Judge Gregory Keosian, Case Number: 22STCV22185, Date: 2023-12-06 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV22185, Date: 2023-12-06 Tentative Ruling

Case Number: 22STCV22185 Hearing Date: April 15, 2024 Dept: 61

Plaintiff John N. Drooyan’s Motion to Compel Further Responses to Requests for Production from Defendant Marathon HVAC Service is GRANTED. No sanctions are awarded..

I. MOTIONS TO COMPEL FURTHER

A party may demand the inspection, copying, testing, or sampling of “documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” (Code Civ. Proc. § 2031.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The demanding party may move for an order compelling further response to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310(a).) “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand,” and “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310(b).)

A motion to compel a further response to an inspection demand must set forth specific facts showing “good cause” justifying the discovery sought by the inspection demand. (Code Civ. Proc., § 2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 444.) Once the moving party demonstrates good cause for the discovery, the burden is on the responding party to justify any objection or failure to fully respond to the inspection demand. (Coy v Superior Court (1962) 58 Cal.2d 210, 220.)

Plaintiff John N. Drooyan (Plaintiff) seeks to compel further responses to Requests for Production No. 21–28, which seeks all photos and videos taken or recorded by Defendant Marathon HVAC, Inc.’s (Defendant) counsel or agents during a site inspection of Plaintiff’s property on October 14, 2022. Defendant responded with objections based on privilege and work-product.

Pictures taken by an attorney or their expert may fall within the protections of the work-product. The statute defining the work-product doctrine gives absolute protection to writings that reflect “an attorney’s impressions, conclusions, opinions, or legal research or theories,” and gives qualified protection to other attorney “work product.” (Code Civ. Proc. § 2018.030.) In certain circumstances, “disclosing a list of witnesses from whom an attorney has taken recorded statements may, in some instances, reveal the attorney's impressions of the case.” (Coito v. Superior Court (2012) 54 Cal.4th 480, 501.) Disclosure of photos taken by an attorney or that attorney’s expert may similarly reveal attorney impressions or theories, if the circumstances of the case are such as to make the photos suggestive of a given attorney opinion. Although the requests differentiate between photos and videos taken by Defendant’s attorney and recordings made by “any person other than Defendant’s counsel,” the fact that Plaintiff is seeking recordings within Defendant’s possession means any such recordings not taken by the attorney were taken by their experts or other agents. The work-product doctrine preserves from disclosure not simply the work-product of the attorney themselves, but also the attorney’s agents or investigators. (Coito v. Superior Court (2012) 54 Cal.4th 480, 495.)

Plaintiff argues that Defendant waived the objections by tardy response, since he received the responses on January 18, 2024, rather than the due-date of January 14, 2024. An untimely response may waive objections. (See Code Civ. Proc. § 2031.300, subd. (a).) However, because the January 14, 2024 deadline fell on a Sunday, with the following Monday a court holiday, and the time in which to respond to Plaintiff’s email-served discovery is extended by two court days per Code of Civil Procedure § 1010.6, subd. (a)(3)(B), the actual deadline was January 17, 2024. (Ortega-Smith Decl. ¶ 8.) This is the date indicated on the proof of service for Defendant’s responses. (Ortega-Smith Decl. Exh. A.)

However, other factors here militate against a finding that the work-product protection applies. First, as Defendant acknowledges, the site inspection where the recordings were taken took place at Plaintiff’s dwelling, while “Plaintiff was present and observed every aspect of the inspection that occurred at his property.” (Ortega-Smith Decl. ¶ 15.) It is doubtful that the work product doctrine could preserve an attorney’s photographs in such a situation, as the doctrine is a rule against discoverability and disclosure, which may be waived by an intentional disclosure inconsistent with the privilege, particularly to one who “has no interest in maintaining the confidentiality ... of a significant part of the work product.” (Laguna Beach County Water Dist. v. Superior Court (2004) 124 Cal.App.4th 1453, 1459.) When the information to be protected by the privilege was itself obtained in full view of the adverse party, that privilege would have been waived, if it ever applied at all.

Second, Plaintiff is not seeking a particular strategic selection of the photos or videos taken, such as the photos the expert or Defendant intend to rely upon in defending their case. He is instead seeking “any and all photographs taken” at the site inspection and, per Defendant, in his presence.

The parties do not present much in the way of authority supporting their positions except to cite the relevant statutes and framing case law. However, there is one federal case involving the application of photographs taken during an inspection conducted in the presence of an adverse party, in which the court determined that there could be no expectation of confidentiality for such images, and therefore the work product doctrine did not apply. (See Estate of Mazon v. County of Riverside (C.D. Cal., Mar. 26, 2014, No. EDCV122240DMGSPX) 2014 WL 12966419, at *5–6 [“In effect, by conducting the jail inspection, DSI is waiving its work product protection as to any images it takes. DSI is not, of course, required to conduct this inspection. But if it wishes to conduct the inspection, the images it takes during the inspection will not be entitled to work product protection.”].) This decision is in accord with the court’s reasoning above.

The motion is therefore GRANTED.

II. SANCTIONS

Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further response to interrogatories, requests for production of documents, or requests for admission, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).)

Plaintiff seeks sanctions in the amount of $1,600.00, representing four hours of attorney work at $500 per hour. (Drooyan Decl. ¶ 13.) However, because Plaintiff is an attorney representing himself, no such fees are available. (See Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1180.) Thus no sanctions are awarded.