Judge Christian R. Gullon, Case Number: 23PSCV01877, Date: 2025-04-03 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV01877, Date: 2025-04-03 Tentative Ruling

(1) Adrian Zavala’s MOTION TO QUASH OR TO MODIFY AND LIMIT DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS OF DEFENDANT’S ATTORNEY; ALTERNATIVE REQUEST FOR PROTECTIVE ORDER AND FOR MONETARY SANCTIONS is GRANTED as the instant four discovery motions resolve the matter.

(2) Travelers’ MOTION TO COMPEL AMENDED RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE is GRANTED.

Zavala has waived attorney-client privilege as the purported settlement agreement is at the crux of his case and Travelers’ case.

On June 23, 2023, Plaintiff Adrian Juan Zavala filed suit against Defendants Coastal Pacific Food Distributors (“Pacific Food”) and David Alcantar for (1) Motor Vehicle and (2) General Negligence.

On January 17, 2024, Travelers filed its action against Zavala for breach of contract.

On March 5, 2024, Plaintiff filed an amendment to the complaint naming Premium Transport Staffing, Inc. (“Premium Transport”) as Doe 1.

On March 20, 2024, Plaintiff filed amendments to the complaint naming Penske Truck Leasing Co., L.P. (“Penske”) as Doe 2 and Penske Truck Rental, an entity of unknown form, as Doe 3.

On May 8, 2024, Premium Transport and Penske filed their answer to Plaintiff’s complaint.

On January 24, 2025, Zavala filed his oppositions to Travelers’ discovery motions.[2]

On January 30, 2025, Travelers filed their replies in support of their discovery motions.

On February 7, 2025, Travelers filed its opposition (filed in the related case) to the motion to quash.^{^[3]}

The crux of the dispute between the parties is this: Travelers alleges that on April 25, 2023, Zavala’s prior attorney, Eric S. Chun of the Avrek Law Firm, called Travelers and accepted Travelers’ $415,000 settlement offer (Complaint ¶18) whereas Zavala claims otherwise: “Zavala’s attorneys were not authorized to settle on Zavala’s behalf his claims against either or both of Costal [sic] and Alcantar….The Complaint fails to allege that Zavala expressly authorized his attorney to enter into any settlement agreement or expressly consented to any settlement….” (First Amended Answer filed 5/16/24 at pp. 2-24.) Accordingly, Travelers seeks to learn more about Zavala’s primary defenses to its breach of contract claim. So, on 3/26/24, Travelers served basic discovery aimed at uncovering (i) the bases for his claim that he never authorized his attorneys to settle his claim, (ii) communications between Zavala, Travelers, and his attorneys, and (iii) the events surrounding the settlement of Zavala’s claims. (See e.g., RFA Motion p. 1:17-22.)

In its opposition to the discovery motions, Zavala cites to Levy v. Superior Court (1995) 10 Cal.4th 578 to support his proposition that his expressly consent to settlement is required, but the case isn’t entirely instructive. In Levy, the attorneys for both parties “started to discuss settlement of the case,” (id. at p. 580) with, what appears to be, no consent from the clients to even engage in settlement discussion. The lack of the client’s consent to settlement negotiations is perhaps evidenced by the cases the appellate court relied upon including Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396 which involved a medical malpractice case wherein the plaintiff’s attorney “requested an agreement from defendants that the case be submitted to arbitration,” which was approved by the court, but the plaintiff did not “ learn of this stipulation, nor of the dismissal of the supervising physician, for nearly three months.” (Id. at p. 400.) Even assuming in Levy that the clients consented that their attorneys engage in settlement talks, one of the clients expressly “refused to sign the formal settlement agreement.” (Id. at p. 580.) Here, Zavala claims that attorneys “were not authorized to settle on Zavala’s behalf his claims against either or both of Coastal and Alcantar.” (May 16, 2024 First Amended Answer, at 2:17-21.) But if Zavala did not authorize any settlement discussions, then it is unclear why there were so many. According to Travelers’ complaint, the following is a timeline of discussions:

- On November 28, 2022, Zavala, through the Avrek Law Firm, made a written offer to settle and release all claims against Travelers’ insureds (Coastal Pacific and Alcantar) arising out of the accident. (¶12)

- On April 3, 2023, Travelers spoke with Eric S. Chun about Zavala’s demand. Travelers offered Zavala $250,000 to settle his claims against Coastal Pacific and Alcantar. Chun responded that he would discuss the offer with Zavala. (¶13)

- On April 5, 2023, Chun left a voicemail at Travelers stating that Zavala was willing to settle his claims against Coastal Pacific and Alcantar for $700,000. Travelers responded by email that it would offer $300,000 to settle. (¶14)

- On April 6, 2023, Chun sent Travelers an email stating that Zavala had rejected Travelers’ offer but reduced his demand to $675,000. Travelers responded with an offer of $325,000. (¶15)

- On April 13, 2023, Travelers again spoke with Chun about Zavala’s demand. Chun said that Zavala would settle for $500,000. Travelers responded with a $400,000 offer. Chun said that Zavala wanted a little more than that. The next day, Travelers sent Chun an email offering to settle Zavala’s claims against Coastal Pacific and Alcantar for $415,000. (¶16)

- On April 24, 2023, Travelers again spoke with Chun about Zavala’s demand. Chun asked if Travelers would offer $450,000. Travelers said it would not and repeated its $415,000 offer. Chun said that he would discuss the offer with Zavala. (¶17)

- On April 25, 2023, Chun called Travelers and said that Zavala’s accepted Travelers’ $415,000 offer. Travelers agreed to prepare a proposed release of Zavala’s claims against Coastal Pacific and Alcantar. Later that day, Travelers sent Chun an email confirming the agreement and attaching a proposed release. (¶18)

- On May 2, 2023, Travelers received a voicemail from Chun explain[ing] that he had to fulfill his firm’s requirements and try to get more money. (¶19)

- On July 6, 2023, Zavala’s lawyers sent Travelers an email denying the settlement agreement. (¶21) The email stated this was Zavala’s “FINAL demand for policy limit.” (¶21, capitalization original.)

This timeline^{^[4]} suggests multiple things: (i) Zavala made the first settlement offer; (ii) both parties’ strong desire to settle as evidenced by discussions elapsing about four months (end of November to end of April); and (iii) the gaps between Travelers making offers and responses from Chun indicates that was communicating the settlement offers with Zavala and waiting for Zavala’s consent on settlement offers. All in all, if Zavala was seeking the policy limit of $750,000 from the get-go, then why were their offers for less? Even if there was a settlement agreement that was limited in scope because Zavala believed that Travelers’ offer was only for past medical expenses, and so represents an incomplete settlement of his claims, both arguments concede and that his lawyers had authority — to one extent or another — to negotiate settlement on Zavala’s behalf. (Reply RFA p. 5:4-8.)^{^[5]} Whatever the truth, that is to be deduced at trial, but to do that, discovery of what communications were made is necessary. And by taking these positions Zavala places his communications with Avrek at the center of his defense. (Reply RFA p. 5:8-9.) Waiver is established by a showing that “the client has put the otherwise privileged communication directly at issue and that disclosure is essential for a fair adjudication of the action.” (Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 40.)^{^[6]}

Yet, despite communications between Zavala and the Avrek Firm forming the very basis of this litigation, as to nearly all discovery, Zavala claims attorney-client privilege and attorney work product. (See e.g., Opp. to RFA p. 7:19-21 [“Travelers is wrong. Zavala’s denials do not waive attorney-client privilege and do not waive protection of his attorney’s work product.”].) As summarized by Travelers, “Zavala can’t deny the existence of a settlement agreement based on a lack of authority and at the same time use privilege to prevent Travelers from learning whether he’s telling the truth.” (Reply RFA Motion p. 4:23-26.) The court agrees. Echoing the court in Wellpoint Health Networks, Inc. v. Superior Ct. (1997) 59 Cal. App. 4th 110, “[t]he defendant cannot have it both ways. If it chooses this course, it does so with the understanding that the attorney-client privilege and the work product doctrine are thereby waived.” (Id. at p. 128.) Even setting aside that Travelers’ complaint focuses on the purported settlement agreement, so too does Zavala’s own action put it at issue. The 9/25/23 answer of COASTAL PACIFIC FOOD DISTRIBUTORS, INC. (sued erroneously herein as COASTAL PACIFIC FOOD DISTRIBUTORS) sets forth the following:

15th COA: Plaintiff’s action and recovery against Defendants is barred by the doctrine of Performance (Civil Code §1473, et al., including §1476), in that a settlement reached and agreed upon by the parties, and Defendants’ performance of their payment obligation under said agreement, including in the manner as directed by Plaintiff as creditors, extinguished any obligation Defendants owed to Plaintiff.

FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE DEFENDANT ALLEGES: 18. Plaintiff’s action and recovery against Defendants is barred in whole or in part by Civil Code §1511, et al. (Prevention of Performance), including §1512, in that the parties reached a settlement and, if Defendants performance of payment under the agreement is prevented by Plaintiff, the creditors, Defendants are entitled to all the benefits (including a release and/or dismissal of this action) which they would have obtained if the agreement had been performed by all parties. FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE DEFENDANT ALLEGES: 20. Plaintiff’s action and recovery against Defendant is barred in whole or in part by a good faith settlement agreement reached and agreed upon by the parties, as a result of which any obligations by Defendants to Plaintiff or to any co-defendants are extinguished.
22. Plaintiff's claim is barred and plaintiff is precluded from maintaining this action by the doctrine of collateral estoppel, which precludes Plaintiff from disputing that a settlement was reached that bars this lawsuit. (Answer (¶¶16, 18, 20, 22, emphasis added.)

Accordingly, this purported settlement is also directly relevant to Zavala’s own action. Thus, Zavala’s argument that he did not place the communication at issue is “facile at best.” (RFA Motion p. 7:22-23.) That aside, the court poses this: if Zavala is maintaining that he did not communicate with his attorneys about settling for less than the policy limit, then what is protected? Framed differently, if there were no communications between Zavala and his attorneys at Avrek, then there is nothing to protect. All in all, the court determines that Zavala has waived his attorney-client privilege such that he is to provide further responses to any discovery wherein he asserts the attorney-client privilege and work-product doctrine as his objection. The court turns to each separate discovery as set forth in the separate statements (SS).

As to most, the basis of the motion is unclear as Zavala has answered most. For example, as to RFA No. 5[“Admit that TRAVELERS responded to YOUR November 16, 2022 offer to settle YOUR claims against Coastal Pacific Food Distributors and David Alcantar by, in part, requesting additional medical documentation to corroborate YOUR injury claims”], his JULY 3 FURTHER RESPONSE is “Deny.” (RFA SS p. 2:22-23.) The same goes for RFA No. 6, “Admit that on April 14, 2023, TRAVELERS offered, “[a]fter a thorough and exhaustive review of all meds and bills,” to settle YOUR claims against Coastal Pacific Food Distributors and David Alcantar in exchange for a $415,000 payment from TRAVELERS.” (RFA SS p. 6:25-26.) Even as to some though they may contain objections, the responses ultimately provide an objection-less response. Take for example RFA No. 8 which “REQUEST FOR ADMISSION NO. 8: Admit that YOU received a letter from TRAVELERS dated April 25, 2023, that confirmed the Avrek Law firm had agreed to settle YOUR claims against Coastal Pacific Food Distributors and David Alcantar in exchange for $415,000.” To that, on July 3, Zavala responses with the following: “Not likely to lead to the discovery of admissible evidence. Privileged and confidential settlement communication pursuant to California Evidence Code § 1152, and 1154. Violates attorney-client privilege. Without waiver: Deny.” (SS p. 10:21-23, emphasis added.) As for RFAs Nos. 9 and 10, the court agrees with Zavala that the question is somewhat vague.

