Judge John J. Kralik, Case Number: 24NNCV04298, Date: 2025-04-18 Tentative Ruling

Plaintiff Rodolfo Osorio (“Plaintiff”) alleges that on January 8, 2024, he was involved in a motor vehicle collision in Burbank with Defendant Frances Harris Teasley (“Defendant”). Plaintiff alleges that he was operating his vehicle, traveling southbound on Victory Boulevard at Verdugo Avenue to make a left turn onto Verdugo Avenue when Defendant failed to stop for a red light and collided with Plaintiff’s vehicle. (Compl., ¶8.)

The complaint, filed September 16, 2024, alleges a single cause of action for negligence.

On January 17, 2025, Plaintiff filed a motion to compel responses to demands for inspection, in particular sub rosa video and photographs.

On April 3, 2025, Defendant filed an objection/opposition brief. On April 4, 2025, Defendant file a Notice of Errata, correcting counsel Natalie Avedissian’s declaration at paragraph 8 to state that Plaintiff produced medical and billing records and reports on January 27, 2025.

In the opposition brief, Defendant argues that the motion should be denied in its entirety because Plaintiff did not properly notice the motion as a motion to compel further responses, as Defendant did provide responses/objections to the RPDs.

The motion is improperly named as a motion to compel. It should have been captioned and reserved as a motion to compel further responses. Nevertheless, the Court will consider the merits of the motion. The memorandum of points and authorities cites to CCP § 2031.310 (re motions to compel further responses) as the legal basis for the motion. Further, Defendant has substantively addressed the merits of the motion in the opposition brief. Plaintiff is cautioned for future motions to properly reserve and notice his motions.

· RPD No. 17 seeks copies of motion pictures or videotapes taken of Plaintiff subsequent to the incident.

· RPD No. 18 seeks copies of any photographs of Plaintiff taken subsequent to the incident, including any surveillance photos.

· RPD No. 23 seeks any and all media, but not limited to CDs, discs, still images, tapes, DVDs, and/or cassettes relating to video surveillance, including but not limited to sub rosa surveillance, taken of Plaintiff at any time.

(Pl.’s Separate Statement at pp.1-3.) Defendant objected to the RPDs on the ground that the RPDs do not specifically describe each individual item or reasonably particularize a category of item sought by the RPD; the documents are subject to the attorney work product privilege and a privilege log is not necessary because identifying the specific documents/writings would disclose defense counsel’s tactics and strategy in preparing the case for trial; and the documents/writings to/from a consulting expert are protected by the attorney-client privilege and work product doctrine and are not discoverable unless/until the expert is designated as a testifying expert. Plaintiff’s Separate Statement also include FROG Nos. 12.4, 13.1, 13.2, and 16.3 as the RPDs are dependent upon Defendant’s responses to the FROGs. Defendant’s response to FROG No. 12.4 discloses the number of photographs and videotape, dates of photographs/videos, the duration of the videos, the person who took the footage, etc. Defendant’s response to FROG No. 13.1 states that Defendant had surveillance conducted as to Plaintiff and details thereto. In response to FROG No. 13.2, Defendant provides details about the written report prepared on the surveillance, naming Hazel V. Tucker of Digistream Investigations as the person who prepared the report. Defendant’s response to FROG No. 16.3 discusses Defendant’s contentions as to Plaintiff’s injury being limited to soft tissue based on his age and the sub rosa images.

Plaintiff argues that in March 2024, Defendant had Digistream Investigations conduct sub rosa surveillance at or near his place of work (Burbank Housing Corp.), Shell Gas/McDonalds, and Smart & Final grocery store, which consisted of about 16 hours of surveillance over 3 days with only 21 corresponding minutes of video. (Mot. at 5:4-10.) Differently, on page 9 of the memorandum of points and authorities, Plaintiff states that the investigator followed him for about 8 hours to his work, lunch spot, and grocery store and pieced the original video into a 14-minute edited product. (Mot. at 9:14-19.) According to Defendant’s response to FROG No. 12.4, there are 6 minutes of videotape of Plaintiff at Shell/McDonalds on March 3, 2024; 14 minutes of videotape at Burbank Housing Corporation, Smart & Final, and McDonalds on March 7, 2024; and 1 minute of videotape of Plaintiff at Burbank Housing Corporation on March 8, 2024. (Mot., Ex. 3 [Def.’s FROG responses].) Plaintiff argues that good cause exists to compel production of the sub rosa video and photographs because the visuals may impact the jury, the evidence is required to establish foundation and authentication and prevent improper video editing, to prevent surprise at trial, and the video/photographs cannot yet be characterized as impeachment evidence as Plaintiff has not been deposed (and Defendant did not initially object on the basis of impeachment, such that this objection was waived).

