Judge: H. Jay Ford, III, Case: 20STCV39889, Date: 2023-05-23 Tentative Ruling

Case Number: 20STCV39889    Hearing Date: May 23, 2023    Dept: O

Case Name:  Jeffrey v. City of Calabasas, et al.

SUBJECT:                 MOTION TO COMPEL FURTHER RESPONSES  

MOVING PARTY:   Plaintiff Suzanna Jeffrey  

RESP. PARTY:         Defendant/X-Complainant City of Calabasas

TENTATIVE RULING

            Plaintiff’s Motion to Compel Further Responses is DENIED as to Depo Questions 1 and 2 and GRANTED as to RFP Nos. 6, 11, 12, 17, 23, 33, 34, 35, 38, 39, 40, 42-45 and 55.  Plaintiff’s request for sanctions is DENIED. 

            “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”  CCP 2025.480(a).  If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories and RFAs.  See Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220–221; Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal.4th 245, 255.

Deposition Questions 1 and 2

            Plaintiff asked Defendant’s PMK “what…was wrong with the StepMill that caused the incident” and “you don’t know what…was wrong wit the StepMill that caused the incident.”  Defendant’s PMK responded that he did not know what caused the incident to occur and he was not sure if there was an investigation directly following the incident. Before the PMK responded, Defense counsel told the PMK that if he knew the answer to the question because attorneys told him pursuant to their investigation, the PMK should not disclose that based on work product protection.

            Defense counsel’s instruction or admonishment is an accurate statement of the work product doctrine.  To the extent the PMK was informed of the results of the investigation conducted by the attorney themselves or the attorney’s agents, such information is protected as attorney work product.  What caused the incident based on the investigation is a matter of opinion, either of the attorney or the attorney’s agent.  “As for the work-product doctrine, codified in Code of Civil Procedure section 2018, reports prepared by an expert as a consultant are protected until the expert is designated as a witness.  Then, the opponent may seek disclosure of the reports upon a showing of good cause…However, to the extent that said reports embrace counsel's impressions and conclusions, the work-product doctrine gives absolute protection to that information.”  Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1079.  Disclosing the attorney’s conclusion or impression as to what caused the accident is not the same as disclosing underlying facts that were merely in the attorney’s possession, which was the case in Smith v. Supr. Ct. (1961) 189 Cal.App.2d 6, 12 (“Even if the names and addresses of the witnesses were known only to the attorneys they would have to be disclosed on a proper interrogatory addressed to the party.”)

            Plaintiff’s Motion to Compel Further Responses to Deposition Questions 1 and 2 identified in the Separate Statement is DENIED.

RFP NO. 6—GRANT.  Casas was the individual hired by Defendant to inspect and maintain the equipment, including the StepMill involved in the accident.  Plaintiff is entitled to discovery regarding Casas and his relationship with Defendant.  Communications between Defendant and third parties regarding Casas fall within the broad standard of relevance applied in discovery.  The further response should not be limited solely to communications with third parties regarding Casas’ inspection of the gym equipment.  This would be too narrow given the broad scope of discovery allowable under CCP §2017.010.  Defendant also fails to establish the production would be unduly burdensome with specific facts and evidence. 

RFP No. 11—GRANT.  The scope of discovery is broad.  The RFP seeking all internal communications regarding policies and procedures for maintaining, repairing and inspecting the property’s gym equipment is not overbroad.  City argues that it has already responded that it has no such policies. However, there may be communications regarding whether such policies should be adopted, why there were no such policies, or just the fact that there were no such policies.  The lack of any official policy or procedures adopted by Defendant does not necessarily mean there was no discussion about such policies or procedures.  In addition, as Plaintiff’s counsel argues, there may be “unofficial” policies and procedures established by custom and practice.  Defendant fails to establish the production would be unduly burdensome with specific facts and evidence.

RFP No. 12, 17, 23, 33, 34, 35, 38, 39, 40, 42-45—GRANT.  Same as RFP No. 11.

RFP No. 48—GRANT.  Whether Defendant gave any warnings to persons about the property and its exercise equipment is relevant to whether the property was maintained in a dangerous condition, whether Defendant had notice thereof and whether it ever discussed warnings with Casas. 

RFP No. 55—DENY IN PART, GRANT IN PART.  The RFP is narrowed to all surveillance footage of the cardiovascular room where the subject incident occurred.  Defendant City states that it has no cameras in the cardiovascular room.  A code-compliant response so stating should be provided.