Judge Melvin D. Sandvig, Case Number: 20STCV24311, Date: 2023-08-08 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 20STCV24311, Date: 2023-08-08 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 20STCV24311 Hearing Date: August 8, 2023 Dept: F47

Dept. F47

Date: 8/8/23 TRIAL DATE: 4/15/24

Case #20STCV24311

MOTION TO QUASH SUBPOENA

Motion filed on 3/16/23.

MOVING PARTY: Defendant William Hart Union High School District

RESPONDING PARTY: Plaintiff R.S. Jr.

RELIEF REQUESTED: An order quashing or limiting Plaintiff R.S., Jr.’s Deposition Subpoena for Personal Appearance and Production of Documents issued to Defendant William Union High School District’s investigator, James Vermillion, of Vermillion Investigations. Additionally, Defendant requests sanctions against Plaintiff and Plaintiff’s counsel in the amount of $2,940.00.

RULING: The motion is granted.

SUMMARY OF ACTION & PROCEDURAL HISTORY

This action arises out of an incident that occurred on 10/3/19 when Plaintiff, R.S., Jr. (Plaintiff), a student at Hart High School which is located in Defendant William Hart Union High School District (Defendant), was attending rehearsal for the Unleashed Show Choir and fell while performing an assisted backflip during the rehearsal. Plaintiff claims that Defendant and the Show Choir Director and Choreographer are responsible for his injury. Plaintiff’s operative Fourth Amended Complaint contains one cause of action for Negligence (Government Code 815.2, 815.4 and 820) against Defendant.

After Plaintiff filed his Claim for Damages on or about 3/31/20, Defendant, through its counsel, used the services of James Vermillion of Vermillion Investigations to conduct interviews of various individuals that defense counsel determined were necessary to prepare Defendant’s defense. (Dumont Decl. ¶4). The identity of Mr. Vermillion and others were disclosed during discovery, including the dates of interviews, who was interviewed, and who conducted the interviews. (Id. ¶5, Ex.B).

On 2/28/23, Plaintiff issued a Deposition Subpoena for Personal Appearance and Production of Documents and Things to James Vermillion ordering him to appear on 3/21/23 for deposition and to produce “[a]ny and all documents—including but not limited to witness statements, audio recordings, and transcripts—in your possession, custody, or control, related to the above-captioned case and/or [Plaintiff].” (See Dumont Decl. ¶7, Ex.D; Poulter Decl. ¶3, Ex.1). The deposition subpoena was served on 3/6/23 or 3/7/23 via substitute service on a 35-year-old, female, co-occupant. (Poulter Decl. ¶3, Ex.2).

Plaintiff’s counsel did not respond to defense counsel’s meet and confer efforts regarding the issues presented by this motion. (Dumont Decl. ¶5). Therefore, on 3/16/23, Defendant filed and served the instant motion seeking an order quashing or limiting Plaintiff’s Deposition Subpoena for Personal Appearance and Production of Documents issued to Defendant’s investigator, James Vermillion, of Vermillion Investigations. Additionally, Defendant requests sanctions against Plaintiff and Plaintiff’s counsel in the amount of $2,940.00. Plaintiff opposed the motion and Defendant filed a reply to the opposition. The motion was originally set for hearing on 4/20/23 when this action was pending in Department 29 of the Spring Street Courthouse. When the action was transferred to Department F47 of the Chatsworth Courthouse, the hearing on the motion was rescheduled for 8/8/23.

ANALYSIS

CCP 1987(a) provides, in relevant part:

“the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by him or her, the fees to which he or she is entitled for travel to and from the place designated, and one day's attendance there.” (emphasis added)

Similarly, CCP 2020.220(b) provides, in relevant part:

“Any person may serve the subpoena by personal delivery of a copy as follows:

(1) If the deponent is a natural person, to that person.”

CCP 1987.1 provides, in relevant part:

“(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.”

Based on the foregoing, Plaintiff’s argument that the instant motion to quash the deposition subpoena is not the proper procedure to challenge the subpoena is without merit. (See Opposition, p.3:1-15). Additionally, Plaintiff provides no authority to support the conclusion that substitute service of the deposition subpoena on Mr. Vermillion was sufficient. (Id. at p.3:11-14). Even if such a subpoena could properly be served via substitute service, the validity of such service is in question in this case. The proof of service includes two different dates the subpoena was purportedly served on the co-occupant. The proof of service indicates that the subpoena was delivered on 3/7/23; however, the declaration of diligence indicates that it was delivered on 3/6/23. (See Poulter Decl. ¶3, Ex.2). Additionally, there is no indication that the subpoena was thereafter mailed to Mr. Vermillion. See CCP 415.20.

Even if the subpoena had been properly served on Mr. Vermillion, the Court would still grant Defendant’s request to quash the subject deposition subpoena.

The attorney work product doctrine applies to documents and depositions and protects the “mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.” Fireman's Fund Insurance Company (2011) 196 CA4th 1263, 1281-1282; See also State Compensation Insurance Fund (2001) 91 CA4th 1080, 1091; County of Los Angeles (Axelrand) (2000) 82 CA4th 819, 833. The purpose of the work product doctrine is to:

“(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.”

See CCP 2018.020.

The work product doctrine extends to an attorney’s agents, such as investigators, and their work is treated as the “work product” of the attorney. Rodriguez (1978) 87 CA3d 626, 647-648 disapproved on other grounds by Coito (2012) 54 C4th 480, 499. The type of questions that an investigator asks are absolutely protected from disclosure. Coito, supra at 495. Further, a statement obtained from a witness through an attorney-directed interview is also entitled, as a matter of law, at least to qualified work product protection. Id. at 495-496. A party seeking disclosure of such statements/writings has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice. CCP 2018.030(b).

By way of the subject deposition subpoena, Plaintiff is seeking witness statements obtained by Mr. Vermillion, which were already sought and objected to in discovery, as well as the testimony of Defendant’s investigator about his questioning and justification for contacting and speaking with third party witnesses, as well as his recollection, understanding, description, impressions, and knowledge of the conversation with those witnesses. The deposition subpoena itself and the argument in the opposition to this motion indicate that Plaintiff seeks to inquire about the investigator’s state of mind, impressions, and theories about the witnesses he interviewed which will include the background discussion with counsel. Such testimony is absolutely protected by the work product doctrine. Rodriguez, supra, at 647-648.

Even if the documents and information were subject to only a qualified privilege, Plaintiff has failed to establish that the witness(es) whose statement(s) are sought is/are no longer available or accessible as is required. See Coito, supra at 496; CCP 2018.030.

The opposition’s claim that Plaintiff is not seeking to invade any privilege or work product but rather seeking to discover facts relevant to the credibility and admissibility of key evidence in this case is without merit. (See Opposition, p.5:12-14). Plaintiff already has the witness statement of David Albee, which was produced by Defendant after it was relied upon to refresh his memory at his deposition. (Poulter Decl., Ex.8). To the extent Plaintiff claims that Mr. Vermillion’s questioning was leading or otherwise improper, the statement speaks for itself.

With regard to witness Griffin Qualls, while it appears Plaintiff is having a difficult time locating this witness, the Court finds that Plaintiff has not shown that all possible avenues of locating Griffin Qualls have been exhausted. The only specific information provided by Plaintiff’s counsel is that a “skip trace” of Qualls was ordered. (See Poulter Decl. ¶10). Plaintiff’s counsel does not indicate whether Plaintiff himself, who was a former classmate and fellow choir member of Qualls, has any way of contacting him. Additionally, Plaintiff fails to adequately explain how the deposition testimony of Mr. Vermillion or the examination of the transcript of a recorded statement provided by Mr. Qualls which was not made under oath can be used to challenge a declaration signed by Mr. Qualls under penalty of perjury submitted in support of Defendant’s motion for summary judgment. (See Opposition, p.7:12-20; Poulter Decl. ¶8, Ex.8 – Albee Statement not under oath). Plaintiff’s claim that he has no way of verifying whether the electronically signed declaration of Qualls was in fact signed by him is also without merit.

CCP 1010.6(e) provides, in relevant part,

“A trial court may adopt local rules permitting electronic filing of documents, subject to rules adopted by the Judicial Council pursuant to subdivision (h) and the following conditions:

(1) A document that is filed electronically shall have the same legal effect as an original paper document.

(2) . . .

(B) When a document to be filed requires the signature, under penalty of perjury, of any person, the document shall be deemed to have been signed by that person if filed electronically and if either of the following conditions is satisfied:

(i) The person has signed a printed form of the document before, or on the same day as, the date of filing. The attorney or other person filing the document represents, by the act of filing, that the declarant has complied with this section. The attorney or other person filing the document shall maintain the printed form of the document bearing the original signature until final disposition of the case, as defined in subdivision (c) of Section 68151 of the Government Code, and make it available for review and copying upon the request of the court or any party to the action or proceeding in which it is filed.

(ii) The person has signed the document using a computer or other technology pursuant to the procedure set forth in a rule of court adopted by the Judicial Council by January 1, 2019.”