Estate of Silvia Manzo Velasco et al vs Uber Technologies Inc et al

Case Number

24CV03780

Case Type

Hearing Date / Time

Fri, 12/13/2024 - 10:00

Nature of Proceedings

8 Motions to Compe; Case Management Conference

Tentative Ruling

(1) For all reasons discussed herein, the motion of plaintiffs for an order compelling defendant Checkr, Inc., to provide further responses and to produce documents and things responsive to plaintiffs’ set one demand for production of documents is granted. On or before December 27, 2024, defendant Checkr, Inc., shall serve verified code-complaint further responses to plaintiffs’ set one demand for production of documents nos. 1, 2, 5, 7, 8, 10, 20, and 30, without objections overruled herein except as to those based on privilege, and shall produce complete copies of all documents requested in these demands subject and without prejudice to the designation of any document as confidential pursuant to the protective order entered in this action on November 26, 2024. To the extent defendant Checkr, Inc., asserts objections to the production of any document or information based on a claim of privilege, defendant shall produce a sufficient privilege log in accordance with this ruling.

(2) For all reasons discussed herein, the motion of plaintiffs for an order compelling defendant Checkr, Inc., to provide further responses and to produce documents and things responsive to plaintiffs’ set two demand for production of documents is granted. On or before December 27, 2024, defendant Checkr, Inc., shall serve verified code-complaint further responses to plaintiffs’ set two demand for production of documents nos. 31 through 36, 39 and 40, without objections overruled herein except as to those based on privilege, and shall produce complete copies of all documents requested in these demands subject and without prejudice to the designation of any document as confidential pursuant to the protective order entered in this action on November 26, 2024. To the extent defendant Checkr, Inc., asserts objections to the production of any document or information based on a claim of privilege, defendant shall produce a sufficient privilege log in accordance with this ruling.

(3) For all reasons discussed herein, the motions of plaintiffs for orders compelling defendants Checkr, Inc., Portier, LLC, and Uber Technologies, Inc., to produce their person or persons most knowledgeable regarding the Master Services Agreement for deposition and to produce documents responsive to the demand for production of documents accompanying the deposition notice, are each granted, in part. Defendant Checkr, Inc., shall produce its person most knowledgeable regarding the Master Services Agreement for deposition on December 20, 2024. Defendants Uber Technologies, Inc., and Portier, Inc., shall produce their person most knowledgeable regarding the Master Services Agreement for deposition on January 14, 2025. Except as otherwise herein granted, these motions are denied without prejudice.

(4) For all reasons discussed herein, the motions of plaintiffs for orders compelling defendants Portier, LLC, and Uber Technologies, Inc., to produce their person or persons most knowledgeable regarding insurance and insurance policies for deposition and to produce documents responsive to the demand for production of documents accompanying the deposition notice, are each granted, in part. Defendants Uber Technologies, Inc., and Portier, Inc., shall produce their person most knowledgeable regarding insurance and insurance policies for deposition on January 14, 2025. Except as otherwise herein granted, these motions are denied without prejudice.

(5) For all reasons discussed herein, the motion of plaintiffs for an order compelling Checkr, Inc., to produce its person or persons most knowledgeable regarding insurance and insurance policies for deposition and to produce documents responsive to the demand for production of documents accompanying the deposition notice, is continued to January 17, 2025. Plaintiffs and Checkr, Inc., shall meet and confer, fully and in good faith, to mutually select a date for the continued deposition of the person most knowledgeable of Checkr, Inc., regarding insurance and insurance policies. On or before January 3, 2025, plaintiffs and defendant Checkr, Inc., shall file and serve either joint or individual status reports setting forth their efforts to meet and confer to select a date for the continued deposition ordered herein, including whether or not a date has been selected and if not, why not, and what, if any, issues remain to be determined with respect to the motion.

(6) Counsel for Uber Technologies, Inc., and Portier, Inc., Dommond E. Lonnie, David S. Killoran, and Ashley R. Fickel, and counsel for Checkr, Inc., Paul Caleo and Emily G. Genge, are each ordered to appear on January 17, 2025, at 10:00 a.m. in this Department, and show cause why monetary sanctions not to exceed $1,500 should not be imposed against each of them for violating the Court’s Minute Order dated November 22, 2024, as further discussed herein. Counsel for the parties shall each file and serve their respective written responses to the Court’s order to show cause on or before January 3, 2025.