REQUEST FOR ADMISSION NO. 9: Admit that, at all times relevant to this litigation, YOU were competent to retain attorneys to represent YOU regarding YOUR claims against Coastal Pacific Food Distributors and David Alcantar.

REQUEST FOR ADMISSION NO. 10: Admit that, at all times relevant to this litigation, YOU were competent to authorize your attorneys to offer to settle YOUR claims against Coastal Pacific Food Distributors and David Alcantar.

Here, as Zavala does not require a court appointed conservator or guardian ad litem, the term “competent,” which is undefined, can be construed as vague and ambiguous. In any event, Zavala does respond: “Without waiver: Denies as framed. Responding Party admits that he is a competent adult to the extent that means Responding Party does not require a court appointed conservator or guardian ad litem.” (RFA SS No. 9, p. 11:9-11.)

FORM INTERROGATORY NO. 15.1: Identify each denial of a material allegation and each special or affirmative defenses in your pleadings, and for each: (a) State all facts on which you base the denial or special or affirmative defense; (b) State the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (c) Identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.

FORM INTERROGATORY NO. 17.1: Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all the facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing. (emphasis added.)

To both, Zavala responds with a host of objections, such as that the interrogatory “seeks to ascertain the work product of expert witnesses,” “calls for an abstract and/or compilation of Defendant’s investigation, which would be considered attorney work product privilege[,]” and “improperly seeks the responding party’s legal conclusions[.].” However, as noted by Travelers and not otherwise addressed in reply, it is unclear how the routine interrogatories specially crafted by the Judicial Council implicate protected information. (SS p. 5, citing Code Civ. Proc. § 2030.240(b) (“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.”). In fact, “[s]tating facts and identifying witnesses and documents is not protected by the work product doctrine or any privilege, [] is the exact sort of information discovery is aimed to uncover.” (SS p. 5, citing Hernandez v. Superior Ct., 112 Cal.App.4th (2003) 285, 301.) To the extent that Zavala argues Hernandez is inapposite as it does not deal with interrogatories but rather a case management order, that isn't an fair reading of the case. (Opp. p. 15:1-4.) First, Hernandez did involve interrogatories. (Id. at pp. 290-290 [“On July 17, 2002, after petitioners provided further answers to the interrogatories, the trial court issued a case management order with regard to scheduling remaining discovery. The court ordered that defendants be permitted to serve supplemental interrogatories and document requests “to be directed squarely to the issues, and to be responded to promptly and fully, and without evasion.”], emphasis added.) Next, while the trial court issued a case management order, it did so because Hernandez involved a complex case with more than 100 defendants. (Id. at p. 299.) Accordingly, the court issued a case management order within its “broad discretion to fashion suitable methods of practice in order to manage complex litigation.” (Id. at p. 301.) That same page discussed the purpose of pretrial discovery, which is to obtain all of the facts relative to a claim or defense such that a party responding to discovery requests may be required to state whether or not he or she makes a particular contention, and to disclose the evidentiary facts underlying each such contention, as well as each allegation of his complaint or affirmative defense. (Id. at p. 301.) In any event, as noted above the attorney client privilege has been waived such that further responses are ordered.

INTERROGATORY NO. 1: State the date, time, participants to, and substance of every unwritten COMMUNICATION that YOU had with TRAVELERS concerning your claims against Coastal Pacific Food Distributors and David Alcantar. (The terms “YOU” and “YOUR” were previously defined by Travelers’ Definitions refer to defendant Adrian Juan Zavala and anyone acting on her behalf.)

INTERROGATORY NO. 2: State all facts that support YOUR contention that YOU did not accept TRAVELERS’ offer to settle YOUR claims against Coastal Pacific Food Distributors and David Alcantar in exchange for $415,000 on April 25, 2023.

INTERROGATORY NO. 3: State all facts that support YOUR contention that YOU believed TRAVELERS’ offer to settle YOUR claims against Coastal Pacific Food Distributors and David Alcantar in exchange for $415,000 was only for past medical expenses.

- Critical parties to any settlement were not included in any agreement. There were unilateral and bilateral mistakes of fact.

- To the extent that there was a settlement agreement, which is disputed, it only included past damages as of the date of the alleged settlement, not damages after that date nor damages still in the future…Responding party’s injuries and past medical specials alone are approximately $415,000…The approximate cost of the surgery, surgical center, surgeon/physician fees, anesthesia and intraoperative monitoring alone was close to $300,000. This does not account for all the prior conservative care and the pain management before surgery. The past medical specials alone are near the $415,000 figure “offered.”

- Improper contention question. The request is vague, ambiguous, burdensome, and harassing. The request is unintelligible.

- The request is not likely to lead to the discovery of admissible evidence at the time of trial.

- Responding party further objects that the request calls for information protected from disclosure based on the attorney client privilege and attorney work-product privilege.

Here, the court agrees with Travelers that further responses are warranted. For one, again, as noted above, attorney-client privilege and work product have been waived. (See also SS p. 11, citing Britt v. Super. Ct., 20 Cal.3d 844, 858 (1978) [“In a number of contexts in which evidentiary privileges generally provide a cloak of confidentiality, exceptions to such privileges have been recognized as to information that relates to an issue which has been posited by the party claiming the privilege’s protection.”].) Second, as noted by Travelers, the interrogatories are relevant to Travelers’ claims against Zavala. (SROGs SS p. 10, citing Pac. Tel. & Tel. Co. v. Super. Ct. (1970) 2 Cal. 3d 161, 175 (“[W]hether the defense is a valid one or not, the parties are entitled to undertake discovery with reference to the matters potentially involved.”). Furthermore, admissibility at trial is not the test for whether information is discoverable; only whether that information “might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement.” (SS pp. 10-11, citing TBG Ins. Servs. Corp. v. Super. Ct. (2002) 96 Cal.App.4th 443, 448-49.) Ultimately, Zavala has provided legal conclusions, not facts, but a party must fully disclose the evidence known to the responding party at the time of their responses. (SS p. 12, citing Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 106; see also Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 842.)

Therefore, the Court orders Zavala to provide amended, code-compliant responses to Travelers’ SROGs.^{^[8]}

REQUEST FOR PRODUCTION NO. 1: All DOCUMENTS that support YOUR affirmative defenses.

REQUEST FOR PRODUCTION NO. 2: All DOCUMENTS that constitute, evidence, reflect, refer to, or relate to YOUR COMMUNICATIONS with TRAVELERS concerning YOUR claims against Coastal Pacific Food Distributors.

REQUEST FOR PRODUCTION NO. 3: All DOCUMENTS that constitute, evidence, reflect, refer to, or relate to YOUR COMMUNICATIONS with TRAVELERS concerning YOUR claims against David Alcantar.

The court incorporates by reference its arguments with respect to RFPs. However, with the RFPs, on January 2, 2025, Zavala did produce a privilege log. (See Opp., Ex. C, starting at p. 38 of 99 of PDF.) In particular, the privilege log identifies “approx. 47 text messages from 2/2022 to 9/9/2023” between Zavala and “case manager at Avrek” and claims attorney-client privilege, work product protections, and constitutional privacy rights. This privilege log is deficient, namely as it fails to identify who at Avrek sent and received those messages. (See e.g., Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1125 [“The purpose of a “privilege log” is to provide a specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production. [Citation.] The purpose of providing a specific factual description of documents is to permit a judicial evaluation of the claim of privilege.’”].)

In any event, as the attorney-client privilege has been waived, the court orders Zavala to produce amended, code-compliant responses.

Based on the foregoing, the RFA motion is moot; the FROGs and SROGs motions are granted; and the RFP motion is granted. With that, the motion to QUASH OR TO MODIFY AND LIMIT DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS OF DEFENDANT’S ATTORNEY is GRANTED as the instant discovery should provide Travelers with sufficient evidence.

^{^[1]} Zavala also filed a request for judicial notice (RJN) of (A) Travelers’ Complaint in Travelers Property and Casualty Company of America v. Adrian Juan Zavala which was filed in the U.S. District Court for the Central District of California, Case No. 5:23-cv-01602-GW-SP and (B) the January 9, 2024, Order of the U.S. District Court for the Central District of California granting Zavala’s motion to dismiss Traveler’s Complaint. While the court grants the RJN pursuant to Evidence Code § 452(d), as that authorizes this court to take judicial notice of ‘any court record of the United States,’ the district court’s 1/9/24 order is inapposite to the instant motion. While Zavala states that the 1/9/24 order supports a finding of no enforceable settlement, not necessarily. The order/ruling is regarding FRCP Rule 12(b)(7) (i.e., that certain unjoined persons were "required parties").

[2] Zavala’s request for monetary sanctions against Travelers is denied as the parties have engaged in meet and confer efforts to resolve the matter and the parties’ briefs illustrate a fundamental disagreement as to whether the attorney client privilege was waived.

^{^[3]} The court requests that when a motion be filed in one case, that any responsive filings to that motion be labeled with the correct case number so that the filings can also be filed in that case. Here, for example, the opposition to this instant motion is filed in the related case. Even with the discovery motions filed in Travelers’ case, the oppositions are filed in Zavala’s case.

^{^[4]} And there appears to be more in the timeline as Zavala’s responses to certain discovery indicate that there are letters between Avrek Law and Travelers that date back to August 4, 2021, August 6, 2021, August 9, 2021, September 14, 2021, November 16, 2022, and December 1, 2022. (See e.g., SS SROGs p. 4.)

^{^[5]} See e.g., Response to Separate Statement (SS) FROGs No. 15.1: “At or about the time in question, Responding Party authorized the settlement of Responding Party’s claims for Coastal Pacific Food Distributors and David Alcantar’s insurance policy limits assuming any other terms of such a settlement agreement were agreeable to Responding Party. Accordingly, there was no meeting of the minds, no contract entered into, no agreed upon settlement and release, no 1542 waiver, and no understanding regarding if any settlement would encompass past medical specials, future medical specials or otherwise. With respect to the alleged agreement there may also have been a unilateral and/or bilateral mistake.” (emphasis added).

^{^[6]} To the extent that Zavala argues Southern Cal. Gas Co. is inapposite as there the California Supreme Court held that the utility had not waived attorney client privilege and vacated the commission’s order for the utility to produce attorney-client privileged documents, the case is one of the most relevant and heavily cited on the issue of whether the attorney-client privilege has been waived. (According to Westlaw, the only other case by the California Supreme Court that is more relevant than Southern Cal. Gas Co. is Mitchell v. Superior Court (1984) 37 Cal.3d 591.

^{^[7]} To the extent that Travelers asks for the court to prevent Zavala from relying on responsive information, contentions, or other relevant facts that he fails to identify should he not comply with the order, that issue is not yet ripe. (See Code of Civ. Proc., section 2030.300 subd., (e): “If a party then fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).”)

^{^[8]} As with the FROGs, Travelers seeks an order precluding Zavala from relying on any information that he refuses to produce. That issue is not ripe at this juncture. As to alternative relief, Travelers proposes that the court could not waive the attorney-client privilege but that Zavala loses his ‘lack-of-authority’ defense. “In other words, Zavala can keep communications about settlement authority secret, but he can’t testify (or have anyone else testify) that his lawyers lacked authority to settle his case.” (Reply SROGs p. 10:20-23.) The parties may elaborate on this alternative form of relief at the hearing.