Judge Lee S. Arian, Case Number: 22STCV25595, Date: 2023-11-20 Tentative Ruling

On August 9, 2022, Plaintiff Robert Stevenson (“Plaintiff”) filed this action against Defendant Kirit Shah (“Defendant”) and DOES 1 through 100, inclusive, for damages arising from an automobile collision between Plaintiff and Defendant that occurred on or around October 2, 2020. On April 14, 2023, Plaintiff served Form Interrogatories, Set One and Request for Production of Documents, Set One, on Defendant.

Plaintiff filed this motion to compel further responses to these discovery requests on October 19, 2023.

Plaintiff alleges that Defendant’s responses contain mostly objections, which the motion challenges. In Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 300 Cal.Rptr.3d 225, the court held that the 45-day time period to file a motion to compel further responses to interrogatories does not begin to run upon service of a combination of unverified factual responses and objections, where the motion challenges only objections; verification of such hybrid of responses and objections is required before the time period begins to run. (Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 300 Cal.Rptr.3d 225, 230-31.) Thus, the motion was filed within 45 days of Defendant’s initial response and the Court is not jurisdictionally prohibited from considering the instant motion. (Code Civ. Proc., §§ 2030.300, subd. (c) ,2031.310, subd. (c).) The Court also finds that moving Plaintiff has satisfied his obligation to meet and confer.

Under the Civil Discovery Act, the scope of discovery is, in general, quite broad:

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.”

The Civil Discovery Act, however, also recognizes the need to protect attorney work product from discovery. Code of Civil Procedure section 2018.030 provides:

“(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.”

(Code Civ. Proc., § 2018.030.) The Legislature did not define attorney work product in the Civil Discovery Act but instead provided that it “intended” the statute “to be a restatement of existing law relating to the protection of work product.” (Code Civ. Proc., § 2018.040.)

Plaintiff moves for an order compelling a response to Form Interrogatory 13.1 and Request for Production No. 20.

13.1 Have YOU OR ANYONE ACTING ON YOUR BEHALF conducted surveillance of any individual involved in the INCIDENT or any party to this action? If so, for each surveillance state:

(d) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy of any surveillance photograph, file, or videotape.

Please produce all sub rosa films, videos, and photographs taken of PLAINTIFF as a result of the INCIDENT.

Defendant objects to responding to this discovery on the bases of attorney work product and that it calls for the production of impeachment evidence. Neither of these bases are persuasive here.

The attorney work product doctrine has been well established in California law for decades. Under this doctrine, there are two levels of protection. First, there is an absolute level of protection for documents that reflect “an attorney’s impressions, conclusions, opinions, or legal research or theories.” (Code Civ. Proc., § 2018.030(a).) Second, there is qualified protection for other forms of attorney work product; disclosure of these materials can, however, be ordered when “the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (Code Civ. Proc., § 2018.030(b).)

There is no single definition of what constitutes attorney work product that applies in all circumstances. The Legislature deferred to the courts on that issue. (Code Civ. Proc., § 2018.040.) The Legislature did, however, explain some of the reasons for recognizing the work product doctrine, and these reasons provide guidance to the courts in determining the appropriate contours of the protection of the attorney work product doctrine. The Legislature stated that it acted in part to “[p]reserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.” (Code Civ. Proc., § 2018.020, subd. (a).) The Legislature also indicated that it was seeking to “[p]revent attorneys for taking undue advantage of their adversary’s industry and efforts.” (Code Civ. Proc., § 2018.020, subd. (b).)

The California Supreme Court has addressed the scope of the protections of the work product doctrine in a number of cases, including (without limitation) Suezaki v. Superior Court (1962) 58 Cal.2d 166, and Coito v. Superior Court (2012) 54 Cal.4th 480.

In Suezaki, the court addressed the same type of surveillance video that is at issue here. The California Supreme Court declined to establish a bright line rule, instead recognizing that surveillance videos may or may not be subject to the protections of the work product doctrine. (58 Cal.2d at 178-79.) As the court stated, at least where qualified protection is at issue, “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.” (Id. at 178.)