Background:

This action was originally filed in the Superior Court of California for the County of San Francisco as case no. CGC-23-606780 entitled Estate of Silvia Manzo Velasco v. Uber Technologies et al. (the SF Action), and transferred to this Court on July 9, 2024.  

Records filed in the SF Action and transferred to this Court reflect that on May 30, 2023, plaintiffs the Estate of Silvia Manzo Velasco (Silvia) by and through its successor in interest Ricardo Velasco (Ricardo), Ricardo, Juan Velasco (Juan), Ana Velasco (Ana), Kasandra Velasco (Kasandra), Monica Velasco (Monica), Jose Alvarado (Jose) by and through is guardian ad litem Ana, and Francisca Solis (Solis) (collectively, plaintiffs) filed their original complaint against defendants Uber Technologies, Inc. (Uber), Portier, LLC (Portier), Checkr, Inc. (Checkr), and Andrew Raymond Burgher (Burgher) (collectively, defendants), alleging four causes of action: (1) negligence (against all defendants); (2) negligent hiring, supervision, or retention (against Uber, Portier, and Checkr); (3) wrongful death (against all defendants); and (4) survival action (against all defendants). (Note: Due to common familial surnames, the Court will refer to plaintiffs by their first names where necessary. No disrespect is intended.)

Court records further reflect that on June 6, 2023, plaintiffs filed in the SF Action a first amended complaint (the FAC) against defendants alleging the same four causes of action described above. As alleged in the operative FAC:

Ricardo is the husband of Silvia, and Juan, Ana, Kasandra, and Monica are Silvia’s children. (FAC, ¶¶ 6-10.) Jose is Silvia’s biological grandson, and Solis is the mother of Silvia. (Id. at ¶¶ 11-12.)

Uber operates a Transportation Network Company which provides transportation options and vehicles for users of its services through an online application (the Uber App). (FAC, ¶ 13.) Portier is a wholly owned subsidiary of Uber that runs the Delivery Network Company arm of Uber and that does business as Uber Eats, a division of Uber that provides on-demand food delivery services through an “Uber Eats App” mobile phone application. (Id. at ¶¶ 14 & 16.) Uber and Portier (collectively, the Uber Parties) employ drivers through the Uber App and Uber Eats App. (Id. at ¶ 16.) Portier generates leads for Uber Eats drivers through the Uber Eats App to facilitate the delivery of food to customers, and holds the insurance certificate for insurance carried by Uber. (Id. at ¶¶ 16 & 18.)

The Uber Parties perform background investigations of drivers through Checkr, which is a third-party investigative consumer reporting agency. (FAC, ¶¶ 19 & 52.) The background checks which the Uber Parties outsource to Checkr are based on unverified information submitted by prospective drivers either through the Uber Eats App or the website, and do not require biometric identifiers such as a fingerprint. (Id. at ¶ 46.) As a result, the background checks performed by Checkr on behalf of the Uber Parties fail to uncover criminal conduct and driving histories due to Uber and Portier’s self-imposed requirement for expediency. (Ibid.)

Burgher entered into a Technology Services Agreement with the Uber Parties in which Burgher agreed that Burgher’s transportation of passengers or delivery of food for Uber and Portier furthered an employer-employee relationship. (FAC, ¶ 61.) On October 26, 2021, Silvia was the passenger in a vehicle which, suddenly and without warning, was violently struck by a vehicle operated by Burgher. (Id. at ¶ 73.) At the time of the incident, Burgher was working as a commercial driver for Uber and Uber Eats. (Id. at ¶ 74.) Prior to the incident, Burgher had been operating his vehicle at speeds up to 120 miles per hour while intoxicated. (Id. at ¶¶ 75-76.)

