Judge: Frank M. Tavelman, Case: 23BBCV00117, Date: 2024-09-06 Tentative Ruling

Case Number: 23BBCV00117    Hearing Date: September 6, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL FURTHER RESPONSES

MP:   Zane and Gina Cazares (Defendants) / Jonathan Lee (Plaintiff)

RP:    Jonathan Lee (Plaintiff) / Zane and Gina Cazares (Defendants)

*Each party has filed a motion to compel against the other parties.

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Jonathan Lee (Plaintiff) brings this action against Zane and Gina Cazares (Defendants). Plaintiff alleges he was injured by virtue of Defendants’ negligent operation of a motor vehicle.

Before the Court are two motions to compel further responses to discovery demands. These motions are as follows:

·         Defendant moves to compel Plaintiff’s further responses to Special Interrogatories (SPROG) Set Two Nos. 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, and 56. Plaintiff opposes; Defendants have filed no reply as of September 4, 2024.

·         Plaintiff moves to compel Defendants’ further responses to his Request for Production (RFPD) Set Four Nos. 33-62. Defendants oppose and Plaintiff replies.

ANALYSIS: 

I.                    LEGAL STANDARD 

Motion to Compel Further Responses to Interrogatories

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 the responses contain: (1) answers that are evasive or incomplete, (2)¿an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response, or (3) unmerited or overly generalized objections.  (C.C.P. §¿2030.300(a).) The responding party has the burden of justifying the objections thereto. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-21.)

Motion to Compel Further Responses to Request for Production

A motion to compel further responses to RFPD may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive, or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections.  (C.C.P. § 2031.310(c).) 

A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See C.C.P. § 2031.310(b)(1).) In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.”  

If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.) 

II.                 MERITS

SPROG

Defendants move to compel Plaintiff’s further responses to SPROG Set Two Nos. 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, and 56. Each of these SPROG requests medical information from Plaintiff relating to any medical provider he has utilized over the last 10 years. (See Berdan Decl. Exh. A.) Plaintiff responded to each of these SPROG by objecting that they are (1) burdensome, oppressive, and overbroad, (2) seek improper medical records/medical history, (3) are irrelevant, and (4) are repetitive.

Plaintiff argues, and the Court agrees, that Defendants’ separate statement is not compliance with C.R.C. Rule 3.1345(c)(2). This rule requires a moving party to include the text of each response to a disputed discovery demand in the separate statement. Here, Defendants have interposed language from Plaintiff’s responses to meet and confer efforts rather than Plaintiff’ actual responses to the SPROG. Regardless, the Court finds denial on this ground would only result in the delay of an actual resolution of the underlying discovery dispute.  The Court believes it can resolve this issue without significant use of judicial resources, but Defendant is admonished to comply with the Rules of Court regarding these matters in the future.

Of primary importance to this motion is Plaintiff’s contention that Defendants have already propounded interrogatories seeking this same information in their SPROG Set One Nos. 9 &10. Plaintiff argues that Defendants are impermissibly seeking to “restart the clock” on their medical discovery despite not having moved to compel further responses regarding SPROG Set One. In order to examine this claim, the Court finds a brief summary of the discovery efforts necessary. 

On May 24, 2023, Defendants propounded their SPROG Set One on Plaintiff. (See Berdan Decl. Exh. A.) On June 27, 2023, Plaintiff served his verified responses to SPROG Set One, consisting primarily of objections. (See Aziev Decl. Exh. 1.) After various meet and confer efforts, on May 31, 2024, Plaintiff served his supplemental responses to Defendants’ SPROG Set One No. 9. (See Aziev Decl. Exh. 7.)

Defendants’ SPROG Set One No. 9 requested the following information:

Please IDENTIFY all HEALTH CARE PROVIDERS with whom YOU treated from the ten (10) years preceding the INCIDENT alleged in the Complaint on file herein until the present.

Plaintiff’s supplemental response to this SPROG indicated he had treated with “Orthopedic Surgery Specialists” in Burbank and “Providence Saint Joseph Medical Center” in Burbank. (See Aziev Decl. Exh. 7 p. 10.)

Defendants’ SPROG Set Two also requests that Plaintiff provide the information for any medical provider he has treated with 10 year prior to the incident but parcels the request out into specialized medical proffessionals (i.e. Urgent Care Facility, Chiropractor, Neurologist, Orthopedist, ENT, Pain Management Physician, and Healthcare Provider). (See Berdan Decl. Exh. A.) Plaintiff responded with objection only responses. In the meet and confer efforts, counsel for Plaintiff reiterated that he would not provide further responses to SPROG Set Two, but that he would provide supplemental responses to SPROG Set One with the requested information. (Berdan Decl. Ex. D.)

