Judge: Jill Feeney, Case: 21STCV29944, Date: 2023-03-07 Tentative Ruling
Case Number: 21STCV29944 Hearing Date: March 7, 2023 Dept: 30
Department 30, Spring Street Courthouse
March 7, 2023
21STCV29944
-Motion to Compel Defendant’s Further Responses to Special Interrogatories (Set One) and Request for Monetary Sanctions filed by Plaintiff
-Motion to Compel Defendant’s Further Responses to Request for Production (Set One) and Request for Monetary Sanctions filed by Plaintiff
DECISION
Motion to Compel Further Responses to Special Interrogatories
No. 6: Motion Granted
Defendant’s objections as to the request calling for a legal conclusion or expert opinion are not well founded. If Defendant’s experts have information on this topic to provide during expert discovery they may do so. That does not relieve Defendant of the duty to answer the interrogatory based on the information currently on hand. Defendant has the right to supplement the answer at a later time if needed.
After providing a plethora of objections and other irrelevant statements, Defendant stated: “Responding Party has no responsive information at this time.”
This not a code compliant response. Code of Civil Procedure Section 2030.220(c) states that “if the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”
No. 34: Motion Granted
The objections are not well founded and Defendant’s answer is evasive. Clearly, the term investigation refers to steps taken outside of the discovery process. Moreover, this question which requires a yes or no answer does not require the disclosure of privileged information.
No. 35: Motion Denied
A question regarding dates of investigation is unduly burdensome.
No. 36: Motion Granted (in part)
The objections are not well founded and Defendant’s answer is evasive. Clearly, the term investigation refers to steps taken outside of the discovery process. Moreover, this question which requires only the production of names does not involve the disclosure of privileged information. However, to the extent that an expert has conducted an investigation that person need not be identified at this time.
No. 37: Motion Denied
The Court agrees with Defendant’s objections as to privilege and expert information.
Nos. 69, 70: Motion Granted
If Defendant does not want to use the sub rosa information at trial, these interrogatories need not be answered. Rather, Defendant must respond that to the extent sub rosa surveillance exists, Defendant will not be using it at trial for impeachment or other purposes.
Otherwise, given that Plaintiff has been deposed, the Court grants the motion.
Under California Law, surveillance done as part of a case investigation does not receive absolute protection from production. (Suezaki v. Superior Court, (1962) 58 Cal. 2d 166, 177.) The Suezaki court reasoned that simply because the subject matter sought to be discovered is the ‘work product’ of the attorney, it is not privileged; instead, this is a factor that the trial court should consider, together with other relevant factors, when determining whether to deny or to grant discovery of the surveillance video. (Id.) Therefore, surveillance falls under the qualified work product privilege, whose protection depends on the court’s determination of whether the plaintiff will be unfairly prejudiced in preparing his or her claim or will suffer an injustice if the surveillance is not disclosed. (Code Civ. Proc, § 2018.030(b).)
To the extent a plaintiff has not yet been deposed, a defendant may delay production of the surveillance footage and any deposition of the investigator until after a deposition at which a defendant will be able to fully depose a plaintiff as to the nature and extent of a plaintiff’s injuries and their effects. In such an instance, a plaintiff will not suffer unfair prejudice or suffer an injustice if the surveillance is not disclosed prior to deposition. A defendant is entitled to utilize the full impeachment power of any videos at that stage in the litigation if a defendant so desires.
However, the prejudice calculus changes after the deposition of a plaintiff, as has happened here, because an injustice may well be suffered if the surveillance is not disclosed prior to trial. For instance, even though a plaintiff has knowledge of their actions on the days the videos were taken, a plaintiff would not have sufficient opportunity to determine if the recordings were altered or manipulated or otherwise not representative of plaintiff’s injury status if plaintiff were surprised with the actual videos at trial. Such an occurrence would be unjust and prejudicial to a plaintiff, including the plaintiff here.
No. 71: Motion Denied
A question regarding dates of ISO claim searches is unduly burdensome.
No. 72, 73, 74: Motion Granted
Defendant’s objections are not well founded.
Motion to Compel Further Responses to Request for Production
Request No. 40: Motion Granted in Part and Denied in Part
Defendant need not produce expert documents or documents covered by a privilege. However, to the extent that a privilege is asserted, a privilege log must be produced pursuant to Code of Civil Procedure Section 2031.240(c)(1). Moreover, Defendant must provide a response that uses code compliant language as set forth in Code of Civil Procedure Sections 2031.230 and 2031.210(a).
Request No. 41: Motion is Denied
This is unduly burdensome and essentially impossible to respond to.
Requests No. 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 : Motion is Granted in Part and Denied in Part
Defendant need not produce expert documents or documents covered by a privilege. However, to the extent that a privilege is asserted, a privilege log must be produced pursuant to Code of Civil Procedure Section 2031.240(c)(1). Moreover, Defendant must provide a response that uses code compliant language as set forth in Code of Civil Procedure Sections 2031.230 and 2031.210(a).
Request Nos. 53: Motion Granted
Sub Rosa analysis set forth above applies.
Request Nos. 54: Motion Granted in Part and Denied in Part
Defendant must clearly state whether ISO Claim searches have been conducted and must produce the results of those searches. However, Defendant need not produce any documents containing any analysis of the results of those searches, just the content of the searches themselves.
Request No. 55: Motion Granted in Part and Denied in Part
Defendant must clearly state whether Defendant has any such documents and must produce the underlying documents regarding prior claims for personal injuries made by Plaintiff. However, Defendant need not produce any documents containing any analysis of these documents, just the documents themselves.
Requests No. 56-57: Motion in Granted in Part and Denied in Part
Defendant must clearly state whether Defendant has any such documents and must produce the underlying documents showing injury to/treatment of the same body parts or conditions. However, Defendant need not produce any documents containing any analysis of these documents, just the documents themselves.
Sanctions
With respect to the interrogatories, Plaintiff is seeking the imposition of sanctions in the amount $1,660 to be imposed jointly and severally on Defendant and Defendant’s Counsel of Record. This amount is based on four hours of attorney time at $400 plus the $60 filing fee.
With respect to the request for production, Plaintiff is seeking the imposition of sanction in the amount $1,660 to be imposed jointly and severally on Defendant and Defendant’s Counsel of Record. This amount is based on four hours of attorney time at $400 plus the $60 filing fee.
Here, the Court will not award the full amount of requested sanctions since the motions were not granted in their entirety. However, with respect to the majority of responses at issue the motions were unsuccessfully opposed and the court does not find that Defendant acted with substantial justification or other circumstances that make the imposition of sanctions unjust.
Conclusion
The Court imposes sanctions jointly and severally against Defendant and Defendant’s Counsel of Record in the amount of $2,120 (5 hours of attorney time at $400 per hour plus $120 in filing fees. These sanctions are due within 20 days after the date of this order.
Further responses, a privilege log, and any responsive documents must be served within 20 days after the date of this order.
Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.