Though the Uber Parties employed Checkr to investigate Burgher’s criminal history and motor vehicle records, Checkr failed to identify prior criminal convictions of Burgher which showed, among other things, that Burgher was on probation for a second “DUI” conviction until October 31, 2014, within the seven years prior to the background check performed by Checkr in connection with Burgher’s potential employment with the Uber Parties. (Id. at ¶ 82.)

On December 15, 2023, Uber and Portier separately answered the FAC, generally denying its allegations and asserting affirmative defenses. Burgher filed an answer to the FAC on January 16, 2024, generally denying its allegations and asserting affirmative defenses. Checkr answered the FAC on February 22, 2024, also generally denying its allegations and asserting affirmative defenses.

On November 8, 2024, the Court in this action entered a Minute Order (the November 8 Order) granting a “second amended” motion for trial preference filed by plaintiffs on October 1, 2024. The Court set a jury trial for February 13, 2025. (See also Nov. 14, 2024, Trial Call Order.)

On November 22, 2024, the Court entered a Minute Order (the November 22 Order), granting each of the separately filed motions of the Uber Parties and Checkr for a protective order for reasons more fully discussed in the November 22 Order, and directed these defendants to submit for the Court’s signature a proposed copy of the Los Angeles Model Stipulation and Protective Order – Confidential Designation Only (the Protective Order), in the form provided by the Superior Court of Los Angeles County.

The Protective Order was submitted and entered on November 26, 2024.

The discovery motions of plaintiffs and related orders:

Plaintiffs filed in this action ten discovery motions to which the Court refers collectively as the Discovery Motions:

On July 26, 2024, plaintiffs filed a motion for an order compelling Checkr (the Checkr Set One Motion) to serve further responses and to produce documents responsive to plaintiffs’ set one demand for production of documents (the Checkr Set One Demand), which is opposed by Checkr.

On September 13, 2024, plaintiffs filed a motion for an order compelling Checkr (the Checkr Set Two Motion) to serve further responses and produce documents responsive to plaintiffs’ set two demand for production of documents (the Checkr Set Two Demand), which is also opposed by Checkr.

On September 26, 2024, plaintiffs separately filed two motions for orders compelling Uber and Portier (respectively, the Uber Set Two Motion and the Portier Set Two Motion) to each serve further responses and produce documents responsive to plaintiffs’ set two demands for production of documents (respectively, the Uber Set Two Demand and the Portier Set Two Demand), which were separately opposed by Uber and Portier.

On October 1, 2024, plaintiffs separately filed three motions (individually, the Uber MSA Motion, the Checkr MSA Motion, and the Portier MSA Motion, and collectively, the MSA Motions) to compel the depositions of the most qualified individuals of, respectively, Uber, Checkr, and Portier as to a Master Services Agreement executed on October 16, 2020 (the MSA), and to produce documents at the deposition. The MSA Motions are each separately opposed by Uber, Checkr, and Portier.

On October 11, 2024, plaintiffs separately filed three motions (the Uber Insurance Motion, the Checkr Insurance Motion, and the Portier Insurance Motion, and collectively, the Insurance Motions) for orders compelling the deposition of the person or persons most knowledgeable of, respectively, Uber, Checkr, and Portier as to applicable insurance policies, and to produce documents at the deposition. The Insurance Motions are each separately opposed by Uber, Checkr, and Portier.

Pursuant to the November 8 Order, the Court denied without prejudice the Uber Set Two Motion and the Portier Set Two Motion, and continued the hearing on the Checkr Set One Motion, the Checkr Set Two Motion, the MSA Motions, and the Insurance Motions to permit the parties to further meet and confer for reasons more fully discussed in the November 8 Order.

Pursuant to the November 22 Order, the Court further continued the hearing on the Checkr Set One Motion, the Checkr Set Two Motion, the MSA Motions, and the Insurance Motions to permit sufficient time for the parties to resolve any remaining discovery issues in light of the Court’s ruling granting the motions for protective orders separately filed by Checkr and the Uber Parties. The Court directed the parties to, on or before December 4, 2024, file joint or, if necessary, individual status reports setting forth in detail what, if any, issues remain to be resolved or determined by the Court with respect to the Checkr Set One Motion, the Checkr Set Two Motion, the MSA Motions, and the Insurance Motions.

