.2d 490, 493.) Rule 3.1110(a) similarly provides that the “notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.
In the first paragraph of her notice, Plaintiff states: “The motion will be made on the ground that Defendant Paul DaSilva has failed to serve a timely and proper response to the above-described discovery.” (Notice of Mtn., p. 2:3-4.) Defendant does not explain how this statement is deficient. With that said, the grounds stated are imprecise. For example, while Plaintiff indicates the timing of the responses is a basis for the motion, that is not a statutory ground for moving to compel a further response (see Code Civ. Proc., § 2031.310, subd. (a)) and Plaintiff does not address timing in her memorandum of points and authorities.
Nevertheless, the notice does specify that the propriety of Defendant’s responses is at issue. Moreover, the grounds for the motion are otherwise apparent from Plaintiff’s supporting papers, which may be considered here in determining the adequacy of the notice. (Tarman v. Sherwin (1961) 189 Cal.App.2d 49, 52; see also.) Accordingly, there is no basis for concluding Plaintiff’s notice of motion is defective.
Next, Defendant asserts Plaintiff’s separate statement is deficient because it does not provide the text of Defendant’s responses to the RPD at issue. Defendant is correct. California Rules of Court, rule 3.1345(c) requires that a separate statement set forth, among other things, the text of each discovery response in question. Although the words “Text of Response” appear in Plaintiff’s separate statement relative to each RPD, Plaintiff did not actually set forth the text.
While the Court has discretion to deny the motion on this basis (see Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893), it declines to do so because Plaintiff attached a copy of Defendant’s responses to the separate statement and Defendant essentially remedied the defect by including the text of the responses in its opposing separate statement.

Lastly, Defendant contends Plaintiff failed to adequately meet and confer prior to bringing her motion.
A party moving to compel a further response to a document demand is obligated to meet and confer prior to bringing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) More particularly, the moving party must have engaged in “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Id., § 2016.040.) The level of effort required to satisfy the “reasonable and good faith attempt” standard depends upon the circumstances presented. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) At a minimum, a reasonable and good faith attempt at informal resolution requires the parties to present the merits of their respective positions with candor, specificity, and support. (Townsend v. Superior Court, supra, 61 Cal.App.4th at p. 1435.) Such attempt “entails something more than bickering with opposing counsel; rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)

Defendant insists Plaintiff’s meet and confer letter of December 12, 2017 does not demonstrate a reasonable and good faith effort at informal resolution and merely “levels generalized criticism at defendant and ignores all objections raised by defendants.” (Opp., p 5:3-7.) The Court finds Plaintiff minimally satisfied the meet and confer requirement. Plaintiff explained her position regarding the RPD at issue and, while his presentation could have been more thorough, Defendant firmly stated in response that no further responses would be provided thereby signaling an impasse.

In sum, Plaintiff’s motion is not fatally defective in any respect. The Court will therefore reach the merits of the motion.

B. Merits of the Motion

Upon receipt of a response to a request for production, the requesting party may move for an order compelling a further response if the party deems the responding party’s objections are too general or lack merit or its substantive responses are inadequate, incomplete or evasive. (Code Civ. Proc., § 2031.310, subd. (a)(1)-(3).)

The propounding party must first demonstrate good cause for the discovery sought. (Code Civ. Proc., § 2031.310, subd. (b)(1).) To satisfy that burden, the moving party must make “a fact-specific showing of relevance.” (Glenfeld Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Discovery is allowed for any matters not privileged that are either relevant to the subject matter involved in the action or reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Information is relevant to the subject matter if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) “Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Ibid.) Courts liberally construe the relevance standard and any doubts as to whether a request seeks information within the scope of discovery are generally resolved in favor of discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)

If good cause is established, the burden shifts to the responding party to justify any objections and responses. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

1. RPD Nos. 5 and 7

RPD No. 5 requests “ANY DOCUMENTS evidencing ANY prior vehicle collision in which PAUL ALEXANDER DASILVA was a driver from January 1, 2004 to June 15, 2014.”
RPD No. 7 requests “ANY letters of reference, support, or recommendation submitted by any person or entity to ANY court for the purposes of consideration in connection with any criminal case, whether submitted at the time of pretrial, trial, post-trial or sentencing, or for reduction or dismissal of ANY criminal charges, or expungement of ANY prior convictions, whether submitted by or on behalf of PAUL ALEXANDER DASILVA’s or by or on behalf of any victim, victim representative, law enforcement officer or District Attorney’s representative.”

Defendant provided identical objection-only responses to both requests as follows: “The request is not sufficiently specific and/or reasonably particularized as required by Code of Civil Procedure section 2031.020, subdivision (b). The request is overly broad in time and scope. It is vague and ambiguous as to time. The request objectionably is compound. The request is objectionable to the extent it seeks production of documents available equally to propounding party via subpoena. As such, the request is unduly burdensome, oppressive, and harassing. To the extent the request seeks production of items subject to attorney-client privilege and/or attorney work product protection, it is objectionable.”

On the subject of good cause, Plaintiff argues that the documents sought are relevant because Defendant’s driving history is at issue in the case and may reflect knowledge of the risks of dangerous driving and his mindset toward the same. Plaintiff’s position is well-taken. Plaintiff’s cause of action against Defendant is predicated upon negligent and reckless driving. She specifically alleges DaSilva Dairy Farms, LP and DaSilva Dairy Management, Inc. negligently entrusted Defendant with the operation of the vehicle he was driving at the time of the accident, observing he had a negative driving history (e.g., DUIs, reckless driving, etc.), and seeks an award of punitive damages based on the defendants willfully and consciously disregarding the safety of others. (FAC, ¶¶ 29, 30, 33, 37.) Therefore, Defendant’s driving history is relevant to this case. RPD Nos. 5 and 7 are clearly aimed at obtaining information about Defendant’s driving history to substantiate the theories alleged in the FAC. Good cause thus exists as to RPD Nos. 5 and 7. The burden therefore shifts to Defendant to justify its objections.

With respect to RPD No. 5, Defendant does not engage in any meaningful effort to substantiate his objections. In primary part, he just restates some of the objections in a conclusory manner. Given the lack of justification, the objections are overruled with the exception of the attorney-client privilege and work product objections which are preserved (see Best Products, Inc. v. Superior Court, supra, 119 Cal.App.4th at pp. 1188-1189). As such, a further response is warranted.

Turning to RPD No. 7, Defendant does not attempt to justify his objections. Rather, he merely states the request should not be deemed at issue because he already produced all responsive documents. His written response to this request, however, consisted solely of objections; he did not serve a verified statement of compliance. As such, the request is at issue, the objections are overruled, and a further response is warranted.

2. RPD Nos. 11, 13, 14, 15, 16 and 17

RPD Nos. 11, 13, 14, 15, 16, and 17 request “ANY DOCUMENTS evidencing the executives, partners, members, shareholders, or other owners of any type of” various companies, particularly DaSilva Dairy Farms LLC, Da Silva Dairy Management, Inc., DaSilva Bros Dairy, Joe DaSilva Dairy, DaSilva Dairy, and San Joaquin Dairy Service. Defendant objected to these requests as invading his right to privacy, lacking particularity under Code of Civil Procedure section 2031.020, overbroad, violates the attorney-client privilege and attorney work product doctrine, and improperly seeks corporate documents from him personally as opposed to the entities.

On the issue of good cause, Plaintiff argues the information sought is needed to understand Defendant’s role in the family businesses. She elaborates in her reply brief that the FAC alleges Defendant was acting in the course and scope of his employment at the time of the incident and his employment status and connection to subject companies is relevant to issues of liability.

One of the companies Plaintiff is seeking information about is a named defendant in this case, namely DaSilva Dairy Management, Inc. (RPD No. 13). Since the scope of liability is at issue in this case relative to that entity, good cause exists information sought by RPD No. 13. In contrast, Plaintiff does not adequately explain how knowing the corporate leadership of the non-defendant entitles is relevant under applicable standards. Thus, good cause has not been established as to RPD Nos. 11, 14, 15, 16, and 17.

Even assuming good cause exists as to all of the subject requests, the Court finds Defendant’s overbreadth objection is meritorious. These requests are not limited by time or scope, and consequently could include an expanse of documents that would not be relevant to simply ascertaining who presently own and operates the businesses or who owned and operated them at the time of the accident. The requests are not narrowly tailored and would necessarily encompass documents and information far exceeding Plaintiff’s articulated purpose for the requests and the permissible scope of discovery.

For these reasons, Plaintiff is not entitled to further responses as to RPD Nos. 11, 13, 14, 15, 16 and 17.

3. RPD Nos. 19 and 21

RPD Nos. 19 and 21 both seek documents regarding Defendant’s vehicles. RPD No. 19 seeks “the invoices for payment of your insurance coverage for the Dodge Ram from January 1, 2004, through January 1, 2015.” (Plaintiff’s Separate Statement, p. 5:2-3.) Defendant objected on several grounds and also provided the following substantive response: “Without waiting these or any other objections privileges, or protections, responding party will comply with the request. (See DaSilva 50-54.) Despite a diligent search and reasonable inquiry, responsive party does not have any additional responsive documents.” RPD No. 21 seeks any documents reflecting Defendant’s ownership of any vehicle other than the Dodge Ram since January 1, 2014. Defendant objected on the ground of lack of particularity, and further provided a substantive answer that is materially indistinguishable from his response to RPD No. 19.

Plaintiff does not attempt to establish good cause for the discovery sought. Nor does she identify any particular improprieties with Defendant’s written responses. Instead, she merely expresses dissatisfaction with Defendant’s production, stating he produced few documents. Furthermore, relative to RPD No. 19, Plaintiff complains Defendant redacted payment and premium amounts for his insurance. It is not readily apparent how the redacted information could possibly be pertinent to this case, even under liberal discovery standards, and Plaintiff again does not argue the written responses to RPD Nos. 19 and 21 are improper in any respect. Her motion to compel further responses as to these requests is therefore unsubstantiated.

4. Conclusion

The motion to compel is DENIED as to RPD Nos. 11, 13-17, 19, and 21, and GRANTED as to RPD Nos. 5 and 7. Defendant shall serve verified, code-compliant further responses to RPD Nos. 5 and 7, without objections (except for the attorney-client privilege and work product doctrine which is preserved as to RPD No. 5), within 20 calendar days of this order.

C. Monetary Sanctions

Defendant correctly noted in his opposition that Plaintiff did not request an award of sanctions in connection with her motion. That assertion prompted Plaintiff to address sanctions in her reply brief, wherein she suggests she is entitled to an award of monetary sanctions because Code of Civil Procedure section 2031.310, subdivision (h) provides the court “shall” award sanctions against a party or attorney who unsuccessfully opposes a motion to compel a further response to a document demand unless the court determines the one subject to the sanction was substantially justified or the imposition of a sanction would be unjust.

Plaintiff’s position is misplaced. Aside from the fact she only prevailed in minimal part on her motion, a court may not award discovery sanctions absent proper notice. Code Civil Procedure section 2023.040 mandates that a request for sanctions be noticed and the notice of motion “identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” Such notice must also “be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” Plaintiff did not comply with these requirements. As such, her belated and unsubstantiated request for sanctions is DENIED.