Judge: Margaret L. Oldendorf, Case: 23AHCV00990, Date: 2024-01-08 Tentative Ruling


Case Number: 23AHCV00990    Hearing Date: January 8, 2024    Dept: P

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

ERMHIN ZAMORA, an Individual; NALLA FAJARDO, an Individual,

 

                                 Plaintiffs,

 

         vs.

 

JONATHAN GARABET, an Individual and DOES 1 to 25, Inclusive,  

 

                               Defendants.

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Case No.: 23AHCV00990

 

 

[TENTATIVE] ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES 13.1 AND 13.2; AND FOR SANCTIONS

 

Date: January 8, 2024

Time:  8:30 a.m.

Dept.:  P

 

          I.        INTRODUCTION

          This is a personal injury action arising out of a car accident. Plaintiff Ermhin Zamora (Zamora) alleges that on November 22, 2021, Defendant Jonathan Garabet (Garabet) rearended Plaintiff’s vehicle. Though unclear, it appears the other plaintiff Nalla Fajardo (collectively Plaintiffs) was also in the car with Zamora, and allegedly sustained injuries. The accident happened on the 210 freeway near Altadena Drive.

Plaintiffs filed the instant motion to compel further responses to discovery.  At issue is the sufficiency of Defendant Garabet’s responses to Form Interrogatories 13.1 and 13.2.   For the reasons that follow, the motion is GRANTED.  

 

II.       LEGAL STANDARD

          “Within 30 days after the service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party[.]” (CCP § 2030.260(a).)

          When a party propounding interrogatories deems responses to the interrogatories to be incomplete or evasive, or deems objections to be without merit, the propounding party may move for an order compelling further response. Such motion must be accompanied by a meet and confer declaration and include a separate statement. In lieu of a separate statement, “the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (CCP § 2030.300(b)(2).) Such motion must also be made within 45 days of verified responses or supplemental responses, or on or before any specific later date the parties have agreed to in writing. (CCP § 2030.300(a)-(c).)

          Code Civ. Proc. Section 2030.300 (d) provides for the imposition of monetary sanctions against any party who unsuccessfully makes or opposes such a motion unless the court finds that the one subject to sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust. (CCP § 2030.300(d).)

 

III.     ANALYSIS

          A. Meet and Confer

Counsel for Plaintiffs, Mario E. Martinez, declares that he sent a meet and confer letter regarding the allegedly deficient responses on August 4, 2023. (Martinez Decl. ¶ 6.) Defense Counsel responded on August 11, 2023 and refused to provide further responses. (Martinez Decl. ¶ 6.) On August 15, Martinez responded, and argued that the information sought by the interrogatories 13.1 and 13.2 was not privileged. (Martinez Decl. ¶ 7, referencing Exh. 5.) On August 18, Defense counsel reiterated that defendant would not be providing a further response. Martinez declares that he then called defense counsel that same day to try to resolve the discovery issue before making the motion. (Martinez Decl. ¶ 9.) Parties did not reach a resolution.

Martinez’s declaration is sufficient for meet and confer purposes.

 

          B. Discovery Requests at Issue

At issue in this motion are Form Interrogatories Nos. 13.1 and 13.2:

          Form Interrogatory 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? lf so, for each surveillance state: [name, address, and telephone of the individual; time, date and place of surveillance, contact information of surveillance conducted, contact information of persons with copies]

          Form Interrogatory 13.2 : Has a written report been prepared on the surveillance? lf so, for each written report state:… [title, date, contact information of preparer, address, and telephone of anyone who has a copy]

 

          C. Analysis

          In Defendant’s July 14, 2023, response to Form Interrogatory 13.1, Defendant objected based on work product privilege, attorney client privilege, ambiguity, overbreadth, and untimely disclosure of expert opinion. (Motion Separate Statement p. 2: 11-15.)  Defendant made the exact same objections in response to Form Interrogatory 13.2. (Motion Separate Statement p. 2 : 24-28.)

          Plaintiffs urge that a further response is warranted, as (1) they anticipate that surveillance evidence will be used by Defendant Garabet against them at trial, (2) work product is a qualified privilege at best, and (3) surveillance is routinely subject to discovery in California. In support, Plaintiffs cite BP Alaska Exploration, Inc. v. Superior Court for the proposition that the work product privilege is a qualified one as to general work product and absolute as to writings containing attorney impressions, conclusions, or legal theories. (BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1250.) Plaintiffs urge the absolute privilege does not apply here, as 13.1 does not seek writings. (Motion Separate Statement p.4: 1-2.) This argument is well-taken, as the interrogatory does not seek actual documents, but rather only seeks information as to whether surveillance occurred and, if so, by whom.

          Plaintiffs further urge that the discovery sought by 13.1 is not protected by the qualified work product privilege. Items protected by the qualified or conditional work product privilege are “of a derivative or interpretive nature such as diagrams, charts, audit reports of books, papers, or records, and findings, opinions and reports of experts employed by an attorney to analyze evidentiary material.” (Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 69.) Plaintiffs cite Suezaki v. Superior Court for the proposition that surveillance photos and videos are subject to discovery in California; and further, that these items are not protected by attorney-client or work product privileges. (Suezaki v. Superior Court (1962) 58 Cal.2d 166, 175-177.)

          Lastly, plaintiffs urge that the objection based on untimely expert disclosure is unfounded. (Motion p. 5: 14-16, Motion Separate Statement p. 6: 5-7.)  Plaintiffs urge that they are not seeking the disclosure of expert information, but rather information regarding whether any surveillance was conducted. (Motion Separate Statement p. 6: 6-10.)  Defendant also declined to respond based on the grounds of overbreadth and ambiguity.

In his opposition, it appears that Garabet is no longer pursuing these objections, as there is no argument advanced in support of overbreadth and ambiguity.  Rather, Defendant urges that these interrogatories seek premature disclosure of sub rosa materials which are purportedly privileged under the work product doctrine. (Opposition to Fajardo p. 3: 4-6; Opposition to Zamora, p. 3: 4-6.) Garabet urges that “Investigations reflect counsel’s impressions, conclusions, and/or theories and are ‘writings’ entitled to absolute protection because they may also include reports, photos/video, taken from a particular angle or viewpoint, photographic enlargements, that show counsel’s theory of liability.” (Opposition to Zamora, p. 3: 25-27.)

In reply, Plaintiffs point out that the interrogatories at issue do not seek disclosure of the investigation/surveillance report itself, but rather whether surveillance was in fact  conducted, and if so by whom, and whether that individual made a report. (Reply, p.2: 1-2.) This argument is well taken, as the interrogatory itself does not ask for the answering party to provide any report. The investigation reports, images and videos may themselves constitute protected work product; but the fact that they were conducted is not. Writings are not being sought here. Garabet’s reliance on cases relating to the disclosure of films, research, and investigation is misplaced.

          Accordingly, the Court concludes that an order compelling a further response to Form Interrogatories 13.1 and 13.2 is warranted.

 

D. Sanctions

Code of Civil Procedure section 2031.310, subdivision (h) and 2030.300 subdivision (d), requires the imposition of sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response unless the court finds the imposition of a sanction to be unjust or that the one subject to the sanction acted with substantial justification. 

Plaintiffs ask for monetary sanctions against Defendant Garabet in connection with making the motion. In support, Plaintiffs provide the declaration of their attorney, Mario E. Martinez. (Martinez Declaration.) Martinez declares that his hourly rate is $250. (Martinez Decl. ¶ 13.) He declares that he spent $61.65 filing the motion and has spent 9 hours on the motion as follows: .5 hours reviewing the initial responses, 2 hours for meet and confer, 3 hours preparing the motion, .5 hours preparing the separate statement and anticipates 1 hour reviewing opposition, 1 hour preparing a reply and 1 hour for court appearance, for a total of 9 hours. (Martinez Decl. ¶¶ 12,14.)

The Court concludes that 9 hours for the instant motion is excessive.  The Court finds that a reasonable amount of time is 6.5 hours. The hourly rate is reasonable.  Plaintiffs are therefore awarded $1,625.00 +$61.65 filing fees = $1,686.65 in total. 

 

IV.     CONCLUSION AND ORDER

           Plaintiffs’ motion to compel further response to Form Interrogatories, Set One is GRANTED. Plaintiffs’ requests for sanctions are GRANTED.

          Defendant Garabet is ordered to provide further verified responses to Form Interrogatories No. 13.1 and 13.2 without objection, and to pay monetary sanctions of $1,686.65 to Plaintiffs within 30 days of this order.

Counsel for Plaintiffs is ordered to give notice.

 

 

         

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT