Judge: Michael E. Whitaker, Case: 19STCV25342, Date: 2022-10-05 Tentative Ruling

Case Number: 19STCV25342    Hearing Date: October 5, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Luis Manuel Zarate (Plaintiff) and Defendants Joseph William Davidson and Jennifer L. Davison (Defendants) were involved in an auto collision which occurred on October 6, 2017. Both parties filed separate Personal Injury Actions. On June 25, 2020, this Court consolidated the matters. Plaintiff moves for a protective order to excuse Plaintiff from having to respond to: (1) Special Interrogatories, set two (SROG) and (2) Request for Production of Documents, set two (RPD), which Defendants served on Plaintiff.  Defendants oppose the motion. 

ANALYSIS

“The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  (Code Civ. Proc., §§ 2030.090, subd. (b), 2031.060, subd. (b).)  The protective order may include direction that the subject discovery request need not be answered or responded to.  (Code Civ. Proc., §§ 2030.090, subd. (b)(1), 2031.060, subd. (b)(1).)  A party seeking a protective order must show good cause for issuance of the order by a preponderance of the evidence.  (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) 

1. Special Interrogatories Nos. 51-56 and 59

Plaintiff argues in part that SROG Nos. 51-56 seek to ascertain Plaintiff’s trial strategy and are thus improper under the Discovery Act. 

            The attorney work product doctrine is codified under Code of Civil Procedure section 2018.010, et seq. 

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.

(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.

(See Code Civ. Proc., §§ 2018.020, 2018.030.)  “Absolute protection is afforded to writings that reflect ‘an attorney's impressions, conclusions, opinions, or legal research or theories.’ All other work product receives qualified protection; such material ‘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.’ ”  (Coito v. Superior Court (2012) 54 Cal.4th 480, 485, citations omitted.)   

Here, for example, Defendants ask Plaintiff to “Identify each specific injury YOU sustained in the INCIDENT for which YOU intend to seek compensation for at the time of trial.”  (SROG No. 51.)  The call of the inquiry goes beyond asking Plaintiff to provide factual information which is permitted by the Discovery Act.  Instead, Defendants are seeking information that a party would be infringe upon the qualified protections afforded by Sections 2018.020 and 2018.030.   Further, Defendants have not established that denial of discovery will unfairly prejudice them in preparing that their defenses or will result in an injustice. 

2. Special Interrogatory No. 57

Defendants will withdraw SROG No. 58.  Thus, Plaintiff’s motion regarding this SROG is moot.   

3. Special Interrogatory No. 58

Plaintiff argues SROG No. 58 is “premature expert discovery,” and is thus improper.  Defendants have not articulated why the information sought should be produced before the parties designate expert witnesses.  Thus, the Court agrees with Plaintiff.     

4. Request for Production Nos. 15-16

Plaintiff asserts that RPD Nos. 15 and 16 are duplicative of FROG Nos. 10.1, 10.3, and 2.3. However, because Interrogatories and Requests for Production of Documents are different forms of discovery, they cannot be duplicative.

Plaintiff further argues that RPD Nos. 15 and 16 seek production of personal and privileged information in violation of Plaintiff’s Constitutional right of privacy. Article I, section 1 of the California Constitution recognizes the right to privacy, which extends to medical records. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.) However, the right to privacy is not absolute, “courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)   Here, Defendants’ right to discover relevant facts outweigh Plaintiff’s privacy interests. RPD No. 15 seeks medical records directly relevant to the causation and injury element of Plaintiff’s claim, as well as the eventual calculation of damages. RPD No. 16 seeks medical records related to liability and causation.  Thus, Plaintiff has not met its burden to show that RPD Nos. 15 and 16 are an undue burden on Plaintiff.

5. Request for Production No. 17

            Defendants will withdraw RFP No. 17.  Thus, Plaintiff’s motion regarding this SROG is moot. 

6. Request for Production Nos. 18, 20 and 25

Plaintiff argues RFP Nos. 18 and 25 are “premature expert discovery,” and is thus improper.  Defendants have not articulated why the information sought should be produced before the parties designate expert witnesses.  Thus, the Court agrees with Plaintiff.     

7. Request for Production Nos. 19, 22 and 23

            Plaintiff has not shown that the subject discovery requests require protection from

unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.  And Plaintiff is entitled to advance any objections in responding to RFP Nos. 19, 22 and 23. 

8. Request for Production Nos.  21 and 24

Plaintiff argues in part that RFP Nos. 21 and 24 seek to ascertain Plaintiff’s trial strategy and are thus improper under the Discovery Act.  The Court agrees.  (See Special Interrogatories Nos. 51-56 and 59 above.) 

9. Request for Monetary sanctions

In the Memorandum of Points and Authorities, Plaintiff seeks monetary sanctions in connection with the motion.  However, Plaintiff failed to provide proper notice of the request for sanctions in the Notice of Motion filed on March 16, 2022.  (See Code Civ. Proc., § 2023.030 [“the court, after notice to any affected party, person, or attorney, and after an opportunity for hearing, may impose . . . sanctions”].)   In particular, Plaintiff does not notice the party, person or attorney that may be subject to sanctions for abuse of the discovery process.  Therefore, the Court declines to award sanctions as requested by Plaintiff.

CONCLUSION AND ORDER

Therefore, the Court grants, in part, Plaintiff’s motion for protective order, and excuses Plaintiff from responding to SROG Nos. 51-57 and 59 and RPD Nos. 18, 20-21 and 24-25.  Further the Court denies in part Plaintiff’s motion  for protective order regarding SROG No. 57 and RFP No. 17 as moot, and RFP Nos. 15, 16, 19 and 22-23.  Further, the Court orders Plaintiff to provide verified responses to RFP Nos. 15, 16, 19 and 22-23 within 20 days of the hearing on the motion for protective order. 

            Plaintiff shall provide notice of the Court’s orders and file a proof of service regarding the same.