In arguing that Defendants SPROG Set Two are improper, Plaintiff relies primarily on Prof'l Career Colleges, Magna Inst. v. Superior Court (1989) 207 Cal.App.3d 490, 493. In that case the plaintiff propounded a set of interrogatories on the defendant, which included an interrogatory seeking the addresses of students who enrolled in a program during a specified period. (Id. at 492.) The defendant objected and the plaintiff made no motion to compel a further response. (Id.) A month and a half later, the plaintiff propounded a second set of interrogatories on the defendant with mostly new interrogatories, but also included an interrogatory that sought essentially the same information as the interrogatory in the first set (i.e., addresses of students who enrolled in a program during a specific period). (Id.) After the defendant objected on the ground the new interrogatory was the same as the old interrogatory in the first set, “the plaintiff finally filed and served a motion to compel ....” (Id.)

On appeal, the court held the motion to compel further response to the new interrogatory was time-barred. (Id. at p. 494.) The court reasoned “it would be an absurdity to say that a party who fails to meet the time limits of section 2030 may avoid the consequences of his delay and lack of diligence by propounding the same question again.” (Id.)

Here, the Court finds the situation analogous to that in Career Colleges. Defendants issuance of SPROG Set Two, after failing to compel further responses SPROG Set One, constitutes an attempt to reset the clock on discovery. The relevant questions in SPROG Set Two seek identical information in substance, even if Defendants have slightly altered their form.

In their moving papers, Defendants argue that during Plaintiff’s December 5, 2023 deposition, it became clear that he had not provided a complete list of medical providers. (See Mot. p. 3.). Defendants do not attach any excerpt from the deposition to their motion, nor does this claim appear in their counsel’s declaration in support. Defendants have provided no explanation as to why they did not move to compel further responses after conducting Plaintiff’s deposition. Nor do Defendants provide an explanation as to why Plaintiff’s supplemental responses were insufficient.

Given the duplicative nature of SPROG Set Two Nos. 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, and 56 and given that Plaintiff has provided supplemental responses to SPROG Set One No. 9, the Court finds no good cause exists to compel further responses. Accordingly, Defendants’ motion is DENIED.

RFPD

Plaintiff moves to compel further responses to his RFPD Set Four Nos. 33-62. On April 12, 2024, Plaintiff served RFPD Set Four on Defendants. (Aziev Decl. Exh. 1.) On May 10, 2024, Defendants counsel requested a two-week extension to reply, which was granted. (Aziev Decl. Exh. 2.) On May 23, 2024, a second two-week extension was requested. (Aziev Decl. ¶ 3.) Plaintiff granted a one-week extension, making responses due June 4, 2024. (Aziev Decl. ¶ 3.) On June 4, 2024, Defendants served their responses consisting of objections only. (Aziev Decl. Exh. 3.) Plaintiff also states that no responsive documents have been provided. (Aziev Decl. ¶ 4.)

As a preliminary matter, the Court finds that Plaintiff has demonstrated good cause for further production. Plaintiff’s RFPD Set Four Nos. 33-62 pertain to any photographic/video evidence depicting Plaintiff on the date of the incident. These requests also ask Defendants to provide information about the equipment used to capture the photos/video and produce any such equipment for inspection.

Defendants do not dispute that the photos/videos are relevant, instead they argue that the make/model and physical inspection of the cameras which captured them are irrelevant. (Oppo. p. 5.) The Court agrees that Plaintiff has failed to demonstrate good cause for an inspection of any camera (RFPD Nos. 36, 40, 44, and 48), but the make and model may is discoverable as different cameras have different editing abilities and different lens that may affect the quality of a photograph. Plaintiff’s supplied reasoning for further production is to “establish foundation and authentication of such records, as well as to prevent improper video editing that will be shown to the jury at trial.” (Mot. p. 5.) While the Court agrees that make and model of the camera and any metadata from the photos/videos and the make/model of the camera used to take them is important to authentication, the Court does not see how an inspection of the actual camera is required. If Plaintiff’s concern is that the photos/videos have been doctored in any way, such concerns would be assuaged by the metadata produced by the camera in making the video. Plaintiff presents no argument specifically to good cause for physical inspection of any cameras.

The same can be said about RFPD No. 53, which requests documents reflecting the amount paid to independent investigators. (See Aziev Decl. Exh. 1, p. 4.) The Court fails to see the relevance of the amount of money Defendants may have paid to any private investigator who is not also a witness. Plaintiff has not established how such information has any connection to the authenticity of the documents.

