DEBRA MARKS ET AL VS LAURIE GOUETT ET AL

Tentative Rulings

Case Number: BC524946    Hearing Date: May 25, 2021    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

I. BACKGROUND

On October 27, 2011, Plaintiff Debra Marks (“Plaintiff”), who was an employee of the Lien Claimant Verizon Corporate Services Corp. (“Lien Claimant”), was involved in a car accident while being transported by Defendant ABCDE Transportation to a medical appointment in connection with an ongoing worker’s compensation claim. The car accident exacerbated Plaintiff’s prior injuries for which she was pursuing the worker’s compensation claim and caused a new injury to her lower back. Thereafter, on October 22, 2013, Plaintiff filed her complaint. From the date of the car crash and through 2020, Lien Claimant continued to provide workers’s compensation benefits to Plaintiff. (Turchin Decl. ¶ 12, Exh. I.)

Lien Claimant filed this instant motion on April 09. 2021 seeking subrogation recovery from Plaintiff’s settlement proceeds along with an amended notice of first lien that corrects the name of the lien claimant Verizon Corporate Services Corp. Thereafter, on April 20, 2021, Plaintiff filed her opposition. Subsequently, on April 28, 2021, Lien Claimant filed its reply, and it concurrently filed a second amended notice of first lien that corrects the identity of the Lien Claimant to National Union Fire Insurance Company of Pittsburgh, PA. Even though Plaintiff’s opposition papers were served on Lien Claimant’s former counsel, Lien Claimant’s current counsel was not prejudiced by the mistake.

II. LEGAL STANDARD

“A workers’ compensation carrier is authorized to attempt recovery of benefits paid either through the maintenance of an independent action (Labor Code § 3852), intervention in the employee’s action (Labor Code § 3853), or assertion of lien rights in the employee’s recovery (Lab. Code, § 3856(b).)”  (Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1015, fn. 7.) 

III. DISCUSSION

a. Whether the Lien Claimant has Standing.

As a preliminary matter, the Court must determine whether the Lien Claimant has standing to assert a right to a lien.

Plaintiff argues that the Lien Claimant lacks standing because Verizon Communications, Inc, which was the entity that filed a complaint in intervention on February 10, 2015, is not legally able to conduct business or employ workers in California. (Opposition at pg. 4-5.) Therefore, Plaintiff reasons that it cannot make use of the California courts. (Id.) In response, Lien Claimant filed a second amended notice of first lien that corrects the identity of the Lien Claimant to be National Union Fire Insurance Company of Pittsburgh, PA as the entity that administered the underlying workers’ compensation claim through its third party administrator, Sedgwick CMS. Under this second amended notice, the Lien Claimant would still be considered Plaintiff’s employer because an employer includes the insurer for purposes of subrogation recovery of workers’ compensation benefits (Labor Code § 3850(b).)

Accordingly, the Court finds that Lien Claimant has standing.

b. Whether Lien Claimant’s Dismissals with Prejudice of Defendants Bars It From Enforcing Its Lien Under the Doctrine of Res Judicata.

Plaintiff argues that the doctrine of res judicata should bar Lien Claimant from enforcing its lien by dismissing several defendants with prejudice after it had exercised its subrogation rights. (Opposition at pp. 12-13.) Plaintiff reasons that Lien Claimant had no direct right against Plaintiff. (Id.) However, this argument is unconvincing because Labor Code § 3852 allows for multiple ways to enforce a lien, including through intervention or by notice of first lien. Plaintiff has not cited any authority that choosing one option of another precludes a lien claimant from pursuing another method of subrogation recovery.

c. Whether Lien Claimant Has Tortuously or Negligently Interfered With Plaintiff’s Recovery.

Plaintiff claims that her civil claims were undermined by the Lien Claimant when it produced sub-rosa video of her to defense counsel and thus the Lien Claimant comes to the Court with unclean hands. (Opposition at pp. 5-7, 9-10.) The Court is not persuaded by this argument because such video was not private, and it was requested through a subpoena. (Fairchild Aerospace v WCAB (Kyles) (1999) 64 Cal. 13 Comp. Cases 1497; MIA Com Phi v. WCAB (1998) 65 Cal.App.4th 1020; Reply, Turchin Decl. ¶ 3, Exh. A.)

d. Whether Lien Claimant is Estopped By Its Conduct From Enforcing Its Lien.