The parties’ status reports:

On December 4, 2024, plaintiffs filed a joint status report stating that Checkr has produced all of the documents that Checkr has identified as responsive to the Checkr Set One Demand and the Checkr Set Two Demand, which include a copy of the MSA. (Pl. Status Report at p. 3, ll. 3-4.) Plaintiffs further state that, notwithstanding the entry of the Protective Order, the copy of the MSA produced by Checkr includes what plaintiffs describe as “heavy redactions” totaling more than half of the MSA. (Id. at p. 3, ll. 4-14.) Plaintiffs assert that the copy of the MSA produced by the Uber Parties also includes redactions. (Id. at p. 3, ll. 16-28 & Exhs. C-D.) Despite plaintiffs’ request for an unredacted copy of the MSA in light of the Protective Order, Checkr and the Uber Parties have not produced a complete or unredacted version of the MSA. (Id. at p. 3, ll. 15-16 & p. 4, ll. 2-5.)

As to the MSA Motions and the Insurance Motions, plaintiffs state that the Uber Parties have informed plaintiffs that their witnesses and counsel are not available for deposition until January 14, 2025. (Pl. Status Report at p. 4, ll. 20-22 & p. 5, ll. 10-12.) Plaintiffs also assert that the person most knowledgeable or PMK of Checkr as to insurance matters appeared for a deposition on December 4, 2024, that plaintiffs were unable to complete this deposition, and that Checkr has noticed the availability of its PMK regarding insurance matters for a continued deposition on December 20, 2024. (Id. at p. 4, ll. 22-23 & p. 5, ll. 12-13 & 16-17.)

In their status report, plaintiffs request that the Court enter an order directing Checkr and the Uber Parties to produce unredacted copies of the MSA and all documents requested by plaintiffs; directing that the deposition of Checkr’s PMK regarding the MSA proceed on December 20, 2024; and directing that the depositions or continued depositions of the PMKs of the Uber Parties and Checkr regarding insurance matters proceed within 10 days. (Pl. Status Report at p. 4, ll. 9-10 & 24-28, p. 5, ll. 21-25.)

On December 5, 2024, Checkr and the Uber Parties late-filed a joint status report in which these parties contend that the Checkr Set One Motion and the Checkr Set Two Motion should each be withdrawn or denied because plaintiffs have acknowledged that all documents subject to these motions have been produced by Checkr. (Def. Status Report at p. 2, ll. 20-22.) Checkr and the Uber Parties also contend that they have provided sufficient justification for redactions appearing in the MSA, which these parties set forth in their joint status report. (Id. at p 2, ll. 22-28 & p. 3, ll. 1-14.)

Checkr asserts that its PMK regarding the MSA is available for deposition on December 20, 2024. (Def. Status Report at p 3, ll. 18-20.) Checkr further asserts that the deposition of its PMK regarding insurance matters will be completed on a date and time that works for all counsel and the PMK. (Id. at p. 4, ll. 4-5.) The Uber Parties assert that their PMK regarding both the MSA and insurance matters is available for deposition on January 14, 2025. (Id. at p. 3, ll. 24-26 & p. 4, ll. 8-9.)

The December 6, 2024, hearing:

At the December 6, 2024, continued hearing on the Checkr Set One Motion, the Checkr Set Two Motion, the MSA Motions, and the Insurance Motions, the Court granted plaintiffs’ request to withdraw their “second amended” motion for trial preference, without prejudice, and vacated the February 13, 2025, trial date. (Dec. 6, 2024, Minute Order.) Further, the Court continued the hearing on the Checkr Set One Motion, the Checkr Set Two Motion, the MSA Motions, and the Insurance Motions, to December 13, 2024, to permit the Court sufficient time to review the status reports filed and late-filed by the parties and further described above. (Ibid.)

