Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki

34-2022-00317395-CU-PA-GDS: Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki 08/08/2023 Hearing on Motion for Protective Order in Department 53

Defendant Amazon Logistics, Inc.’s (“Amazon”) motion for protective order “regarding Plaintiffs DFP No. 49 and seeking clarification on the scope of the Court’s Order Dated March 16, 2023, and if necessary, for an extension of time to comply with the Court’s Order” is denied.

This action arises from a vehicle collision that occurred on May 21, 2021. Plaintiffs Ruby-Lynn Ragasa Idmilao and Tylor Christopher West allege that their vehicle was rear-ended by a truck driven by Defendant Sharif Davalatberki (“Davalatberki”). Plaintiffs allege Mr. Davalatberki was driving the truck on Defendant Amazon Logistics, Inc.’s (“Amazon”) and Defendant Tojikon, Inc.’s (“Tojikon”) behalf.

At the outset, while Amazon refers to a March 16, 2023, order granting Plaintiffs’ motion to compel, the actual date of the order is March 23, 2023. While Judge Mennemeier issued a tentative ruling for a March 16, 2023, hearing, after the ruling was posted, Judge Mennemeier recused himself pursuant to CCP § 170.1(a)(3)(A). The tentative ruling was vacated and the matter continued to March 23, 2023. This Court issued a tentative ruling for March 23, 2023, which granted Plaintiffs’ motion to compel Amazon’s further responses to Plaintiffs’ requests for production nos. 49-53, 55-57, 60, and 61. The parties appeared for oral argument on March 23, 2023, and the Court affirmed the tentative ruling.

Amazon now seeks a protective order months after the Court granted the motion to compel with respect to request for production no.

49. Specifically, Amazon seeks a protective order limiting the scope of that request which requested all communications between Tojikon and Amazon from October 2020, to present. Amazon argues that the burden in responding to the request without any limitation in scope clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. As set forth below, the motion is in essence an improper motion for reconsideration and must be denied.

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (CCP § 1008(a).)

When the Court granted Plaintiffs’ motion to compel as it related to request no. 49, it noted that Amazon refused to provide a substantive responses and instead interposed objections premised on its contention that it did not employ any driver and that Plaintiffs mischaracterized its relationship with Tojikon, and also on the basis that the request was not limited in time and scope and sought confidential and proprietary information. (3/23/23 Minute Order p. 2.) The Court addressed Amazon’s objections. The Court found that the request “easily [met] the broad

34-2022-00317395-CU-PA-GDS: Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki 08/08/2023 Hearing on Motion for Protective Order in Department 53

definition of relevance in the discovery context”, that Amazon failed to substantiate its objection based on undue burden as it “made no showing in this regard”, and also that Amazon failed to substantiate its confidential and proprietary information objections. The Court ruled that “the objections to the requests on the basis that Plaintiffs mischaracterize the relationship among the parties, that the requests seek irrelevant information, or that the requests are ‘vague, ambiguous, overly broad, unduly burdensome and harassing’ because Amazon did not employ any driver, or operate or control any vehicle involved in the accident must be removed from a further response.” The Court also ordered that the confidential and proprietary information objections “must be removed as well.” (Id. p. 3.)

While Amazon frames its motion as one for a protective order, it is expressly seeking relief on the basis that responding to the request is burdensome. As just noted, the Court already addressed Amazon’s undue burden objection with respect to this very request for production. The Court overruled the objection and ordered it removed from a further response. Plaintiffs’ opposition points out that Amazon nevertheless served a further response to this request which continues to assert the very objections which the Court ordered removed, including undue burden. (Park Decl.

Exh. 4 at pp. 4-5.) Moreover, Amazon purported to limit its response to only the “trip and load at issue in this litigation.” (Id.) Now, Amazon is again before this Court arguing that responding to the subject request imposes an undue burden. Amazon even asks for “clarification” which is essentially asking the Court to modify its prior order. The name placed by Amazon upon its motion is not dispositive. “The name of a motion is not controlling, and, regardless of the name, a motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration under Code of Civil Procedure section 1008.” (Powell v.

County of Orange (2011) 197 Cal. App. 4th 1573, 1577.) This is a motion for reconsideration which is governed by CCP § 1008 which must be denied.