The Coito case involved recorded witness statements rather than surveillance videos, but the court took the opportunity to delve deeply into the history of the work product doctrine and to examine the policies underlying the Legislature’s recognition of the doctrine. Among other observations, the court noted that some courts have drawn a line between nonderivative or evidentiary material (which is not protected) and derivative or interpretive material (which is protected). (54 Cal.4th at 488-99.) Other courts have examined the circumstances under which the material was created to protect against the risk that one party could obtain an unfair advantage in litigation (or a so-called “free ride”) by obtaining in discovery copies of the product of the hard work, industry, initiative, and effort of the opposing party’s attorney. (Id. at 492-93.) As to the recorded witness statements at issue, the California Supreme Court again generally declined to draw bright lines and instead required that courts must determine, on a case-by-case basis, the circumstances surrounding the statements, and how they were obtained, to determine whether they are covered by the work product doctrine and, if so, whether the protection is absolute or qualified. (Id. at 495-502.)

Importantly, the court in Coito emphasized that the party seeking to invoke the protection of the work product doctrine has the burden of proving the preliminary or foundational facts for application of the doctrine. (Id. at 495-96, 501-02.) Numerous cases reaffirm this rule. (See, e.g., Zimmerman v. Superior Court (2013) 220 Cal.App.4th 389, 402; Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 911; Santa Rosa Memorial Hospital v. Sup. Ct. (1985) 174 Cal.App.3d 711, 727-728.)

Here, Defendant has not met his burden of establishing the preliminary or foundational facts for application of the work product doctrine. Counsel’s declaration in opposition to the motion says nothing at all about whether surveillance videos or photographs exist and, if so, the circumstances under which they were created and/or obtained by Defendant or his counsel. (Aivadjian Decl., ¶¶ 1-2.) Assuming arguendo that such videos or photographs exist, the Court has no way of knowing whether the surveillance was conducted at the direction of Defendant’s attorney (in which case the work product doctrine might apply) or at the direction of Defendant himself, or one of his friends, with no involvement by the attorney (in which case the work product doctrine would not apply).

Defendant further argues that the motion is premature. He contends that the deposition of Plaintiff should first occur. The Court fails to understand the basis for this argument. Other than citing to a Superior Court case in which that argument was accepted, with literally no analysis, Defendant provides no reasoning behind the argument.

If a matter is within the scope of Code of Civil Procedure section 2017.010, it is discoverable unless it is covered by attorney-client privilege, the work product doctrine, or some other basis for protection from disclosure. Absent the application of such a privilege or other basis for protection, impeachment materials are subject to disclosure in the discovery process – even if an impeachment witness need not be listed on a trial witness list and even if an impeachment exhibit need not be listed on a trial exhibit list.

Where the court grants a motion to compel further responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., §§ 2031.310, subd. (h), 2030.300, subd. (d).)

Plaintiff’s request for sanctions is GRANTED. Sanctions are imposed against Defendant and counsel of record, jointly and severally, for the motion as follows:

$4,560.00 for the filing fee of $60 and 9.0 hours reviewing the initial discovery responses, meet and confer efforts, preparing the motion, separate statement, review of the opposition, preparing the reply, and for attending the hearing at Plaintiff’s counsel’s hourly rate of $500.00. Sanctions of $4,560.00 are to be paid by Defendant Kirit Shah and his counsel of record within twenty (20) days of the date of this Order.

Plaintiff Robert Stevenson’s motion to compel further responses to (1) Form Interrogatories, Set One, and (2) Request for Production of Documents, Set One, are GRANTED.

Defendant Kirit Shah is to provide further responses to the requests for which the motion was granted within 20 days of the issuance of this order.

Defendant Kirit Shah and his counsel of record are to pay $4,560.00 to Plaintiff Robert Stevenson within 20 days of the issuance of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court