Analysis:

In its separately filed oppositions to the Checkr Set One Motion and the Checkr Set Two motion, Checkr expressly represented that it had “objected to each demand with a statement of compliance after the execution of a confidentiality stipulation and protective order”, that it was ready to produce documents responsive to the Checkr Set One Demand and the Checkr Set Two Demand, subject to a protective order, and that plaintiffs “sat on” and refused to implement or agree to a protective order. (See Checkr Opp. [Set One Motion] at p. 3, ll. 20-22 & 25-28; p. 4, ll. 5-12 & 21-28; p. 5, ll. 9-11 & 13-21 & p. 6, ll. 4-8; Checkr Opp. [Set Two Motion] at p. 1, ll. 25-27; p. 4, ll. 4-10; see also Genge Decls., ¶ 3-5 & 10.) Notwithstanding these representations, Checkr concedes that it has produced an incomplete copy of the MSA which includes redactions of information which, according to Checkr and the Uber Parties, is not relevant to the claims and issues presented in this action. (Def. Joint Report at pp. 2-3.)

The production by Checkr of an incomplete copy of the MSA indicates to the Court that disputes as to the issues presented in the Checkr Set One Motion and Checkr Set Two Motion remain notwithstanding the entry of the Protective Order as requested by Checkr and the Uber Parties, and that these remaining disputes require the Court to determine these motions. Information appearing in the status reports filed by the parties also indicate, as further detailed above, that disputes remain as to the production of the PMKs of Checkr and the Uber Parties for deposition, and that these remaining disputes require that the Court determine the MSA Motions and the Insurance Motions.

(1) The Checkr Set One Motion

A motion to compel further responses to an inspection demand must “set forth specific facts showing good cause justifying the discovery sought by the demand” which, under circumstances such as those present here where there exist no issues of privilege or claims of attorney work product, “is met simply by a fact-specific showing of relevance.” (Code Civ. Proc. §2031.310, subd. (b)(1); Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.)

At issue in the Checkr Set One Motion are Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30, which request, respectively and collectively, the production of organizational staffing charts and related documents from 2016 through the present, the document retention policies of Checkr, documents relating to the background investigation of Burgher and communications between Burgher and Checkr, and documents which support the responses of Checkr to plaintiffs’ form interrogatory nos. 3.7, 15.1, and 17.1. (Sep. Stmt. at p. 4-6, 9, 11 & 14-15.)

Plaintiffs assert that good cause exists for the requests stated in Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30 because the documents will reveal the identity of the person at Checkr who may enter into contracts for background checks with companies such as the Uber Parties, the identity of the person who determines the policies of Checkr including as to the background check performed on Burgher, and the sufficiency of the background check performed on Burgher by Checkr. (Checkr Set One Motion at pp. 6-8.)

Considering the allegations of the FAC which give rise to the theories of liability alleged against Checkr in this action, including with respect to the background check or investigation of Burgher which the Uber Parties allegedly hired Checkr to perform, plaintiffs have sufficiently explained how the discovery sought in Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30 will tend to prove a fact that is of consequence in this action. (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224, disapproved on another ground in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8 (Williams).) Absent from the opposition of Checkr is any reasoned factual or legal argument showing why there exists no good cause for the discovery sought in Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, or 30. Therefore, and for all reasons discussed above, the Court finds that plaintiffs have demonstrated sufficient good cause for the requests stated in Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30.

Plaintiffs contend that the objections of Checkr to Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30 are without merit. If good cause is shown, the burden then shifts to the responding party to justify any objections or failure to respond fully to the demand. (Fairmont Insurance Company v. Superior Court (2000) 22 Cal.4th 245, 255.)

Checkr asserts various objections to nearly all of the demands at issue in the Checkr Set One Motion including that the demands are compound, overbroad, unduly burdensome, vague, and ambiguous, and on the grounds that Checkr does not have permission to produce certain documents under “the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. and California Civil Code 1786.12”. (Sep. Stmt. at pp. 4, 5, 7, 9, 11, 14.) Checkr has not filed a response to the separate statement submitted by plaintiffs in support of the Checkr Set One Motion setting forth any justification for these objections. In addition, wholly absent from Checkr’s opposing memorandum is any reasoned argument justifying any of its objections to the demands at issue, including what, if any, burden will be imposed on Checkr by responding to these demands. (See, e.g., West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 418.) Moreover, for all reasons discussed above, plaintiffs have established the relevancy of each of the demands at issue in the Checkr Set One Motion.

Checkr raises additional objections to Checkr Set One Demand nos. 1, 2, 5, 8, and 30, on the grounds that these demands purportedly seek confidential and proprietary information. (Sep. Stmt. at pp. 4, 5, 7, 11 & 15.) Though the conclusory and general arguments made by Checkr in its opposition to the Checkr Set One Motion are sufficient to justify the entry of the Protective Order, these arguments are not sufficient to establish the confidential or proprietary nature of any specific document or information sought by plaintiffs, or to show good cause to deny or limit the discovery sought, in Checkr Set One Demand nos. 1, 2, 5, 8, and 30.

Further, Checkr has failed to explain why its objections to, or any damage that Checkr might sustain from the disclosure to plaintiffs of documents requested in, Checkr Set One Demand nos. 1, 2, 5, 8, and 30, cannot be satisfied or resolved by the entry of the Protective Order as requested by Checkr, also considering that Checkr represented it would produce the documents subject to a general protective order. (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 300-301 [general discussion]; Children’s Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260, 1277 [concerns regarding disclosure of proprietary information can be handled through protective orders]; see also Sep. Stmt. at pp. 4, 5, 11 [agreement by Checkr to produce documents subject to a protective order].)

In its responses to Checkr Set One Demand nos. 5, 8, and 30, Checkr raises additional objections based on third-party privacy rights. Also absent from the opposition of Checkr is any reasoned legal or factual argument establishing “a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams, supra, 3 Cal.5th at p. 552.)

For all reasons discussed above, to the extent Checkr has asserted objections to the production of the documents or information requested in Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30, Checkr has failed to present specific and sufficient evidence to justify or to provide a sufficient basis upon which the Court may sustain these objections. Therefore, and with the exception of objections based on the attorney client or work product privileges, the Court will overrule the objections of Checkr as to the production of the documents requested in Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30.

The substantive responses of Checkr to Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30, are made “subject to” objections which the Court will overrule. For this reason, the responses of Checkr are improper and do not comply with code requirements. Therefore, the Court will further order Checkr to provide verified further responses to Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30, without the objections overruled herein. The further responses of Checkr to these demands must include “[a] statement that [Checkr] will comply with the particular demand” or a representation that Checkr lacks the ability to comply with the demand, and otherwise comply with code requirements. (See, e.g., Code Civ. Proc., § 2031.210, subd. (a); see also §§ 2031.220-2031.250.)

The Court will also order Checkr to produce complete copies of all documents requested in Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30, including any document or information which has been withheld on the basis of any objection overruled herein. The production of documents by Checkr may be made subject and without prejudice to the designation by Checkr of any document as confidential pursuant to the Protective Order. Appropriate challenges to the designation of any document or information as confidential by Checkr may be brought pursuant to the terms of the Protective Order. In addition, to the extent Checkr asserts objections to the production of any document or information based on a claim of privilege, Checkr must produce a privilege log containing sufficient factual information to enable plaintiffs and the Court to evaluate whether any claim of privilege has merit. (Code Civ. Proc., § 2031.240, subd. (c)(1); Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130 [general discussion of proper contends of a privilege log].)

Sufficiency of plaintiffs’ efforts to informally resolve each issue presented in the Checkr Set One Motion:

In its opposition to the Checkr Set One Motion, Checkr asserts that, after sending an initial meet and confer letter on May 29, 2024, plaintiffs never followed up to obtain a response from Checkr. (Checkr Opp. at p. 3; Genge Decl., ¶¶ 7-10.) For these reasons, Checkr argues, plaintiffs and their counsel failed to make a reasonable, good faith attempt at an informal resolution of the disputes at issue in the Checkr Set One Motion.

Attached to the declaration of counsel for plaintiffs, Douglas S. Wacker (Wacker), submitted in support of the Checkr Set One Motion is a letter to counsel for Checkr dated May 24, 2024, in which plaintiffs identify purported deficiencies in the responses of Checkr to Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30. (Wacker Decl., Exh. 4.) In this letter, plaintiffs’ counsel requested that Checkr provide verified further responses to these demands. (Ibid.) Information appearing in paragraph 5 of the Wacker declaration further indicates that Checkr did not respond to plaintiffs’ May 24, 2024, correspondence other than to grant extensions of time for the filing of a motion to compel further responses to the Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30.

The undisputed information and record of correspondence offered by plaintiffs demonstrates that plaintiffs made an initial effort to informally resolve disputes as to the sufficiency of Checkr’s responses to Checkr Set One Demand nos. 1, 2, 5, 7, 8, 10, 20, and 30. Though Checkr argues that plaintiffs were required to make additional efforts, the apparent failure by Checkr to respond to plaintiffs’ initial correspondence suggests that the parties reached an impasse and that any further effort by plaintiffs was unlikely to bear fruit. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293-1294.) For these reasons, the Court finds that plaintiffs have shown a reasonable and good faith attempt to informally resolve the issues presented in the Checkr Set One Motion.

(2) The Checkr Set Two Motion

In the Checkr Set Two Motion, plaintiffs request an order compelling Checkr to provide further responses to Checkr Set Two Demand nos. 31 through 36, 39 and 40. In these demands, plaintiffs request the production of documents identifying or pertaining to written agreements between Checkr and the Uber Parties during stated time frames, and the policy and procedure manuals of Checkr which relate to the preparation of investigative reports and which were in effect when Checkr prepared the investigative report pertaining to Burgher. (Sep. Stmt. at pp. 3-5 & 12-13.)

Checkr offers no information to show why there exists no good cause for the requests stated in Checkr Set Two Demand nos. 31 through 36, 39 and 40. The same reasoning and analysis apply. For all reasons discussed above, plaintiffs have shown sufficient good cause for the requests stated in Checkr Set Two Demand nos. 31 through 36, 39 and 40.

The Court further finds that, for the same reasons further discussed above, plaintiffs have shown a reasonable and good faith attempt to informally resolve the issues presented in the Checkr Set Two Motion.

In its opposition Checkr Set Two Motion, Checkr similarly asserts that it “is ready to produce the identified documents upon the entry of a standard confidentiality stipulation and protective order ….” (Opp. at pp. 2 & 5-6.) Also absent from the opposition to the Checkr Set Two Motion is any reasoned legal or factual argument sufficient to show justification for any of the objections raised by Checkr in its responses to Checkr Set Two Demand nos. 31 through 36, 39 and 40. Therefore, for the same reasons further discussed above, the Court will overrule the objections of Checkr as to the production of the documents requested in Checkr Set Two Demand nos. 31 through 36, 39 and 40, except as to those objections which are based on attorney client or work product privileges.

In addition, and for the same reasons further discussed above, the Court will direct Checkr to serve verified and code compliant further responses to Checkr Set Two Demand nos. 31 through 36, 39 and 40, without the objections overruled herein, and to produce complete copies of the documents requested in these demands, including documents or information which have been withheld on the basis of any objections overruled herein. The production by Checkr of documents responsive to Checkr Set Two Demand nos. 31 through 36, 39 and 40 may also be made subject to a confidentiality designation pursuant to the Protective Order, and to any appropriate challenge to any such designation that may be brought under the terms of the Protective Order. To the extent Checkr withholds any documents or information based on a claim of privilege, Checkr must also produce a sufficient privilege log as further described above.

(3) The MSA Motions and the Insurance Motions

The parties do not appear to dispute that the sole issue remaining to be determined with respect to the MSA Motions and the Insurance Motions is the production for deposition of the PMKs of Checkr and the Uber Parties as further described above.

Checkr asserts that its PMK regarding the MSA is available for deposition on December 20, 2024. The Uber Parties have also represented to the Court that their PMK regarding insurance matters and the MSA is available for deposition on January 14, 2025. Therefore, the Court will grant the MSA Motions, the Uber Insurance Motion, and the Portier Insurance Motion, in part. The Court will order Checkr to produce its PMK regarding the MSA, and the Uber Parties to produce their PMK regarding the MSA and insurance matters, on the dates set forth in these parties’ joint status report. To the extent Checkr or the Uber Parties fail to produce their PMKs as ordered herein, or any document requested in the deposition notices of plaintiffs, the Court’s ruling is without prejudice to the future filing of an appropriate motion by plaintiffs.

