Judge: Andrew E. Cooper, Case: 23CHCV03245, Date: 2024-05-30 Tentative Ruling

Case Number: 23CHCV03245    Hearing Date: May 30, 2024    Dept: F51

Dept. F-51

Date: 5/30/24

Case #23CHCV03245

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES

Motions filed: 4/17/24

MOVING PARTY: Plaintiff Emily Lambie (“Plaintiff”)

RESPONDING PARTY: Defendants Jesus Guzman; and Eco Energy Solutions, Inc. dba High Voltage Electric (collectively, “Defendants”)

NOTICE: ok

RELIEF REQUESTED: An order compelling Defendants’ further responses to Plaintiff’s Form Interrogatories, Set One, Nos. 13.1 and 13.2 within 10 days. Plaintiff also requests monetary sanctions against Defendants and/or their counsel in the total amount of $5,898.30.

TENTATIVE RULING: The motions are granted. Defendants are ordered to serve further code-compliant responses to Plaintiff’s Form Interrogatories, Set One, Nos. 13.1 and 13.2, within 20 days. The Court imposes sanctions against Defendants and their counsel in the amount of $761.65.

BACKGROUND

This is a personal injury action in which Plaintiff alleges that on 1/31/23, she was injured in a motor vehicle incident between the vehicle she was driving and the one driven by defendant Jesus Guzman while he was in the course and scope of his employment with defendant Eco Energy Solutions, Inc. (“Eco Energy”). (Compl. p. 5.)

On 10/25/23, Plaintiff filed her complaint, alleging against Defendants the following causes of action: (1) Motor Vehicle Negligence; and (2) General Negligence. On 11/29/23, Defendants filed their answer.

On 11/15/23, Plaintiff served Eco Energy with her Form Interrogatories, Set One. (Decl. of Justice D. Turner ¶ 3.) On 11/30/23, Plaintiff served Guzman with her Form Interrogatories, Set One. (Ibid.) On 1/21/24, Defendants served their responses thereto. (Id. at ¶ 4.) On 3/19/24, Defendants served Plaintiff with supplemental responses. (Id. at ¶ 6.)

On 4/17/24, Plaintiff filed the instant motions to compel Defendants’ further responses to Form Interrogatory Nos. 13.1 and 13.2. On 4/26/24, Defendants filed their oppositions. No reply has been filed to date.

ANALYSIS

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: (1) An answer containing the information sought to be discovered; (2) An exercise of the party’s option to produce writings; or (3) An objection to the particular interrogatory.” (Code Civ Proc. § 2030.210, subd. (a).)

“Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ Proc. § 2030.220.) “If an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response. If an objection is based on a claim of privilege, the particular privilege invoked shall be clearly stated.” (Code Civ Proc. § 2030.240, subd. (b).)

A propounding party may move for an order compelling further responses to interrogatories if any of the following apply: “(1) An answer to a particular interrogatory is evasive or incomplete; (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc. § 2030.300, subd. (a).)

Here, Plaintiff seeks to compel Defendants’ additional responses to her first set of Form Interrogatories, specifically Interrogatory Nos. 13.1 and 13.2, which seek whether Defendants conducted surveillance of any individual involved in the incident or any party to the action, and whether any reports were prepared relating to any such surveillance. (Ex. 1 to Turner Decl.)

A.    Meet and Confer

A motion to compel further discovery responses must be accompanied by a meet and confer declaration stating “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. §§ 2031.310, subd. (b)(2); 2016.040.) 

Here, Plaintiff’s counsel declares that on 3/29/23, he sent Defendants’ counsel a met and confer letter regarding the issues raised in the instant motion. (Turner Decl. ¶ 8.) Defendants’ counsel responded on 4/1/24, and counsel for the parties met and conferred on 4/9/24 and 4/10/24, but were unable to informally resolve the issues. (Id. at ¶¶ 9–10.) Based on the foregoing, the Court finds that counsel has satisfied the meet and confer requirements under Code of Civil Procedure section 2031.310, subdivision (b)(2).

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B.     Attorney Work Product Privilege

The attorney work product doctrine protects writings reflecting “an attorney’s impressions, conclusions, opinions, or legal research or theories” from being discoverable under any circumstances. (Code Civ. Proc. § 2018.030, subd. (a).) “The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (Id. at subd. (b).)

Here, Defendants responded to the subject interrogatories as follows: “This interrogatory seeks information that is protected by the attorney-client and/or attorney work-product privileges. This interrogatory is also premature in that discovery and investigation are ongoing and continuous and it may require the premature disclosure of impeachment evidence, which may or may not be in the defense’s possession but the defense has no duty to disclose prior to Plaintiff’s testimony at trial (California Evidence Code §768, §769, 2 4 and §780.).” (Ex. 2 to Turner Decl.) Plaintiff argues that “here, Defendant interposed the attorney-work product doctrine and premature expert disclosure objections to Formal Interrogatories 13.1 and 13.2 at issue, without any effort to explain or identify how each objection applied.” (Pl.’s Mot. 3:9–11.)

Plaintiff contends that “it has become practice for Defense Counsel to hire private investigators to videotape Plaintiff for hundreds of hours to ‘catch’ the Plaintiff to appear not injured or doing an activity that Plaintiff claimed to be limited to do. Investigators film Plaintiffs for hundreds of hours and the videos are edited to a few minutes for the jury to watch, depicting the Plaintiff to appear not injured; therefore, it is crucial that to void Plaintiff from being ambushed at trial and be labeled as a ‘dishonest’ person.” (Id. at 3:25–4:2.) Plaintiff therefore asserts that she “should not be ambushed at trial or immediately prior to trial with surveillance videos of” herself. (Id. at 4:7–8.)

Defendants argue in opposition that no good cause exists here to compel their further responses to Form Interrogatory Nos. 13.1 and 13.2 where “Plaintiff wants an opportunity to explain or rehabilitate any adverse surveillance claims. Surveillance investigations are for impeachment, if used at all, and this has been confirmed to plaintiff’s counsel. Defendant has no intention to introduce any surveillance video in a case in chief if one were to exist.” (Defs.’ Opp. 3:2–5.) Defendants contend that such “investigations reflect counsel’s impressions, conclusions, and/or theories and are ‘writings’ entitled to absolute protection because they may also include reports, photos/video, taken from a particular angle or viewpoint, photographic enlargements, that show counsel’s theory of liability.” (Id. at 4:9–12.)

Plaintiff relies on Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166, where the California Supreme Court found that surveillance footage of a plaintiff in a personal injury action, taken by an independent investigator engaged by defense counsel, was not protected by the attorney-client privilege, and that whether the plaintiff’s inspection of the footage was barred under the attorney work-product doctrine lay within the trial court’s discretion. In opposition, Defendants argue that Suezaki is distinguishable because it “was decided in 1962, before the enactment of amendments to the Discovery Act that recognized the attorney work-product privilege.” (Defs.’ Opp. 5:26–27.)

Defendants argue in opposition that “surviellance [sic] investigation is an investigation performed by a party’s investigator, much like an expert consultant at the direction of counsel. The law is clear that any work performed by an undesignated expert consultant is protected from disclosure by the attorney work product doctrine.” (Id. at 3:6–9, citing Williamson v. Superior Court (1978) 21 Cal.3d 829, 834.) “An investigator is a consultant and the time, date, place, and location clearly provide insight into the attorney’s theory of the case and reflect counsel’s opinions, thus, this is privileged information.” (Id. at 3:18–20.) The Court is not persuaded by this contention.

Here, Defendants have not presented any legal authority supporting their proposition that independent investigators conducting surveillance of a party to the action, without that party’s knowledge, are subject to the same protections as expert consultants. Moreover, surveillance footage prepared by these independent investigators do not contain any attorney “impressions, conclusions, opinions, or legal research or theories” that would qualify it for absolute attorney work-product privilege. (Code Civ. Proc. § 2018.030, subd. (a).)

Additionally, as Plaintiff notes, “Plaintiff is not requesting the actual substance of the surveillance, but simply whether surveillance was conducted on Plaintiff, when the surveillance occurred, and identifying information of the person(s) who conducted the surveillance.” (Pl.’s Mot., p. ii, ll. 5–7.) The Court finds Defendants’ argument that “the risk of losing impeachment value of surveillance is particularly at issue, because Plaintiff seeks the actual surveillance, not just information on whether surveillance was done” lacks merit, as the plain language of the interrogatories do not seek the contents of any such surveillance. (Defs.’ Opp. 5:4–6.)

Based on the foregoing, the Court agrees with Plaintiff that “in addition to good cause existing for the discovery of sub rosa evidence in order to prepare the attorney to cross examine the investigator who did the sub rosa, good cause also exists for the production of sub rosa evidence to avoid trial by ambush and unfair surprise.” (Pl.’s Mot. 5:7–10.) Accordingly, the Court grants Plaintiff’s motion to compel Defendants’ further responses to Plaintiff’s Form Interrogatories, Set One, Nos. 13.1 and 13.2.

C.    Monetary Sanctions

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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. § 2030.290, subd. (c).) Additionally, “the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc. § 2023.030, subd. (a).)

Here, Plaintiff requests a total combined sum of $5,898.30 in monetary sanctions against Defendants and/or their counsel, which encompasses: (1) 11.5 hours of Plaintiff’s attorney’s time spent her motion with respect to Eco Energy; and (2) 5 hours of counsel’s time spent on her motion with respect to Guzman, at counsel’s hourly billing rate of $350.00 per hour. (Turner Decl. ¶ 13.) Plaintiff also seeks to recover $61.65 in filing fees per motion. (Id. at ¶ 12.) In granting the instant motions, the Court finds it reasonable to award Plaintiff monetary sanctions in the amount of $761.65. against Defendants and their counsel.

CONCLUSION

The motions are granted. Defendants are ordered to serve further code-compliant responses to Plaintiff’s Form Interrogatories, Set One, Nos. 13.1 and 13.2, within 20 days. The Court imposes sanctions against Defendants and their counsel in the amount of $761.65.