Accordingly, the motion is DENIED as to RFPD Nos. 36 ,40, 44, 48, and 53.

Having determined that Plaintiff has demonstrated good cause for the remaining RFPD, the burden shifts to Defendants to justify their objections thereto. Defendants’ opposing papers only brief their objections on grounds of (1) work product privilege, (2) relevance, and (3) ambiguity. As discussed above, the Court finds the vast majority of the requests are relevant. As such, the Court shall examine the arguments speaking to privilege and ambiguity.

Though it is not entirely clear, it appears that Defendants object to the production of photos/videos on grounds that they were generated in an independent investigation and therefore qualify as attorney work product. Defendants argue that the photo/videos were obtained by an independent investigator hired at the direction of Defendants’ counsel. (Mot. p. 5.) Plaintiff argues that holding such documents to be privileged is consistent with Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166.

In Suezaki, plaintiffs sued defendants for personal injuries. Defendants’ attorneys hired an investigator to take motion pictures of one of the plaintiffs without his knowledge. (Id. at 170.) During discovery, plaintiffs compelled defendants to disclose the existence of the films, the fact the films had been taken by an independent investigator, and that the investigator delivered the films to defendants' attorney. (Id.) Plaintiffs moved for production and inspection of the films. (Id.) Defendants objected and argued the films had been communicated by defendants' investigator to defendants' attorney for confidential use in preparation of the defense. (Id.) The California Supreme Court found the found the film was not within the attorney-client privilege because it was not a communication from the defendant client to his attorney. (Id. at 177 [“The films are not a graphic representation of the defendants, their activities, their mental impressions, anything within their knowledge, or of anything owned by them. The films are representations of the plaintiff, not of the defendants. If they can be said to be a ‘communication’ in any sense of the word…”].) The Court further found that the films were not subject to the work-product privilege either, stating that “simply because the subject matter sought to be discovered is the ‘work product’ of the attorney it is not privileged.” (Id. at 177.)

The Court disagrees with Defendant’s position the requested photos/videos are protected as work product under Suezaki. The California Supreme Court opined that these types of communications are specifically not privileged as attorney work product, absent a greater showing. (See People v. Gillard (1997) 57 Cal.App.4th 136 [holding that photographs were privileged where photographs were taken specifically to convey confidential information from an investigator to an attorney.].) Here, Defendants have made no showing to demonstrate that the photos/videos are anything other than a depiction of Plaintiff. As such, Defendants’ objection on this ground is without merit.

As concerns the ambiguity objection, Defendants argue that the requests “seek any document, created for any purpose, by any person or entity, from any time since the make and model of the camera was invented.” (Opp. p. 6.) The Court finds this argument unpersuasive. Each of the requests is reasonably restricted to photos/videos of Plaintiff from the date of the incident and information about the equipment used to create them. The Court concludes that Plaintiff was sufficiently particular in seeking this information.

In short, the Court finds that Plaintiff has demonstrated good cause of further production as to RFPD Nos. 33-35, 37-39, 41-43, 45-47, 49-52, and 54-62. The Court also finds that Defendants have failed to justify their objections thereto. Accordingly, the motion to compel further responses is granted as to these requests.

Sanctions

The Court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response, 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. (C.C.P. § 2031.310(h).)

Here, the Court did not find Defendants’ argument persuasive in bringing/opposing the motions to compel further responses. Regardless, the Court does not find that Defendants acted without substantial justification. The Court notes that there are three more motions to compel further responses on its calendar in the coming weeks for this case. The Court encourages the parties to to meet and confer to resolve any discovery disputes informally, such that further consideration of sanctions is not required.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Jonathan Lee and Zane & Gina Cazares’ Motions to Compel Further Responses came on regularly for hearing on September 6, 2024 with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:  

DEFENDANTS’ MOTION TO COMPEL FURTHER RESPONSES TO SPROG SET TWO IS DENIED.

PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO RFPD SET FOUR IS GRANTED IN PART AND DENIED IN PART.

PLAINTIFF’S MOTION IS GRANTED AS TO RFPD NOS. 33-35, 37-39, 41-43, 45-47, 49-52, AND 54-62.

PLAINTIFF’S MOTION IS DENIED AS TO RFPD NOS. 36 ,40, 44, 48, AND 53.

FURTHER PRODUCTION DUE WITHIN 30 DAYS.   SANCTIONS REQUEST IS DENIED.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE: September 6, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles