Judge: Lisa R. Jaskol, Case: 21STCV38321, Date: 2025-01-28 Tentative Ruling
Case Number: 21STCV38321 Hearing Date: January 28, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On October 18, 2021, Plaintiff John Beltran (“Plaintiff”) filed this action against Defendants Priscilla Rabenda Putinier (“Defendant”) and Does 1-50 for negligence.
On February 23, 2022, Defendant filed an answer.
On December 6, 2024, Defendant filed a motion to stay three depositions, to quash the depositions subpoenas, and/or for a protective order. The motion was set for hearing on January 17, 2025. On January 6, 2025, Plaintiff filed an opposition. On January 8, 2025, Defendant filed a reply. The Court continued the hearing to January 28, 2025.
On December 10, 2024, Defendant filed a motion to compel Plaintiff’s mental examination. The motion was set for hearing on January 28, 2025. On January 14, 2025, Plaintiff filed an opposition. On January 21, 2025, Defendant filed a reply. The Court continued the hearing to January 28, 2025.
Trial is currently scheduled for April 4, 2025.
PARTIES’ REQUESTS
Defendant asks the Court to stay three depositions, to quash the deposition subpoenas, and/or for a protective order. Plaintiff asks the Court to deny the motion.
Defendant asks the Court to compel Plaintiff’s attendance at a mental examination. Plaintiff asks the Court to deny the motion.
Trial
is currently scheduled for April 4, 2025.
I.
Motion to
stay depositions, quash deposition subpoenas, or for protective order
A. Legal standard
“Either the nonparty witness who has been subpoenaed, or any party to the action, may challenge the deposition subpoena.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 8:597, p. 8E-73 (Cal. Practice Guide).) “A deposition subpoena may be attached for . . . [¶] Defects in service of the subpoena” and “Records sought not within permissible scope of discovery—i.e., privileged, privacy, or attorney work product; or not ‘relevant to the subject matter . . . .’ ” (Id., ¶ 8:598, pp. 8E-73 to 8E-74.)
The procedures used to challenge a deposition subpoena include a motion to quash and a motion for a protective order. (See Cal. Practice Guide, supra, ¶¶ 8:610, p. 8E-74 to 8:608, pp. 8E-77 to 8E-78.)
Code of Civil Procedure section 1987.1 provides:
"(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.
"(b) The following persons may make a motion pursuant to subdivision (a): (1) A party. (2) A witness. (3) A consumer described in Section 1985.3. (4) An employee described in Section 1985.6. (5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights."
(Code Civ. Proc., § 1987.1.)
B. Discussion
1. The complaint
The complaint alleges that on or about November 11, 2019, at the intersection of Glencoe Avenue and Mindanoa [sic] Way in Marina Del Rey, California, Defendants negligently and carelessly entrusted, owned, operated, maintained, or controlled their vehicle, causing a collision between Defendant’s vehicle and Plaintiff’s vehicle and injuring Plaintiff.
2. The subpoenas
On June 13, 2024, Defendant served discovery responses identifying Christopher Miller (“Miller”), Morgan Van De Heavel (“Van De Heavel”), and Justin D. Hodson (“Hodson”) as individuals who had conducted surveillance of Plaintiff and/or prepared surveillance summaries and/or reports regarding the surveillance of Plaintiff. (Motion p. 3.) According to Defendant, “Western Limited and Hodson P.I was hired on behalf of Defendant to conduct surveillance of the activities of Plaintiff in connection with the defense of Defendant for claims raised in the above-captioned litigation by Plaintiff. It was believed that such surveillance would either confirm or refute Plaintiff’s claims of ongoing physical, mental, and emotional injuries, limitations, and/or restrictions. Such surveillance, and any resultant reports, allowed Defendant’s counsel to investigate favorable and/or unfavorable aspects of the above-captioned litigation. Defendant’s counsel’s intent has been for the surveillance, and any resultant report, to either be confidential and/or for impeachment purposes.” (Motion p. 4.)
On November 19, 2024, Plaintiff served deposition subpoenas for Miller, Van De Heavel, and Hodson (“deponents”). The subpoenas demanded that deponents appear and produce (1) “Any and all writings, in both printed and native format, prepared by [the deponent] or any other individual, regarding surveillance of John Beltran” and (2) “Any and all surveillance videos, photographs, or audio records of John Beltran in their native format.”
On December 4, 2024, Defendant served objections to the deposition subpoenas.
3. Defendant’s motion
a. Service of the subpoenas
Defendant contends the Court should quash the subpoenas because “it does not appear that Plaintiff personally served [deponents] with their respective subpoenas.” (Motion p. 7.)
In response, Plaintiff argues that he personally served subpoenas on Miller and Hodson. Citing Li v. Yan (2016) 247 Cal.App.4th 56, 65, Plaintiff also argues that the Court may not quash a subpoena based on lack of personal service because the deponent may waive the personal service requirement and voluntarily appear.
In Li v. Yan, the deponent had already waived any service defect. Here, however, no waiver has occurred and Plaintiff has not shown that deponents intend to waive the personal service requirement. The Court quashes the deposition subpoena for Van De Heavel based on lack of personal service.
In her reply, Defendant appears to challenge service of the subpoenas on Miller and Hodson. (Reply p. 2.) Defendant’s arguments about service of the subpoenas on Miller and Hodson are unclear and the Court does not consider them.
b. Attorney-client privilege and work product doctrine
(i) Attorney-client privilege
Defendant asks the Court to quash the deposition subpoenas or issue a protective order to prevent a violation of the attorney client privilege or disclosure of attorney work product.
“[U]pon asserting the attorney-client privilege, the client, or the attorney in the client’s absence, must prove that the attorney-client relationship existed when the communication was made. Once this showing is made (typically through declarations), the communications between the lawyer and client are presumed to have been made in confidence. [Citations.] [¶] Upon such showing, the burden shifts to the party seeking discovery to disprove those facts or to prove some applicable statutory exception (e.g., that the privilege has been waived [citation]). [Citations.]” (Cal. Practice Guide, supra, ¶ 8:192, p. 8C-61.)
(ii) Attorney work product doctrine
Code of Civil Procedure section 2018.020 provides:
“It is the policy of the state to do both of the following:
“(a) Preserve 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.
“(b) Prevent attorneys from taking undue advantage of their adversary’s industry and efforts.”
(Code Civ. Proc., § 2018.020.)
Consistent with this policy, 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.)
“There is no dispute that a statement independently prepared by a witness does not become protected work product simply upon its transmission to an attorney.” (Coito v. Superior Court (2012) 54 Cal.4th 480, 494 (Coito).)
(iii) Parties' arguments
Plaintiffs’ subpoenas seek production of (1) “Any and all writings, in both printed and native format, prepared by [the deponent] or any other individual, regarding surveillance of John Beltran” and (2) “Any and all surveillance videos, photographs, or audio records of John Beltran in their native format.”
Defendant argues that the requested writings and “surveillance media” are qualified attorney work product because they were created at the direction of defense counsel, were intended to investigate any favorable or unfavorable aspects of the case, were based on defense strategy, and were intended to be confidential or for impeachment purposes. Defendant contends that deposition testimony about “the circumstances under which any surveillance media was shot or what the footage shows” is also qualified attorney work product. (See Motion p. 9.)
In addition, Defendant contends that Defendant’s counsel and deponents engaged in confidential communications. As a result, Defendant asserts, the Court should issue a protective order barring inquiry into attorney-client privileged matters.
In response, Plaintiff argues that the surveillance videos and photographs are not work product and must be produced.
4. Analysis
Having reviewed the parties’ papers, the Court concludes that Plaintiff’s subpoenas seek writings, surveillance media, and deposition testimony subject to qualified attorney work product protection.
Defendant contends that an order granting his motion will not unfairly prejudice Plaintiff because the subpoenaed materials would be used only for impeachment. Defendant also states that denying his motion would allow Plaintiff to alter his testimony to avoid potential impeachment evidence.
Plaintiff argues that Defendant should not be allowed to withhold evidence based on privilege and then attempt to waive the privilege at trial to offer the evidence.
The Court finds that granting Defendant’s motion would “unfairly prejudice [Plaintiff] in preparing [Plaintiff’s] claim or defense or will result in an injustice.” (See Code Civ. Proc., § 2018.030.) The Court therefore denies Defendant’s motion with respect to the depositions of Miller and Hodson without prejudice to Defendant’s counsel asserting appropriate objections at the depositions.
II.
Motion to
compel Plaintiff’s attendance at mental examination
A. Legal standard
Code of Civil Procedure section 2032.310 provides:
“(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.
“(b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.
“(c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”
(Code Civ. Proc., § 2032.310.)
Code of Civil Procedure section 2032.320 provides in part:
“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.
* * *
(Code Civ. Proc., § 2032.320, subds. (a), (d).)
B. Discussion
Plaintiff
alleges that, due to the traffic collision at issue in this case, he suffers
from anxiety and sleeplessness and receives treatment from a psychologist. Plaintiff
argues, however, that these facts do not establish good cause for a mental
examination under Code of Civil Procedure section 2032.320, subdivision (a)
because “Defendants have not explained why they cannot obtain all the
information they need to evaluate these issues from written discovery requests,
from Plaintiff’s deposition, from Plaintiff’s mental health records through the
VA, or through the deposition testimony of the treating physicians who have
already examined Plaintiff.”
The Court finds good cause and grants Defendant’s motion to conduct Plaintiff’s psychiatric examination. Matthew F. Carroll, M.D. (“Dr. Carroll”), a board certified forensic psychiatrist, will conduct the examination on a date to be determined at 9:00 a.m., at Veritext, 611 Anton Boulevard, Suite 500, Costa Mesa, California 92626. The examination will consist of a clinical interview that includes a mental status examination, followed by standard and objective psychological tests and psychiatric testing, limited to: Minnesota Multiphasic Personality Inventory - 3 (MMPI-3), the Millon Clinical Multiaxial Inventory -IV (MCMI-IV), and psychiatric testing consisting of true/false questionnaires.
CONCLUSION
The
Court GRANTS in part Defendant Priscilla Rabenda
Putinier’s motion to stay depositions, to
quash depositions subpoenas, and/or for a protective order and quashes the deposition subpoena issued to Morgan Van De Heavel. In all other respects, the Court DENIES the motion without prejudice to
Defendant’s counsel asserting appropriate objections at the depositions.
The
Court GRANTS Defendant Priscilla Rabenda
Putinier’s motion for leave to conduct Plaintiff John Beltran’s mental
examination. The examination will take
place beginning at 9:00 a.m. on a mutually agreeable date within 30 days of the
Court’s ruling. Matthew F. Carroll, M.D.
(“Dr. Carroll”), a board certified forensic psychiatrist, will conduct the
examination at Veritext, 611 Anton Boulevard, Suite 500, Costa Mesa, California
92626. The examination will consist of a
clinical interview that includes a mental status examination, followed by
standard and objective psychological tests and psychiatric testing, limited to:
Minnesota Multiphasic Personality Inventory - 3 (MMPI-3), the Millon Clinical
Multiaxial Inventory -IV (MCMI-IV), and psychiatric testing consisting of
true/false questionnaires.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.