Plaintiff also argues that it justifiably relied on Lien Claimant to enforce its subrogation rights on its own against the defendants and for this reason she prepared her case without concern for incorporating the Lien Claimant’s interest. (Opposition at pp. 10-11.) Plaintiff reasons that she is being prejudiced now by the Lien Claimant in its attempt to enforce its lien on her. (Opposition at pg. 11.) However, considering that the Lien Claimant reserved its rights against Plaintiff, Plaintiff has not been prejudiced by Lien Claimant in its attempts to enforce its lien. Furthermore, the purpose of subrogation is to prevent instances of double recovery. Thus, the Court finds that Lien Claimant is not estopped from enforcing its lien on Plaintiff.

e. Whether Lien Claimant is Entitled to Full Reimbursement of All Monies Paid Out In Connection With Her Worker’s Compensation Claim.

Pursuant to Labor Code § 3852, it states:

The claim of an employee, including, but not limited to, any peace officer or firefighter, for compensation does not affect his or her claim or right of action for all damages proximately resulting from the injury or death against any person other than the employer. Any employer who pays, or becomes obligated to pay compensation, or who pays, or becomes obligated to pay salary in lieu of compensation, or who pays or becomes obligated to pay an amount to the Department of Industrial Relations pursuant to Section 4706.5, may likewise make a claim or bring an action against the third person. In the latter event the employer may recover in the same suit, in addition to the total amount of compensation, damages for which he or she was liable including all salary, wage, pension, or other emolument paid to the employee or to his or her dependents. The respective rights against the third person of the heirs of an employee claiming under Section 377.60 of the Code of Civil Procedure, and an employer claiming pursuant to this section, shall be determined by the court.

Thus, when an employee recovers from a third party due to an injury sustained during the scope and course of their employment, an employer is permitted to seek reimbursement for compensation already paid to the employee through a workers’ compensation claim. (Id.; C.J.L. 11 Construction, Inc. v. Universal Plumbing (1993) 18 Cal. App. 4th 376, 383-384.) Where the employer was not negligent in causing the employee’s injury, the subrogation lien is payable in full. (Kemerer v. Challenge Milk Co. (1980) 105 Cal.App.3d 334; see also Jarvis v. So. Pacific Transp. Co. (1983) 142 Cal.App.3d 246.)

Here, based on the evidence presented, Plaintiff has received treatment through her workers’ compensation proceedings for injuries that she sustained in the October 27, 2012 car accident. This amounts to $287,375.19. (Turchin Decl.12, Exh. I.) Plaintiff’s injuries from this incident included exasperations of prior injuries as well as a new injury to her lower back, which is supported by various medical reports that were submitted during Plaintiff’s worker’s compensation claim. (Motion, Turchin Decl. ¶¶6-11, Exhs. C-H.) Therefore, Lien Claimant is entitled to recovery for all benefits paid to Plaintiff in connection with the car accident. (Duncan v. Wal-Mart Stores. Inc., (2017) 18 Cal. App. 5th 460, 471.) Moreover, there is no indication that Plaintiff’s employer was negligent in any regard. Thus, the entire amount sought by Lien Claimant is reasonable.

Accordingly, the Court finds that the Lien Claimant is entitled to full reimbursement of its subrogation lien.

IV. CONCLUSION

The Court GRANTS Lien Claimant’s motion to enforce its subrogation lien in the amount of $287,375.19.

Defendant Verizon Communications to give notice.

DATED: May 25, 2021

_____________________

Bernie C. LaForteza

Judge of the Superior Court

Case Number: BC524946    Hearing Date: November 10, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

I. BACKGROUND

Debbie Marks (Plaintiff) filed a complaint against Laurie Gouett (Gouett), ABCDE Transportation, LLC (ABCDE), and Does 1 through 25 on October 22, 2013, alleging a single claim for negligence. Plaintiff later amended the complaint to name Brooke Gouett (B. Gouett), Neil Gouett (N. Gouett), Version Communications (Version), Blue Shield of California (Blue Shield), the Estate of Chadwick F. Smith (Estate), and Trade Center Outpatient Surgery Center (Trade Center) as Does 1 through 6. On December 23, 2019, Plaintiff filed a motion for leave to file a first amended complaint. This motion is still pending.

On March 4, 2020, Plaintiff filed this application for determination of good faith settlement pursuant to Code of Civil Procedure section 877.6(a)(2). Plaintiff requests an order confirming the good faith settlement of the subrogation claims with Blue Shield and Verizon.

II. LEGAL STANDARD

Code of Civil Procedure section 877.6, subdivision (a)(1), provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff . . . and one or more alleged tortfeasors or co-obligors . . . .” “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc. § 877.6, subd. (c).) Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. (Code Civ. Proc. § 877, subd. (a).)

“The party asserting the lack of good faith shall have the burden of proof on that issue.” (Code Civ. Proc. § 877.6, subd. (d).)

In City of Grand View Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination:

This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court. At the time of filing in many cases, the moving party does not know if a contest will develop. If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients’ resources. . . . That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party.

(192 Cal.App.3d 1251, 1260-1261 (citation omitted).)

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” (Tech-Bilt, Inc., supra, 38 Cal.3d at p. 499.) “‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ [Citation.]” (Ibid.)

“The party asserting the lack of good faith, who has the burden of proof on that issue (§ 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” (Id. at pp. 499-500.)

“[A] court not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.)

III. DISCUSSION

Here, Plaintiff asserts the existence of a good faith settlement of the subrogation claims between herself and Blue Shield has been reached for $30,000. The original amount of the claim was $279,068. Plaintiff also states she has reached a good faith settlement of the subrogation claims with Verizon agreeing to pay Verizon for the full amount of $1,618.94 sought. Attached as exhibits are Blue Shield’s subrogation claims for $279,068 and Verizon’s for $1,618.92 and the offer to compromise. Exhibit 1 is a consolidated statement of benefits showing that, on January 6, 2020, Plaintiff’s total balance due to Blue Shield was $279,068.22. (Exhibit 1.) The consolidated statement of benefits also shows Plaintiff’s total balance due on this same date to Verizon was $1,618.94. (Ibid.)

Exhibit 2 provides the terms of the settlement. The August 29, 2019 offer to compromise provides that Blue Shield and Equian, Blue Shield’s subrogation vendor, will accept $30,000 in satisfaction of the amount due from Plaintiff. This amount will be paid from Plaintiff’s $790,000 recovery, but Blue Shield retains its right to be reimbursed from additional sources if they become available.

None of the non-settling parties have filed oppositions to this application for determination. Plaintiff’s total recovery is $790,000 and the Blue Shield policy limit is $100,000. The subrogation claim for $279,068 is much greater than the $30,000 settlement offer, but it is also much greater than the $100,000 policy limit. Plaintiff’s total medical liens amount to $736,870.40. Blue Shield’s subrogation claim for $279,068 is by far the largest lien. The other liens range from $765 to $100,500. Blue Shield’s claims make up approximately 34 percent of the total. There is $437,247.16 available to satisfy the liens. $30,000 is only 6.8 percent of this amount available.

Blue Shield’s claim to Plaintiff’s settlement funds is by far the largest of the subrogation claims. By agreeing to accept only $30,000, rather than the full $279,068, for its claims, Blue Shield is leaving plenty of settlement funds available to Plaintiff to pay the other subrogation claims out of the $437,247.16 available. The fact that Blue Shield is amenable to accepting far less than its claims are worth demonstrates that this settlement agreement was made in good faith.

The Verizon settlement offer is actually a demand that Plaintiff agree to pay to full amount of Verizon’s claim. Verizon’s claim is for only $1,618.94 and represents only a small portion of the subrogation claims made against Plaintiff’s settlement funds. Paying Verizon $1,618.94 from the $437,247.16 available will leave settlement funds available to pay other subrogation claims. The Court finds this agreement was made in good faith as well.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s application for determination of a good faith settlement is GRANTED.

Plaintiff is ordered to give notice of the Court’s ruling.

DATED: November 10, 2020 

_____________________ 

Hon. Theresa M. Traber 

Judge of the Superior Court 

Case Number: BC524946    Hearing Date: September 25, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

I. BACKGROUND

Debbie Marks (Plaintiff) filed a complaint against Laurie Gouett (Gouett), ABCDE Transportation, LLC (ABCDE), and Does 1 through 25 on October 22, 2013, alleging a single claim for negligence. Plaintiff later amended the complaint to name Brooke Gouett (B. Gouett), Neil Gouett (N. Gouett), Version Communications (Version), Blue Shield of California (Blue Shield), the Estate of Chadwick F. Smith (Estate), and Trade Center Outpatient Surgery Center (Trade Center) as Does 1 through 6. On December 23, 2019, Plaintiff filed a motion for leave to file a first amended complaint. This motion is still pending.

On March 4, 2020, Plaintiff filed this application for determination of good faith settlement pursuant to Code of Civil Procedure section 877.6(a)(2). Plaintiff requests an order confirming the good faith settlement of the subrogation claims with Blue Shield and Verizon.

II. LEGAL STANDARD

Code of Civil Procedure section 877.6, subdivision (a)(1), provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff . . . and one or more alleged tortfeasors or co-obligors . . . .” “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc. § 877.6, subd. (c).) Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. (Code Civ. Proc. § 877, subd. (a).)

“The party asserting the lack of good faith shall have the burden of proof on that issue.” (Code Civ. Proc. § 877.6, subd. (d).)

In City of Grand View Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination:

This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court. At the time of filing in many cases, the moving party does not know if a contest will develop. If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients’ resources. . . . That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party.

(192 Cal.App.3d 1251, 1260-1261 (citation omitted).)

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” (Tech-Bilt, Inc., supra, 38 Cal.3d at p. 499.) “‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ [Citation.]” (Ibid.)

“The party asserting the lack of good faith, who has the burden of proof on that issue (§ 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” (Id. at pp. 499-500.)

“[A] court not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.)

III. DISCUSSION

Here, Plaintiff states a good faith settlement of the subrogation claims between herself and Blue Shield has been reached for $30,000. The original amount of the claim was $279,068. Plaintiff also states she has reached a good faith settlement of the subrogation claims with Verizon for $1,618.94. Attached as exhibits are Blue Shield’s subrogation claims for $279,068 and Verizon’s for $1,618.92 and the offer to compromise. Exhibit 1 is a consolidated statement of benefits showing that, on January 6, 2020, Plaintiff’s total balance due to Blue Shield was $279,068.22. (Exhibit 1.) The consolidated statement of benefits also shows Plaintiff’s total balance due on this same date to Verizon was $1,618.94. (Ibid.)

Exhibit 2 provides the terms of the settlement. The August 29, 2019 offer to compromise provides that Blue Shield and Equian, Blue Shield’s subrogation vendor, will accept $30,000 in satisfaction of Plaintiff’s amount due. This amount will be paid from Plaintiff’s $790,000 recovery, but Blue Shield retains its right to be reimbursed from additional sources if they become available.

None of the non-settling parties have filed oppositions to this application for determination. Plaintiff’s total recovery is $790,000 and the Blue Shield policy limit is $100,000. The subrogation claim for $279,068 is much greater than the $30,000 settlement offer, but it is also much greater than the $100,000 policy limit. While the alleged settlement offer from Verizon is for the full $1,618.94, the compromise letter does not make any mention of Verizon’s subrogation claim. It only involves Blue Shield’s subrogation claim.

While Plaintiff mentions some of the Tech-Bilt factors, insufficient evidence is presented to allow the Court to assess whether the parties have reached a good faith settlement. The consolidated statement of benefits and offer to compromise do not show Blue Shield and Verizon’s proportionate liability, their potential liability to other tortfeasors, or their financial conditions. Moreover, the offer to compromise does not even mention Verizon’s acceptance of $1,618.94, but rather, is solely limited to Blue Shield.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s application for determination of a good faith settlement is DENIED, without prejudice to the presentation of supplemental evidence and/or argument in support of the motion.

DATED: September 25, 2020 

_____________________ 

Hon. Theresa M. Traber 

Judge of the Superior Court 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

I. BACKGROUND

Debbie Marks (Plaintiff) filed a complaint against Laurie Gouett (Gouett), ABCDE Transportation, LLC (ABCDE), and Does 1 through 25 on October 22, 2013, alleging a single claim for negligence. Plaintiff later amended the complaint to name Brooke Gouett (B. Gouett), Neil Gouett (N. Gouett), Version Communications (Version), Blue Shield of California (Blue Shield), the Estate of Chadwick F. Smith (Estate), and Trade Center Outpatient Surgery Center (Trade Center) as Does 1 through 6. On December 23, 2019, Plaintiff filed a motion for leave to file a first amended complaint. This motion is still pending.

On January 30, 2020, Trade Center filed this motion for an order compelling Plaintiff to provide further responses to its Requests for Production of Documents (RFPs) numbers 1 through 6 on the grounds that Plaintiff’s responses are inadequate and Plaintiff refuses to produce additional responses absent a court order. Trade Center also requests $1,860 in monetary sanctions against Plaintiff and her counsel.