In opposition, Defendant argues that his objections are proper because: (1) Plaintiff has not specified whose images Plaintiff is demanding, such that the RPDs lack specificity; (2) the videos/photographs are subject to a qualified attorney work product privilege, nothing prevents Plaintiff’s counsel from creating their own comparable videos of Plaintiff or evidence demonstrating his alleged impairments, and Plaintiff has not shown that he would be unfairly prejudiced; and (3) the documents are subject to the attorney-client privilege because they constitute communications between a private investigator and counsel. Defendant also argues that the evidence constitutes impeachment evidence, such that it is protected by the attorney work product doctrine, and the evidence is not prejudicial nor barred from discovery solely based on the fact that it may be harmful to Plaintiff’s credibility.

Both parties discuss the application of Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166. In Suezaki, the plaintiff discovered through interrogatories propounded on the defendants that defense counsel had hired an investigator to take motion pictures of plaintiff without his knowledge. The trial court denied plaintiff’s motion for production and inspection of the films because though it found good cause for inspection (in order to protect against surprise and to examine the person who took the pictures), the trial court found that the film was privileged communication and therefore not discoverable. The plaintiff sought a writ of mandate requiring the trial court to authorize the inspection.

The California Supreme Court found that all photographs taken by an investigator and transmitted to an attorney to use at trial are not necessarily confidential communications or per se privileged (i.e., a picture of a public bus on a public street is not privileged). (Suezaki, supra, 58 Cal.2d at 176.) The Supreme Court discussed investigator films and the attorney-client privilege:

It is quite clear that although the investigator, the attorney and his client may have intended the films to be confidential, to be privileged they must constitute a “communication made by the client to [the attorney]” as that phrase is used in section 1881. The film here involved obviously was not such a “communication.” It is simply a physical object transmitted to the attorney either with or without an accompanying report or letter of transmittal. As already pointed out, transmission alone, even where the parties intend the matter to be confidential, cannot create the privilege if none, in fact, exists. Moreover, even if the picture itself were to be deemed a “communication,” it cannot be said to be one from client to the attorney. This is so not because the transmittal was from the investigator and not from the client, for there are many situations in which a communication made by an agent for the client is deemed to be the communication of the client for the purpose of determining privilege. The matter is privileged if the agent is required to communicate to the attorney something from the client which the latter is unable to communicate himself, or where the communication can better be transmitted through a specialist. In such case, the subject matter of the communication is either the client himself (as in a report of a physical or mental examination, X-ray or blood test; see City & County of San Francisco v. Superior Court, 37 Cal.2d 227 [231 P.2d 26, 25 A.L.R.2d 1418]), or facts or impressions emanating from the client to the agent and by him transmitted to the attorney. In these cases it is as if the client himself transmitted the material to his attorney. The communication is then privileged because the statute is designed to encourage, and protect, disclosure by the client to his attorney. But that is not the instant case. Here, the film cannot be said to be a communication made by the agent of something the client would have transmitted himself had he been in a position so to do. 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, they represent an unconscious and unintended “communication” from plaintiff. (13) Certainly, there is nothing in subdivision 2 of section 1881 of the Code of Civil Procedure (or in the cases interpreting it) that can be said to create a privilege in a communication from a litigant to his adversary's attorney.

The Supreme Court also addressed defendants’ argument that the films were attorney work product as the attorney had the films taken solely as a part of his trial preparation. The Supreme Court held that while the films were attorney work product, this did not make them absolutely privileged as a matter of law. (Id., at 177-178.) It stated:

But under the California rule, the trial court may consider the facts on which a claim of “work product” is predicated, and exercise the discretion granted by the provisions of the discovery statutes in order to prevent abuse and to reach a determination consistent with equity and justice. This simply means that in California the fact that the material sought to be discovered is the “work product” of the attorney is one factor to be used by the trial court in the exercise of its discretion in determining whether or not discovery should be granted. It does not mean that, simply because the material involved is the “work product” of the attorney, it can or should deny discovery. Something more must exist. The trial court must consider all the relevant factors involved and then determine whether, under all the circumstances, discovery would or would not be fair and equitable. This is made quite clear even in the case of Hickman v. Taylor, relied upon so strongly by defendants. They interpret that case to mean that all “work product” is nondiscoverable. The case did not so hold. It limited its rule of nondiscoverability to those portions of the attorney's files containing material disclosing the mental processes of the attorney formed while he was interviewing witnesses, and stressed the fact that the discovery there sought would be tantamount to compelling the attorney to become a witness. Such matters should not be discoverable under the California rule. But there is nothing in Hickman v. Taylor that holds or implies that a film such as the one here involved would not be discoverable under the federal rules. In fact, the inference is to the contrary.

(Id. at 178-179.) The Supreme Court the concluded: “While it would appear that inspection of the films should be permitted, the discretion granted by the statute is the discretion of the trial court, not of this court.” (Id. at 179.)

Defense counsel, Natalie Avedisian, provides her declaration in support of the opposition. Ms. Avedisian states that “no surveillance evidence will need to be introduced as impeachment evidence, if Plaintiff is candid and truthful at the time of trial.” (Avedisian Decl., ¶7.) She states that Defendant would suffer undue prejudice with disclosing the evidence and that preservation of the evidence pertaining to Plaintiff’s credibility of damages and truthfulness of Plaintiff’s testimony at trial would be a critical element of Defendant’s defense. (Id., ¶8.)[1] She states that the evidence is a valuable tool needed to evaluate Plaintiff’s truthfulness and credibility, the evidence constitutes attorney-client privileged information of communication between a private investigator and counsel, and disclosure would destroy the images’ impeachment value by allowing Plaintiff to change his testimony. (Id., ¶¶9-12.) Counsel states that Plaintiff and his counsel will be afforded ample opportunity to view the evidence prior to introduction at trial for purposes of foundation, authentication, and to introduce rebuttal evidence and there was no manipulation or unfair editing done to the video. (Id., ¶12.) Ms. Avedisian states that in the event the motion is granted, it would be unduly prejudicial to compel disclosure prior to Defendant’s completion of all written discovery and Plaintiff’s deposition relating to his claimed damages; thus, Defendant should be able to “at least lock in” Plaintiff’s assertions pertaining to his present physical condition and level of improvement prior to any such disclosures. (Id., ¶14.)

As discussed in the Suezaki case, the Court does not find that the videos and photographs constitute attorney-client communications that are subject to the attorney-client privilege.

Here, the investigator’s videos/photographs are subject to a qualified, but not absolute, privilege under the attorney work product doctrine. As represented by defense counsel, Natalie Avedisian, the investigative surveillance was conducted for the purpose of measuring Plaintiff’s credibility and to capture potential impeachment material by way of videotaping and photographing Plaintiff related to his physical condition and level of improvement. While the videos/photographs themselves might not be absolutely privileged, they would be subject to a qualified protection as attorney work product.

Ms. Avedisian states in her declaration that she may or may not introduce the surveillance evidence depending on Plaintiff’s candor at trial and would provide Plaintiff ample opportunity to view the evidence and prepare rebuttal evidence; however, this representation is somewhat speculative as to what may happen at trial. Further, providing the opportunity to view the evidence during the jury trial right before its presentation would not afford Plaintiff or his counsel ample opportunity to prepare rebuttal evidence.

Next, Defendant argues that Plaintiff is the party that allegedly suffered the injury and thus the evidence is equally available to Plaintiff and Plaintiff can prepare his own videos/photographs. However, his physical condition as of March 2024 (when Defendant’s investigator took the photos/videos) is beyond Plaintiff’s ability to capture as that period passed over a year ago. Further, it is unknown at this time what the edited video segment includes as opposed to the raw footage.

Given the qualified privilege that applies over the videos and photographs and defense counsel’s intended use of the evidence, the Court finds that the ends of justice and the spirit of discovery would be promoted by delaying the disclosure of the sub rosa surveillance videos/photographs until after Plaintiff’s deposition and written discovery is completed. The Court finds that this would provide a prudent and appropriate balance between the protection of work product and the production of all relevant evidence prior to trial. This balances Defendant’s considerations in protection of work product with Plaintiff’s request to review the surveillance for trial purposes. There is no need for Plaintiff to obtain the video now as Plaintiff was apparently present during the filming of the events at issue. The only reason Plaintiff would seek the use of the video prior to his deposition is to evaluate how to fashion his deposition responses to the video. At this time, the Court will grant in part and deny in part the motion to compel further responses to RPD Nos. 17, 18, and 23, such that the raw surveillance material must be produced 30 days after Plaintiff’s deposition is completed.

Plaintiff’s motion to compel responses to demands for inspection, in particular sub rosa video and photographs is granted in part and denied in part as to RPD Nos. 17, 18, and 23. Defendant is ordered to produce the raw surveillance materials 30 days after Plaintiff’s deposition is completed.

[1] On April 4, 2025, Defendant file a Notice of Errata, correcting counsel Natalie Avedissian’s declaration at paragraph 8 to state that Plaintiff has produced medical and billing records and reports on January 27, 2025. The original declaration stated that Plaintiff had not yet produced documents.

Superior Court of California

County of Los Angeles

Department B