First, the motion is untimely. The motion was filed and served on May 31, 2023, over two months after the Court’s March 23, 2023, order. The March 23, 2023, order which was affirmed after hearing made clear that it was effective immediately and that no formal order or further notice was required. CCP § 1008 “is the exclusive means for modifying, amending or revoking an order. That limitation is expressly jurisdictional.” (California v. Superior Court (1993) 19 Cal.App.4th 485, 490.) “This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final.

No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (CCP § 1008(e).) Here, the motion is untimely as it was not made within 10 days from the challenged order. (CCP § 1008(a).) Nor may Amazon argue that the Court should reconsider its order pursuant to CCP § 1008(c) which permits a court to reconsider a prior order on its own motion based upon a “change of law.” (CCP § 1008(c).) To that end, “any action to reconsider a prior interim order must formally begin with the court on its own motion.” (Le Francois v.

Goel, 35 Cal. 4th 1094, 1108.) “A party may not file a written

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00317395-CU-PA-GDS: Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki 08/08/2023 Hearing on Motion for Protective Order in Department 53

motion to reconsider that has procedural significance if it does not satisfy the requirements of [CCP § 1008]. The court need not rule on any suggestion that it should reconsider a previous ruling and, without more, another party would not be expected to respond to such a suggestion.” (Id.)

Even if it had filed a timely motion for reconsideration, Amazon fails to set forth any new or different facts, circumstances, or law as required for such a motion. Given that the Court has concluded that the instant motion is effectively a motion for reconsideration, Amazon was not only required to demonstrate “new or different facts, circumstances, or law” but also required to provide a satisfactory reason for not presenting the matter earlier. “The party seeking reconsideration must provide not only new or different facts, but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) What Amazon attempts to do is substantiate its undue burden objection (which this Court overruled) by now offering a declaration purporting to show the burden in responding to request no.

49. Amazon offers a declaration from Ryan Sandefur, a Senior Operations Manager with Amazon. Sandefur declares that Tojikon accepted 720 requests for services from Amazon between November 2020, and October 2021. (Sandefur Decl. ¶ 7.) He states that collecting data and documents for all 720 loads requires a search of multiple servers and systems and that a search for data for a single load could take ten minutes or more. (Id. ¶ 12.) Sandefur “anticipate[s] this search would yield thousands of documents unrelated to the Load, much less shipping activity at issue.” (Id. ¶ 11.)

Sandefur’s declaration, is not a new or different fact, circumstance or law which would allow Amazon to seek reconsideration. Rather, it is an attempt to make a stronger showing regarding burden than it did when it opposed the motion to compel. While technically, the declaration from Sandefur might be characterized as "new" only in the sense that Amazon failed to submit it in connection with the underlying motion, it is not new for purposes of CCP § 1008. Again, the party seeking reconsideration must not only set forth new or different facts, circumstances or law, but also must provide “a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Mink, supra, 2 Cal.App.4th at 1342.)

Amazon has not done so here. The time to have provided evidence regarding burden was when it was required to oppose the underlying motion to compel further responses, i.e., responses as to which it raised undue burden objections. There is simply no reason that the instant declaration could not have been provided in connection with the underlying motion. If Amazon was correct that the subject request is burdensome, it has been burdensome since the original time that it was propounded by Plaintiffs.

Nothing has changed. Amazon’s apparent claim that it did not perceive the burden until it was ordered to comply and then undertook a preliminary effort to respond is not a new or different fact or circumstance. Any argument that it was not aware of the burden at the time of the hearing is entirely unpersuasive, given its objections based on burden and its arguments regarding overbreadth and burden in opposing the motion to compel. Amazon should have undertaken efforts to determine the extent of any burden prior to the motion to compel, not after.

That Amazon has now been ordered to provide further responses is not a new or different fact, circumstance or law. If Amazon were correct in its argument, there would simply be no limit on a party’s ability to

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00317395-CU-PA-GDS: Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki 08/08/2023 Hearing on Motion for Protective Order in Department 53

reargue a motion. On this basis alone, the motion is denied.

In reality, Amazon’s argument is nothing more than an attempt to reargue the underlying motion. Yet its attempt to do so is untimely and Amazon presented no “new or different facts, circumstances, or law” much less any reason for not providing that information earlier. A court “acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon ‘new or different facts, circumstances, or law.’” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) The Court has no jurisdiction to grant the instant motion.