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II. LEGAL STANDARDS & DISCUSSION

A. Meet & Confer Requirement

A motion to compel further responses to a request for production must be accompanied by a meet and confer declaration in compliance with Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2031.310(b)(2).) This declaration shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.) Trade Center has satisfied this requirement. (Shabel declaration.)

B. Timeliness

California Civil Procedure section 2031.310(c) provides:

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.

Failure to make a motion within the specified period constitutes waiver of the right to compel a further response. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The time period is mandatory and jurisdictional in the sense that it renders the Court without authority to rule on motions to compel other than to deny them. (Ibid.)

Here, Trade Center propounded RFPs on Plaintiff on October 30, 2019. The RFPs were served via mail, therefore, Plaintiff’s responses were due by December 4, 2020. Plaintiff failed to serve any responses. In response to Trade Center’s December 9, 2019 letter inquiring about Plaintiff’s responses, Plaintiff’s counsel denied ever receiving the RFPs. Trade Center’s counsel then immediately faxed and mailed Plaintiff’s counsel a second copy of the RFPs, along with the fax confirmation report from October 30, 2019.

Plaintiff’s counsel sent a copy of Plaintiff’s responses on December 11, 2019, along with a letter stating they would be served by January 10, 2020 with a verification. The responses included objections, as to which Trade Center’s counsel informed Plaintiff’s counsel had already been waived.

Forty-five days, plus five days for service by mail, from January 10, 2020 was March 2, 2020. This motion to compel was filed on January 30, 2020. This motion is timely.

C. Motion to Compel Further

Code of Civil Procedure section 2031.310(a) provides:

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.

Code of Civil Procedure section 2031.310(b)(1) requires the motion to state specific facts justifying production of the documents. These specific facts must be in declaration. (Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 224 (directing trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production).) “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216, 224 (identifying manner for establishing good cause under Calcor).)

Here, the RFPs contain seven requests seeking documents relating to the settlement of Plaintiff’s personal injury claims, submission of Plaintiff’s medical bills to the insurance carrier that settled those claims, and resolution of the lien claims of other medical providers who provided Plaintiff with medical services. Trade Center states it has no other means of obtaining the information contained in the requested documents and will be unable to prepare for trial without them.

Plaintiff opposes this motion on the grounds that she has not refused to produce the requested documents, rather she offered their production electronically or by allowing Trade Center to make copies of them because they are voluminous. Plaintiff shows that she produced the requested documents in her possession when her responses were served and agreed to make continual productions as she received more documents. The only objections Plaintiff made to Trade Center’s RFPs were to requests numbered 5 and 6. These objections were included in her tentative responses sent to Trade Center on December 11, 2019 but were withdrawn prior to serving the verified responses on January 8, 2020.

Trade Center counters that Plaintiff served unverified supplemental discovery responses only after this motion was filed. However, these responses included irrelevant documents and failed to produce all relevant documents in Plaintiff’s possession.

The Court finds Trade Center’s motion persuasive only as to the unverified, supplemental responses Plaintiff served after this motion was filed. Plaintiff did not refuse to produce all documents requested as Trade Center originally claimed.  Accordingly, to the extent that Plaintiff’s production of documents remains incomplete, the Court will order a further production.

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D. Monetary Sanctions

A court ruling on a request for discovery sanctions shall impose a monetary sanction 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(h).)

Here, both parties seek monetary sanctions with Trade Center requesting $1,860 asserting that Plaintiff forced it to file the current motion to compel and Plaintiff seeking $2,250 in sanctions alleging that Trade Center filed its motion in violation of an agreement to extend Plaintiff’s response time, failed to schedule an informal discovery conference, and through related alleged misconduct.  While it has granted Trade Center’s motion in part, the Court cannot find that Plaintiff acted without substantial justification in responding to Trade Center’s discovery. Similarly, although Trade Center failed to schedule an IDC and abruptly filed its motion to compel, the Court did grant its motion in part based on an assessment of Plaintiff’s discovery response and, thus, denies Plaintiff’s sanctions request.  

E. CONCLUSION

For the foregoing reasons, Trade Center’s motion for an order compelling Plaintiff’s further responses to Trade Center’s Requests for Production, Set One, is GRANTED but only as to Plaintiff’s unverified, supplemental responses served after January 30, 2020.

Both parties’ requests for discovery sanctions are DENIED.

Trade Center is ordered to give notice of the Court’s ruling.

DATED: September 25, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court