JONATHAN POULDAR VS STATE FARM AUTOMOBILE INSURANCE COMPANY;

Tentative Rulings

Case Number: *******0676 Hearing Date: March 13, 2023 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

This case arises out of two motor vehicle accidents that occurred in 2020, one on May 18, 2020 and the other on October 29, 2020. Jonathan Pouldar (“Petitioner”) carried an insurance policy with State Farm Mutual Insurance Company (“Respondent”) with coverage for accidents involving underinsured/uninsured motorists. Petitioner presented an underinsured motorist claim to Defendant for the May 18, 2020, accident and an uninsured motorist claim for the October 29, 2020, accident. Due to the fact that both claims are similar in nature and involve the same parties, Respondent elected to litigate the May 2020 Underinsured Motorist claim concurrently with the October 2020 Uninsured Motorist action.

On January 12, 2023, Petitioner filed an unlimited uninsured motorist claim for the purpose of establishing jurisdiction over the uninsured motorist arbitration matter for discovery disputes.

Petitioner, at this time, moves for the Court to order Respondent to comply with Respondent’s written statement that it would produce documents in response to Document Inspection Demands, Set No. 1, Request for Production (“RFP”) Nos. 1, 2, 4-6, 13, 15, 17-18, 29-31 and to produce a privilege log in connection with Respondent’s responses to the RFPs.

2. Motion to Compel Compliance with Document Production Including Privilege Log

a. Meet and Confer

Petitioner contends that no meet and confer declaration is required for the instant motion for compelling compliance pursuant to Code of Civil Procedure section 2031.320, but nevertheless, he made meet and confer efforts prior to filing this motion. Petitioner’s counsel concedes, however, that on September 13, 2022, Petitioner’s counsel intended but failed to send a meet and confer letter to opposing counsel due to Petitioner’s counsel’s medical issues. Petitioner also argues that on October 26, 2022, Petitioner’s counsel met and conferred with Respondent’s counsel concerning Respondent’s privilege log and that Respondent provided an extension to file a motion to compel further responses.

In opposition, Respondent argues that Petitioner never met and conferred regarding the issue of Respondent’s document production, which was also not discussed at the Informal Discovery Conference. Respondent contends that it was unaware of Petitioner’s issue with the document production until the filing of this instant motion.

In reply, Petitioner again argues that pursuant to Code of Civil Procedure section 2031.320, no meet and confer effort is required for a motion to compel compliance.

The Court finds that there is no meet and confer requirement prior to filing a motion to compel compliance pursuant to Code of Civil Procedure section 2031.320.[1]

b. Motion

As to the RFPs, Petitioner contends that this motion is made pursuant to Code of Civil Procedure section 2031.320. This section provides, in part, “If a party filing a response to a demand for inspection, copying, testing, or sampling … thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.” Petitioner contends that Respondent has failed, without justification, to comply with its written representation that it would produce for inspection certain documents. Specifically, Petitioner argues that Respondent failed to produce documents identifying the specific request number to which they are responsive. According to Petitioner, this violates Code of Civil Procedure section 2031.280(a), which states, “[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.” Petitioner argues that this motion was timely made because there are no timing restrictions for bringing a motion to compel compliance.

As to the privilege logs, Petitioner contends that Respondent was required to provide a privilege log when asserting privileges in response to a document production request. Petitioner argues that the 45-day deadline to file a motion to compel under Code of Civil Procedure 2031.310(c) does not apply to compelling the other party to provide a privilege log because a party is not required to serve a privilege log with his responses to discovery. Petitioner also argues that the parties agreed to extend the motion to compel further deadline, but Petitioner’s counsel failed to memorialize the agreement in writing due to medical issues. Since Petitioner argues that he is not filing a motion to compel further responses, no separate statement was required.

In opposition, Respondent argues that the 45-day deadline applies to all discovery responses, including privilege logs. Respondent cites to Code of Civil Procedure 2031.240(c)(1) which states: “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” Respondent argues that a privilege log should be provided only if necessary, but otherwise it is part of the response. Respondent contends that the purpose of a privilege log is to allow the Court an opportunity to review the claim of privilege in order to sustain or overrule the objection in response to a motion to compel, and that the purpose of the 45-day deadline would be destroyed if it did not apply to privilege logs. Alternatively, Respondent argues that it need not provide a privilege log because it provided code-compliant responses and privilege logs for requests 13 and 30. Additionally, Respondent contends that the parties did not come to an oral agreement to extend Petitioner’s deadline to file a motion to compel, and that if one existed, it must be memorialized in writing pursuant to Code of Civil Procedure section 2031.310(c), which provides, “Unless notice of this motion is given within 45 days of the service of the response, or any supplemental 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.” (Emphasis added.)

In reply, Petitioner contends that a privilege log is akin to document production and not a response. Petitioner argues that although the response of providing non-privileged documents may not be code-compliant, Petitioner requires a privilege log to assess whether the agreement to compliance of documents produced is in fact, met. Petitioner states that only requests 13 and 30 outlined documents withheld and not produced, but the remaining privilege objections did not reference any withheld documents. Petitioner argues this is noncompliant with the statute and a privilege log is required.

The parties contest the timeliness of the motion to compel. There are two relevant statutes that concern motions to compel in the context of document requests: (1) Code of Civil Procedure section 2031.310 deals with motions to compel a further response from the responding party and requires the propounding party to file a motion within 45 days of service of the response, and (2) section 2031.320 deals with motions to compel compliance with an obligation to produce a document and imposes no deadline. The Court finds that Petitioner’s requests — compelling compliance with RFPs and producing privilege logs — fall into two separate categories, section 2031.320 and section 2031.310, respectively.

Here, the privilege logs fall under the motion to compel a further response category because Respondent’s failure to produce privilege logs was readily apparent at the time the discovery responses were received. Section 2031.310 permits a party to bring a motion to compel when: (1) the responding party’s response is incomplete, (2) a claim that the responding party cannot comply is defective, or (3) an objection is defective. (Code Civ. Proc., 2031.310, subd. (a).) Section 2031.240, dealing with responding parties’ objections to demands, states that “objections” include objections “based on a claim of privilege.” (Code Civ. Proc., 2031.240, subd. (b)(2).) When read together, it is apparent that if a demanding party believes that the responding party has asserted an unjustified claim of privilege, that assertion is to be challenged pursuant to section 2031.310. Thus, Petitioner should have brought a motion within 45 days of receiving Respondent’s response unless there was a written agreement extending the deadline. Although Petitioner argues that such an agreement exists, Petitioner fails to provide any evidence of a written agreement. Indeed, Petitioner’s counsel concedes that he failed to memorialize any agreement. Thus, Petitioner’s motion as to the privilege logs is untimely.[2] Accordingly, the Court denies Petitioner’s request to compel a privilege log.

On the other hand, section 2031.320 deals with situations where the responding party files a response to an inspection demand and then fails to permit the inspection. It is logical that such motions do not require a 45-day deadline for filing since the issue would not become apparent until the responding party fails to abide by its statement of compliance as indicated in the response. Here, Petitioner’s motion to compel compliance with document production as to the RFPs only concern Respondent’s failure to “to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance” under section 2031.320. Thus, there was no 45-day deadline and Petitioner’s motion was timely filed.[3]

As to Petitioner’s motion to compel the document production, the Court finds that Petitioner did not comply with the statutory requirements with regard to filing a separate statement. Although Petitioner contends that a separate statement was not required, the Court finds otherwise. A separate statement is not required only where “no response has been provided to the request for discovery”; or “a court has allowed the moving party to submit—in place of a separate statement—a concise outline of the discovery request and each response in dispute.” (Cal. Rules. Court, rule 3.1345(b) subs. (1)-(2).) Here, Respondent has provided responses and Petitioner’s motion concerns Respondent’s non-compliance with the statute, particularly in failing to identify the documents with the specific request number. Although the Court did not previously allow Petitioner to submit a concise outline of the discovery request in place of a separate statement, the Court in its discretion, will consider the merits of the motion and consider the procedural history and facts portion as the concise outline which discusses the document production demand and Respondent’s responses.

Considering the merits of Petitioner’s claim, the Court finds there to be sufficient grounds in granting his motion to compel compliance to RFPs. Here, Respondent served a statement of compliance in response to RFP 1, 2, 4-6, 13, 15, 17-18, 29 and 30-31, by stating in similar variations: “After a reasonable and diligent search, Respondent will comply by producing all responsive documents in their possession, custody and control…” (Vafa Decl., 6; Exh. 3A.) Petitioner sufficiently demonstrates Respondent’s noncompliance by showing that Respondent’s production is inadequately organized, and the documents do not properly identify the RFPs to which they correspond. Respondent’s failure to properly designate the documents falls within a reasonable reading of section 2031.320. Section 2031.320 can be understood to allow a propounding party to compel a responding party to comply with its statement of compliance when the responding party provides documents that do not properly allow the propounding party to understand which documents pertain to which requests for production. Here, Respondent stated that it would produce responsive documents as to specific RFPs, but it failed to properly designate those documents. Thus, Respondent fails to permit the proper inspection of those documents as specified in its original responses.

Accordingly, the Court GRANTS Petitioner’s request to compel Respondent to comply with document production as to RFP 1, 2, 4-6, 13, 15, 17-18, 29, and 30-31.

d. Monetary Sanctions

Petitioner requests monetary sanctions for Respondent’s failure to comply with discovery under Code of Civil Procedure sections 2023.010, 2023.030 , and 2031.320(b). Petitioner contends that there is no excuse or justification for Respondent’s failures. Petitioner requests sanctions in the amount of $5,102.17.

In opposition, Respondent contends that its position has merit and is substantially justified and that there has been no misuse or abuse of the discovery process given that Respondent has acted in good faith in attempting to resolve this discovery issue and participated in IDC. Respondent notes that it is not seeking sanctions, attorney fees, or costs.

Code of Civil Procedure section 2031.320(b) provides that subject to exceptions not applicable here, “the 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 compliance with 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.”

The Court finds that Petitioner is entitled to an award of sanctions as s prevailing party. Although Respondent’s arguments regarding the privilege log have merit, Respondent was not substantially justified in failing to produce documents properly in accordance with its statement of compliance. Petitioner states his billable rate as $650 per hour and his staff’s billable rate at $150 per hour. Rather than explaining how the hours were spent in a declaration, Petitioner attaches bills. The Court finds that a reasonable rate for the work done is $350 per hour and that a total of 2.5 hours is reasonable to award for the drafting of the motion and attending the hearing. The Court is taking into account the additional circumstance that Respondent is not seeking fees for prevailing on the motion as to the privilege log.

Thus, the Court awards sanctions in the amount of $875.

e. Certification of Appeal Pursuant to CCP 166.1

Petitioner requests that the Court certify an appeal in the event that the Court disagrees with Petitioner’s application of the law compelling a privilege log or compliance of document production. The request is denied as unwarranted.

Moving Petitioner is ordered to give notice.

PLEASE TAKE NOTICE:

Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.orgwith the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Dated this 13^th day of March, 2023