In addition, even if it was somehow possible to conclude that the motion was not one for reconsideration -- despite the fact that Amazon is seeking to argue that an objection which has already been overruled now supports a new motion for protective order -- this motion would still nevertheless be denied. Amazon cites to CCP §§ 2017.020(a) and 2031.060 as support for its request for a protective order. CCP § 2017.020(a) allows the Court to limit discovery “if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” CCP § 2031.060 provides that a party served with a request for inspection or production of electronically stored information may “promptly” move for a protective order. (CCP § 2031.060(a) [emphasis added].) “The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP § 2031.060(b).)

Here, the Court agrees with Plaintiffs that even if the motion was not an improper motion for reconsideration, and was a proper motion for protective order, it must be denied as untimely. As noted, a motion must be “promptly” made. “As to the timeliness of [a] motion for protective order, the promptness of the request turns on the facts.” (Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 317.) Here, Amazon was served with the subject request for production on September 23, 2022. (Park Decl.

Exh. 1.) While Amazon interposed an undue burden objection, it never moved for a protective order. On March 23, 2023, the Court granted Plaintiffs’ motion to compel and overruled the undue burden objection which Amazon essentially seeks to reargue here. Amazon served the Court ordered further responses on April 6, 2023, which as noted contained the objections which Amazon was ordered to remove. (Id. Exh. 4 at. pp. 4-5.) Plaintiffs sent meet and confer correspondence to Amazon to which Amazon responded on April 25, 2023, claiming that a response to request no. 49 would be unduly burdensome but indicating that if Plaintiff wanted all communications between it and Tojikon, it would take at least three months to find the documents and review them for any privileged information. (Id.

Exh. 6.) Plaintiffs responded that the Court had overruled the objections and on May 2, 2023, Amazon responded by agreeing to produce documents by stating “my last response to the issue stated that Amazon is willing to produce everything if that is what Plaintiffs actually wat but that any response along this broad scope and time cannot be meaningfully responded to by Amazon without time-intensive and costly undertaking by our client.” (Id. Exh. 7.) However, Amazon then filed the instant motion on June 1, 2023.

The Court finds that a motion for protective order filed more than eight months after being served with the subject

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00317395-CU-PA-GDS: Ruby-Lynn Ragasa Idmilao vs. Sharif Davlatberki 08/08/2023 Hearing on Motion for Protective Order in Department 53

discovery, and more than two months after having been ordered by the Court to provide further responses removing the undue burden objection which it now asserts as a basis for the protective order was not “promptly” made. The motion is denied on this alternate basis.

Moreover, while there is no basis for this Court to re-address the merits of the burden argument, the Court would reject Amazon's argument even if it did. As set forth above Amazon attempts to demonstrate the burden in responding to request no. 49 through Sandefur’s declaration. At most he indicates that collecting data and documents for all 720 loads requires a search of multiple servers and systems and that a search for data for a single load could take ten minutes or more. (Id. ¶ 12.) He also appears to indicate responding would require an email search and that the scope of the “communications could involve an untold number of Amazon personnel from multiple separate and distinct business operations and teams that may have been engaged in communications with representatives of Tojikon on matters related to other Relay shipments unrelated to this litigation. (Id. ¶ 13.)

There is no further detail of the amount of work and no detail at all regarding any expense that would be required to respond to request no. 49 and Amazon has failed to demonstrate that the burden in responding clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. On this additional basis the motion would still be denied.

In sum, the motion is denied in its entirety. The Court will not limit the scope of request no. 49 nor provide an extension of time for Amazon to respond. While Amazon also asks for a clarification of the Court’s March 23, 2023, order, it fails to discuss what clarification it seeks. In any event, the order was crystal clear with respect to what Amazon was required to do and a request for clarification is untimely as already set forth above.

Plaintiffs’ request for monetary, issue, and evidence sanctions based on their argument that Amazon has engaged in discovery abuse by refusing to comply with the Court’s March 23, 2023, order is denied without prejudice to bringing an appropriate motion. Plaintiffs did not request sanctions pursuant to CCP § 2031.060(h) on the basis that Amazon brought the instant motion without substantial justification. While the Court could have entertained such a request in Plaintiffs’ opposition, it cannot entertain the request for affirmative relief made in their opposition based on a contention that Amazon is refusing to comply with a Court order. Plaintiffs are free to bring an appropriate motion.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or other notice is required.