Checkr has also stated that it will produce for continued deposition its PMK regarding insurance matters on an appropriate date to be mutually selected by the parties. Therefore, the Court will continue the hearing on the Checkr Insurance Motion, and direct plaintiffs and Checkr to further and fully meet and confer, in good faith, to select an appropriate date for the continued deposition of Checkr’s PMK regarding insurance matters. The Court will further order plaintiffs and Checkr to file joint or individual status reports setting forth the parties’ efforts to meet and confer to schedule the deposition, whether or not the parties have selected a date for the deposition and if not, why, and what, if any, issues remain to be determined with respect to the Checkr Insurance Motion.

(4) Order To Show Cause

In the November 22 Order, which is incorporated here, the Court provided a detailed discussion regarding whether or not there exists good cause for the entry of the general protective order requested by Checkr and the Uber Parties. Considering the Court’s ruling with respect to the Protective Order, and based on statements made by Checkr and the Uber Parties regarding the production of their PMKs for deposition subject to a protective order, the Court continued the hearing on the MSA Motions and the Insurance Motions to permit the parties sufficient time to schedule any remaining depositions in light of the Court’s ruling.

In addition, because statements made by Checkr in its oppositions to the Checkr Set One Motion and the Checkr Set Two Motion suggested to the Court that the disputes at issue in these motions may or would be mooted by the entry of a protective order as requested by Checkr, the Court also continued the hearing on the Checkr Set One Motion and the Checkr Set Two Motion to permit the parties sufficient time to meet and confer to resolve any remaining disputes.

Stating its expectation that the parties would meet and confer fully and in good faith to expeditiously schedule any remaining depositions and to resolve any remaining issues or disputes as to the Checkr Set One Demand and the Checkr Set Two Demand considering the Court’s ruling as to the protective order requested by defendants, the Court expressly stated that it required the parties to submit a joint or, if necessary, individual status reports prior to the continued hearing “setting forth in detail what, if any, issues remain to be resolved or determined by the Court with respect to the Checkr Set One Motion, the Checkr Set Two Motion, the MSA Motions, and the Insurance Motions.” (November 22 Order.) The Court directed counsel to submit the status reports by December 4, 2024. (Ibid.)

For reasons wholly unclear to the Court, the Uber Parties and Checkr failed to file a status report by the deadline stated in the November 22 Order. Further, absent from the joint status report filed by the Uber Parties and Checkr is any reasonable explanation for why that report was not filed until 4:34 p.m. on December 5, 2024, or why these parties could not file the report by the deadline stated in the November 22 Order.

In addition, to the extent plaintiffs did not request contributions from Checkr or the Uber Parties prior to filing plaintiffs’ status report, or did not circulate plaintiffs’ status report, Checkr and the Uber Parties fail to explain why this purported conduct precluded them from timely filing a status report by the deadline stated in the November 22 Order.

“A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term ‘person’ includes a witness, a party, a party’s attorney, or both.” (Code Civ. Proc., § 177.5.) Available information demonstrates that the Uber Parties and Checkr, without sufficient justification, failed to timely file either joint or individual status reports as required under the November 22 Order. For these reasons, the Court finds that the Uber Parties and Checkr have violated the November 22 Order. Moreover, neither the Uber Parties nor Checkr have demonstrated good cause or any substantial justification for their violation of the November 22 Order. (Code Civ. Proc., § 177.5; see also Seykora v. Superior Court (1991) 232 Cal.App.3d 1075, 1081 [“section 177.5 does not even require a willful violation, but merely one committed ‘without good cause of substantial justification,’ that is, without a valid excuse”].)

For all reasons further discussed above, the Court will order counsel for the Uber Parties, Dommond E. Lonnie, David S. Killoran, and Ashley R. Fickel, and counsel for Checkr, Paul Caleo and Emily G. Genge, to appear and show cause why monetary sanctions not to exceed $1,500 should not be imposed against each of them for violating the November 22 Order. The hearing on this order to show cause shall be set for January 17, 2025, at 10:00 a.m. in this Department. Counsel for the parties shall, on or before January 3, 2025, each file and serve their written responses to the Court’s order herein.