Judge Audra Mori, Case 20STCV14285 2022-08-02 Tentative Ruling

Plaintiff Dejvid Hoxha (“Plaintiff”) filed this action against Defendants Southern California Gas Company and Eduardo Padilla (collectively, “Defendants”) for damages arising from a motor vehicle accident.

On April 12, 2022, Defendants filed the instant motion to compel further deposition testimony from Plaintiff. Plaintiff opposed, and Defendants filed a reply. The matter was originally set for hearing on May 13, 2022, where it was continued, and the parties were ordered to participate in an Informal Discovery Conference (“IDC”) as required by the Court’s Standing Order Re: PI Court Procedures. (Min. Order May 13, 2022.) The parties participated in an IDC on June 14, 2022, where the parties were further ordered to meet and confer regarding these discovery issues, and motion was continued to July 29, 2022. (Min. Order June 14, 2022.) On July 22, 2022, a Joint Statement of Items in Dispute was filed concerning the issues in this motion, as the parties were unable to resolve their disputes.

On July 18, 2022, Plaintiff filed an amended opposition to the motion, and Defendants filed a reply to the amended opposition. Defendants object to Plaintiff’s amended opposition as improper; however, given that Defendants filed the motion prior to participating in an IDC, which necessitated the continuance of the initial hearing, the court will consider the amended opposition on the merits. Defendants, in their reply to the amended opposition, were able to address Plaintiff’s arguments and do not show any prejudice. The filings and argument of counsel in this case do, however, show a lack of cooperation, and it would be helpful if counsel treated one another with greater civility going forward.

The parties’ Joint Statement identifies 23 questions that Plaintiff objected and did not provide an answer to during his deposition.

If a deponent fails to answer any question or to produce any document under its control, the party seeking discovery may move the court for an order compelling that answer or production. (CCP § 2025.480(a).) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (CCP § 2025.480(i).)

“Unless otherwise limited by order of the court in accordance with [the discovery statutes], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action....” (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-13.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Id. at 1013.) “Moreover, even were the questions designed to elicit irrelevant evidence, irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition.” (Id. at 1014.)

Questions 1, 2, 3, 4, 18, and 19 concern where Plaintiff has lived, why he moved to the United States, whether he visits a country where he has family, and Plaintiff’s rent. At the deposition, Plaintiff’s counsel objected on privacy grounds and instructed Plaintiff not to answer. Plaintiff also contends that questions 1-4 and 18-19 concern Plaintiff’s life and are unrelated to the accident or injuries in this action, so they are not calculated to lead to the discovery of admissible evidence. Plaintiff contends the questions are intrusive, and that this action does not give Defendants a right to know Plaintiff’s entire family history.

Defendants, in reply, asserts that these questions are aimed at obtaining information reasonably calculated to the discovery of admissible evidence. Defendants assert that Plaintiff was diagnosed with hydrocephalus, “which is a buildup of fluid in the brain,” (Reply filed July 22, 2022, at p. 3:12), and that Plaintiff alleges that the accident caused him to develop hydrocephalus. Defendants contend the subject questions are intended to obtain information concerning Plaintiff’s hydrocephalus, and whether, for example, Plaintiff’s hydrocephalus may have gone undetected at birth. Further, Defendants aver the questions about his ability to travel and pay rent are directly relevant to Plaintiff’s non-economic damages, which can include loss of enjoyment of life and emotional distress claims.

Although Plaintiff asserts a conclusory privacy objection, Plaintiff does not show that the information sought is private. “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 552, citing Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) As Plaintiff does not make this showing, the privacy objection is overruled.

While Plaintiff argues these questions are irrelevant, irrelevance alone is not a sufficient ground to prevent a deponent from responding to a question at a deposition. (Stewart, 87 Cal.App.4th at 1014.) As Defendants contend, the information may be relevant or lead to admissible evidence concerning Plaintiff’s hydrocephalus or non-economic damages claims.

Defendants’ motion to compel Plaintiff’s deposition answers to Questions 1, 2, 3, 4, 18, and 19 is granted.

Questions 16 and 17 concern Plaintiff’s enjoyment of soccer. Specifically, whether he watches soccer and whether when Plaintiff last played soccer, he played in a league. Plaintiff contends that since he is not claiming his ability to play soccer was curtailed by his injuries, the questions are an invasion of privacy. However, Plaintiff again fails to establish “a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 552, citing Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) Plaintiff does not establish, and it is unlikely that he can establish, a legally protected privacy interest in the information requested by these questions concerning soccer. With regard to the relevance objection, irrelevance alone is not a sufficient ground to prevent Plaintiff from answering questions at a deposition. Moreover, as Defendants argue, the questions may be relevant or lead to the discovery of admissible evidence concerning Plaintiff’s non-economic damages claims.

Defendants’ motion to compel Plaintiff’s deposition answers to Questions 16 and 17 is granted.

Plaintiff asserts that questions 5, 8-11, and 20-21 concern Plaintiff’s medical history beyond the parts of his body injured in this accident, and thus, violate Plaintiff’s right to privacy. Plaintiff argues the questions ask about injuries or medical conditions with no limitation to parts of his body affected by the accident.

Defendants contend that these questions are directly relevant to Plaintiff’s claimed injuries and conditions. Defendants aver the questions are tailored to obtain information regarding Plaintiff’s hydrocephalus and other conditions allegedly caused by the accident to investigate whether they were in fact caused by the accident. Defendants contend they are entitled to investigate whether Plaintiff’s condition and symptoms were caused by other injuries.

By filing a personal injury action, plaintiffs place in issue their past and present physical and/or mental conditions related to the injury sued upon. Information relating to the claimed injuries is thus discoverable. (Evidence Code §§ 996, 1016; Britt v. Superior Court (1978) 20 Cal.3d 844, 862–64.) Normally, information about medical conditions entirely different from the injury sued upon is beyond the scope of discovery. However, information pertaining to an unrelated condition is discoverable on a showing of “good cause” if the condition is relevant to the issue of proximate causation. (Evidence Code §999; Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1314–1315 [good cause shown by info that plaintiff was blind 6 months before accident].)

In this case, Defendants attest Plaintiff is claiming he sustained multiple and complex injures as a result of the accident, including “hydrocephalus; dizziness; difficulty finding words; foggy thinking; lack of concentration; nightmares; headaches; head pain; neck pain; neck stiffness; surgical incision; surgical scar; and itching.” (Mot. at p. 2:9-11.) In particular, Defendants aver that their experts have determined that Plaintiff’s hydrocephalus was congenital and preexisted the accident. Further, Defendants assert that Plaintiff’s treating neuroradiologists have testified that Plaintiff’s hydrocephalus has a different cause predating the accident, and that one of them noted a condition that first develops in the fetus as explaining the hydrocephalus.

(5) At any – at any point after enlisting in inactive duty, did you ever sustain any injuries in connection with your service obligation?

(8) Mr. Hoxha, have you sustained any injuries at any time after the subject accident?

(9) Mr. Hoxha, did you have any medical conditions that existed prior to the date of the subject accident of March 9, 2020?

(11) Have you ever been involved in any other motor vehicle accidents in which you sustained injuries?

(Joint Statement at pp. 4-7, 11.) As phrased, these questions may concern Plaintiff’s medical conditions and injuries that are not related to the subject accident. However, as phrased, these answers call only for “yes” or “no” responses. Plaintiff does not show that answering the questions in this manner is so intrusive as to warrant privacy protection. Nonetheless, the court notes that follow-up questions concerning body parts or conditions not at issue in this action would likely be improper and requests that the parties cooperate to avoid having further discovery disputes about this issue, which they have brought to court repeatedly.

Defendants’ motion to compel further answers to Questions 5, 8, 9, 10, 11, 20 and 21 is granted in part as stated above.

Plaintiff asserts that questions 6 and 7 improperly seek information concerning other accidents which is private and not relevant or calculated to lead to the discovery of admissible evidence. Defendants, however, aver that the questions are aimed at learning of any other potential injuries Plaintiff may have sustained outside of the accident at issue.

Again, Plaintiff’s conclusory privacy objection is not supported by any showing that the information requested is private. The subject questions only ask Plaintiff whether he was ever involved in a car accident in which he was a driver or a passenger. They do not require Plaintiff to disclose whether Plaintiff suffered injuries to other body parts. They are reasonably calculated to lead to discovery about Plaintiff’s driving and claims at issue in this motor vehicle accident case, such as whether he was ever involved in a similar accident. Whether the information sought is discoverable is a different question than whether it is admissible.

Plaintiff contends questions 12, 14 and 15 improperly call for legal conclusions from Plaintiff concerning what claims he is making. Plaintiff argues that his claims are set forth in his interrogatories, and Defendants are not permitted to ask what Plaintiff’s legal contentions are. In reply, Defendants argue that the questions at issue only ask Plaintiff to indicate whether he is claiming property damages, loss of income, and loss of future income, and that Defendants are entitled to know this information.

Both parties cite to Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255 (“Rifkind”) in arguing whether Plaintiff must answer these deposition questions.

As one commentator put it, legal contention questions require the party interrogated to make a “law-to-fact application that is beyond the competence of most lay persons.” (1 Hogan, Modern California Discovery (4th ed. 1988) § 5.9, p. 252.) Even if such questions may be characterized as not calling for a legal opinion (see Singer v. Superior Court, supra, 54 Cal.2d at p. 326, 5 Cal.Rptr. 697, 353 P.2d 305), or as presenting a mixed question of law and fact (see 4A Moore's Federal Practice (2d ed.) § 33.17[2], p. 33–85), their basic vice when used at a deposition is that they are unfair. They call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot. There is no legitimate reason to put the deponent to that exercise. If the deposing party wants to know facts, it can ask for facts; if it wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory. The party answering the interrogatory may then, with aid of counsel, apply the legal reasoning involved in marshaling the facts relied upon for each of its contentions. That, we believe, is a principal basis of the Supreme Court's dicta in Pember II, and of the federal authorities. It is a major reason why, as Professor Hogan puts it, “[t]aking the oral deposition of the adverse party is neither a satisfactory nor a proper way to satisfy” the interrogating party's desire to learn which facts a party thinks support its specific contentions. (1 Hogan, supra, § 5.9, p. 252.) “[T]he most suitable tool” for obtaining this kind of information is the written interrogatory, because “[t]his discovery device provides time for reflection as well as the assistance of counsel in formulating a reply. The interrogatory method of discovery takes on an added dimension when employed for this purpose. It is not confined, as is an oral deposition, to learning what a party has done, seen, heard, or been told. So used, the interrogatory becomes an instrument for forcing one's opponent (or, more realistically, the opponent's attorney) to engage in a rather sophisticated process of legal reasoning. This process will require the responding party to sort through the mass of available factual data and arrange it in terms of the particular contentions that are being made.” (1 Hogan, supra, § 5.9, p. 253.) As the United States District Court put it in the Lance case, “[t]his is what lawyers are for.” (32 F.R.D. at p. 53.)

These questions ask Plaintiff whether he is making a claim for property damages as a result of the accident, whether he’s making a claim for loss of income, and whether he’s making a claim for loss of future income. Based upon the reasoning articulated in Rifkind, Plaintiff is not required to answer these questions seeking information about the legal claims Plaintiff is making.

Plaintiff avers that questions 13 and 22 invade his attorney-client privilege. Plaintiff provides that question 13 inquires why Plaintiff took photographs of a scar of his, while question 22 asks when Plaintiff first retained an attorney for this lawsuit.

Defendants contend that these communications are not inquiring of any communications between Plaintiff and his counsel.

It is not enough for a party to assert that something is protected as privileged, but rather the burden is on the party asserting the objection to prove the preliminary facts that show the attorney-client or work product protection applies. (Mize v. Atchison, T. & S. F. ry. Co. (1975) 46 Cal.App.3d 436, 447; see also Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494-95 [It is the burden of the objecting party to support the applicability of a particular privilege].)

Evidence Code § 952 provides: “As used in this article, ‘confidential communication between client and lawyer’ means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”

Although Plaintiff contends the questions are directly aimed at the attorney-client privilege, the questions on their face are not seeking information concerning any communications between Plaintiff and Plaintiff’s counsel. Rather, the questions ask why Plaintiff took a picture of a scar of his and when Plaintiff retained counsel. Plaintiff fails to carry the burden of establishing the existence of the attorney-client privilege as to these questions, as Plaintiff does not show Defendants are inquiring about any confidential communications between Plaintiff and Plaintiff’s counsel. Nonetheless, nothing in this order should be interpreted as requiring Plaintiff to answer any questions regarding the substance of any communications between Plaintiff and his counsel.

Plaintiff avers that question 23 asking what Plaintiff hopes to gain from this lawsuit is abusive and not designed to obtain any admissible evidence. Defendants, on the other hand, assert the question is relevant and may assist the parties in pursuing a potential resolution.

Plaintiff fails to cite any authority holding that Plaintiff may refuse to answer a question such as question 23 on the basis that it is abusive. As Defendants articulate, the question is relevant to Plaintiff’s claims and may assist the parties in pursuing an informal resolution of the matter. Plaintiff does not establish the question seeks any privileged material or communications.

Plaintiff is ordered to appear for the deposition to answer the subject questions at a date, time, and location to be noticed by Defendant. Defendant must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service).

Sanctions are mandatory unless the finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2025.480(j).)

Here, because the motion is granted to a significant extent, the court finds sanctions warranted. Furthermore, while Plaintiff contends sanctions are not warranted because Defendants failed to meet and confer, the deposition transcript shows that Defendants’ counsel attempted to meet and confer during the deposition regarding Plaintiff’s objections, but Plaintiff’s counsel would not meet and confer on the questions.[1]

Defendants request sanctions of $6,737.50 against Plaintiff and Plaintiff’s counsel. Defendants are not awarded the full amount. Defendants are awarded four hours for preparing the motion, two hours for the reply filed July 22, 2022, and one hour for appearing at the hearing on this matter all at the reasonable rate of $200 per hour, for a total attorney’s fees award of $1,400.00.

Sanctions are sought and imposed against Plaintiff and Plaintiff’s counsel of record, jointly and severally. Plaintiff and Plaintiff’s counsel of record are ordered to pay sanctions to Defendants, by and through counsel of record, in the total amount of $1,400.00, within twenty days.

Hon. Audra Mori

Judge of the Superior Court

[1] For example, in discussing Question 6, the following exchange took place:

Mr. Brown: You don’t – you don’t really need to explain why you’re asking your question. When I object and instruct him not to answer, that’s going to be the end of it.

Mr. Van Buren: Well, I’m, in good faith, attempting to meet and confer on the records with you. So that’s the end of it?

Mr. Brown: Yes.