Judge: Anne Hwang, Case: 22STCV08898, Date: 2024-05-13 Tentative Ruling

Case Number: 22STCV08898    Hearing Date: May 13, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On March 11, 2022, Plaintiff Jose Chico (“Plaintiff”) filed a complaint against Defendants Israel Ramon Gomez, Swift Transportation Co. of Arizona, LLC, Knight-Swift Transportation Holdings, Inc., and Does 1 to 25 for negligence and negligent entrustment surrounding a motor vehicle accident. Plaintiff alleges Israel Ramon Gomez was operating the subject vehicle and was employed by Swift Transportation Co. of Arizona, LLC, Knight-Swift Transportation Holdings, Inc.

On June 2, 2023, Plaintiff propounded Form Interrogatories, Set One and Requests for Production, Set One on Defendant Swift Transportation Co. of Arizona, LLC (“Defendant”). (Jones Decl. ¶ 2, Exh. 1.) Defendant served initial responses on November 3, 2023. (Id., Exh. 2.) The parties met and conferred and on February 7, 2024, Defendant served supplemental responses. (Id., Exh. 4.)

            Plaintiff now moves to compel further responses to Form Interrogatories, Set One, numbers 13.1 and 13.2. Plaintiff seeks monetary sanctions. Defendant opposes. Plaintiff separately moves to compel further responses to Requests for Production, Set One numbers 21 and 22. No opposition has been filed by Defendant.

MEET AND CONFER

On February 29, 2024, the parties appeared for a scheduled Informal Discovery Conference (IDC) pursuant to the Court’s Eighth Amended Standing Order. Therefore, the IDC requirement has been met. (Min. Order, 2/29/24.)

ANALYSIS

I. Compel Further Response to Form Interrogatories

            A. Legal Standard

Code of Civil Procedure section 2030.300(a) provides that “on receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:¿ 

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(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.¿ 

(3) An objection to an interrogatory is without merit or too general.”¿ 

The motion must be accompanied by a meet and confer declaration. (Code Civ. Proc. § 2030.300(b)(1).) “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 propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (Code Civ. Proc. § 2030.300(c).)¿¿ 

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“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 a further 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. § 2030.300(d).)¿¿¿

B. Discussion

Here, Plaintiff seeks to compel further responses to Form Interrogatories, Set One, numbers 13.1 and 13.2. Each involve discovery about sub rosa surveillance. Plaintiff argues the objections lack merit and that the surveillance footage is not privileged. 

Number 13.1 asks the following:

“Have YOU OR ANYONE ACTING ON YOUR BEHALF conducted surveillance of any individual involved in the INCIDENT or any party to this action? If so, for each surveillance state: (a) the name, ADDRESS, and telephone number of the individual or party; (b) the time, date, and place of the surveillance; (c) the name, ADDRESS, and telephone number of the individual who conducted the surveillance; (d) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy of any surveillance photograph, film, or videotape.”

Defendant’s supplemental response contains the following:

“Objection. This interrogatory is vague, ambiguous, and overbroad. SWIFT TRANSPORTATION objects to the extent that this request improperly seeks information protected by both the attorney-client and attorney work-product privileges, as well as to the extent that this request seeks the premature disclosure of expert opinion and information, and to the extent that this request seeks information prepared in anticipation of litigation. (See, Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214; Coito v. Superior Court (2012) 54 Cal.4th 480; Scripps Health v. Sup. Ct. (Reynolds) (2003) 109 Cal. App. 4th 529.) SWIFT TRANSPORTATION objects to this interrogatory on the grounds that it seeks information not relevant to the subject matter of the instant litigation or the facts plead in Plaintiff's complaint. Subject to and without waiving the aforementioned objections, Responding Party responds as follows: Surveillance of Plaintiff Jose Chico was conducted on the following dates: 11/18/22, 11/21/22, 11/25/22, 12/6/22, 12/7/22, 12/13/22, 2/13/23, 2/14/23, 2/15/23, 3/14/23, 3/15/23, 3/16/23, 4/4/23, 4/5/23, 4/6/23, 5/3/23, 5/9/23, and 5/11/23.”

In opposition, Defendant argues this motion is moot since it served second further responses on April 30, 2024, before this hearing.

The second further responses to 13.1 state: “[Defendant asserts the same objections followed by:] Subject to and without waiving the aforementioned objections, Responding Party responds as follows: Yes. (a) Plaintiff Jose Chico. On information and belief, some of the dates in subsection (b) may include surveillance that was inadvertently conducted on Plaintiff’s brother, Anibal Chico. (b) 7/19/22, 7/20/22, 7/21/22, 11/18/22, 11/21/22, 11/25/22, 12/6/22, 12/7/22, 12/13/22, 2/13/23, 2/14/23, 2/15/23, 3/14/23, 3/15/23, 3/16/23, 4/4/23, 4/5/23, 4/6/23, 5/3/23, 5/9/23, and 5/11/23 (c) Phillip Cordero, Ruben Basulto, and Gilbert Landeros of Specialized Investigations, 21550 Oxnard Street #300, Woodland Hills, CA 91367; and Anthony Palacios and DeMarcus Allison of Marshall Investigative Group, 401 Devon Ave., Park Ridge, IL 60068; and (d) Responding Party’s counsel of record.”

(Herzog Decl. ¶ 9, Exh. F.)

            Plaintiff has not filed a reply in response. Since these responses appear to respond to interrogatory 13.1, the motion to compel is denied as moot. 

            Number 13.2 asks the following: “Has a written report been prepared on the surveillance? If so, for each written report state: (a) the title; (b) the date; (c) the name, ADDRESS, and telephone number of the individual who prepared the report; and (d) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy.”

Defendant’s supplemental response contains the following:

“[Defendant asserts the same objections in number 13 followed by:] Subject to and without waiving the aforementioned objections, Responding Party responds as follows: Yes, reports were prepared on the following dates: 12/14/22, 12/15/22 and 4/17/23 by Specialized Investigations, and 5/13/23 by Marshall Investigative Group.”

The second further response to 13.2 states: “[Defendant asserts the same objections followed by:] Subject to and without waiving the aforementioned objections, Responding Party responds as follows: Yes. (a) Surveillance Investigation Report; (b) December 14, 2022, December 15, 2022, January 10, 2023, and April 17, 2023; (c) Phillip Cordero, Ruben Basulto, and Gilbert Landeros of Specialized Investigations, 21550 Oxnard Street #300, Woodland Hills, CA 91367; and (d) Responding Party’s counsel of record. (a) Confidential Report; (b) July 29, 2022 and May 13, 2023; (c) Anthony Palacios and DeMarcus Allison of Marshall Investigative Group, 401 Devon Ave., Park Ridge, IL 60068; and (d) Responding Party’s counsel of record.”

(Herzog Decl. ¶ 9, Exh. F.)

Similarly, these second responses appear to respond to the interrogatory. Since Plaintiff has not filed a reply, he fails to show they are deficient. Accordingly, the motion to compel further is denied as moot. As a result, the Court declines to award sanctions.

II. Compel Further Responses to Request for Production

Plaintiff also moves to compel further responses to Request for Production, Set One numbers 21 and 22.

            A. Legal Standard

Code of Civil Procedure section 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:¿ 

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(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.¿¿ 

A response consisting of an objection must specify with particularly the document being objected to, and, if based on privilege, must provide sufficient factual information for other parties to evaluate the merits of this claim, including if necessary, a privilege log. (Code Civ. Proc. § 2031.240 (b), (c).) 

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The motion must set forth specific facts showing good cause for the discovery and include a meet and confer declaration. (Code Civ. Proc. § 2031.310(b).)

“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.”¿ (Code Civ. Proc., § 2031.310(c).)¿¿¿ 

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 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).)

B. Discussion

Request for Production, Set One, number 21 asks the following: “Any and all DOCUMENTS RELATING TO any surveillance of any individual involved in the INCIDENT or any party to this action.” Number 22 asks the following: “Any and all RECORDINGS depicting any and all parties to this lawsuit, including but not limited to covert surveillance video otherwise known as ‘sub rosa’ video.”

Defendant did not provide supplemental responses to numbers 21 and 22. The original responses are identical and contain the following:

“Objection. This request is vague, ambiguous, and overbroad as to "surveillance." This request is objectionable to the extent the information sought seeks to invade the attorney client privilege and work product doctrine, seeks the premature disclosure of expert opinion and seeks documents prepared in anticipation of litigation. (See Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214; Scripps Health v. Superior Court (Reynolds) (2003) 109 Cal.App.4th 529.) SWIFT TRANSPORTATION additionally objects to this request on the grounds that it is not limited in scope, and is overbroad, burdensome, oppressive, and harassing. SWIFT TRANSPORTATION objects to this request on the grounds that it seeks information not relevant to the subject matter of the instant litigation or the facts plead in Plaintiff's complaint.”

Plaintiff argues the objections, including those based on privilege and the work product doctrine are without merit.

i. Work Product Doctrine

Code of Civil Procedure section 2018.030 states the following: 

“(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. 

(b) 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.” 

“A party seeking disclosure [of material protected by qualified work product] has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice.” (Coito v. Superior Court (2012) 54 Cal.4th 480, 499.)  

In Suezaki v. Superior Court (1962) 58 Cal.2d 166, the California Supreme Court was asked to determine whether a defendant’s surveillance footage of a plaintiff was privileged as a matter of law. The Court held that the footage did not fall under the attorney client privilege because it was not a “communication” between the client and attorney, but that it was subject to work product protection. (Id. at 177–78.) However, the Court further explained that “the fact that the material sought to be discovered is the ‘work product’ of the attorney is one factor to be used by the trial court in the exercise of its discretion in determining whether or not discovery should be granted.” (Id. at 178.) This observation remains valid even under California’s since-enacted work product statutes, because the work product statutes are “intended to be a restatement of existing law relating to protection of work product” and are “not intended to expand or reduce the extent to which work product is discoverable.” (Code Civ. Proc., § 2018.040.)  Therefore, “[t]he trial court must consider all the relevant factors involved and then determine whether, under all the circumstances, discovery would or would not be fair and equitable.” (Suezaki, supra, 58 Cal.2d at 178.) 

Here, Defendant has admitted in Form Interrogatories number 13.1 and 13.2 that surveillance footage exists.

According to Plaintiff, on April 12, 2024, Defendant’s counsel stated that they did not intend to use the videos at this time, but their position could change based on witness testimony. (Jones Decl. ¶ 20.) Plaintiff argues the production is needed to effectively prepare for trial as the evidence may be used to dispute Plaintiff’s physical condition. It does not appear the parties have stipulated against using the footage in trial. Therefore, there appears to be good cause for the discovery. The discovery appears relevant to Plaintiff’s condition, which will be at issue when assessing damages. It is unclear how this footage or related documents could include expert opinion. Therefore, these objections, including based on the scope and burden, are without merit. The objection based on attorney client privilege is similarly without merit. Lastly, though it is possible the production could constitute attorney work product, Defendant fails to oppose this motion or set forth facts demonstrating the doctrine applies. As stated above in Code of Civil Procedure section 2031.240 (c), the party asserting work product must provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. Here, Defendant has not complied with section 2031.240.

Therefore, because Defendant fails to set forth facts that the work product doctrine applies, the motion to compel further is granted.

ii. Sanctions

Plaintiff request $2,160 in monetary sanctions representing a $350 hourly rate and the $60 filing fee. (Jones Decl. ¶ 21.) Sanctions are mandatory against the unsuccessful party that opposes a motion to compel further discovery.

CONCLUSION AND ORDER

Therefore, the Court DENIES as moot Plaintiff’s motion to compel further responses to Form Interrogatories, Set One.

The Court GRANTS Plaintiff’s motion to compel further responses to Request for Production of Documents, Set One, numbers 21 and 22. Defendant shall serve further responses within 15 days.

The Court awards monetary sanctions in the amount of $2,160 as to Defendant and counsel for Defendant, jointly and severally, due payable to counsel for Plaintiff within 30 days.

Plaintiff to provide notice and file a proof of service of such.