Judge Michael E. Whitaker, Case 21STCV01798 2023-03-27 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21STCV01798, Date: 2023-03-27 Tentative Ruling

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. 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.

In the complaint filed on January 15, 2021, Plaintiff Edith Landaverde (“Plaintiff”) alleges she was injured after a vehicle she was being transported in collided with another vehicle. Plaintiff further alleges that Defendants Access Services, MV Transportation, Inc. and Angel Silva negligently operated the vehicle she was being transported in. (See Complaint, pp. 2-7.)

Defendants Access Services and MV Transportation, Inc. (collectively, “Defendants”) move the Court for orders compelling Plaintiff to provide further responses to the following discovery requests:

3. Demands for Production of Documents, Set 1, Propounded to Plaintiff (Motion C)

Per the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts Effective October 10, 2022 [Filed 09/20/2022], ¶ 9E, “PI Hub Courts will not hear Motions to Compel Further Discovery Responses to Discovery until the parties have engaged in an Informal Discovery Conference (IDC).”

Here, the parties complied with the Standing Order in scheduling and attending the IDC on November 30, 2022.

A notice of motion to compel further responses must be given within 45 days of the service of the responses, or any supplemental responses, or on or before any specific later date to which the parties have agreed in writing. (Code Civ. Proc., §§ 2030.300, subd. I; 2031.310, subd. I.) Failure to file such a motion within this time period constitutes a waiver of any right to compel further responses to interrogatories or requests for production of documents. (Ibid.)

Here, Defendants filed the motions on the dates set forth above. Plaintiff has not objected to the timeliness of the motions.

“A motion to compel must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040.” (Code Civ. Proc., §§ 2030.300, subd. (b)(1); 2031.310, subd. (b)(2).) “A meet and confer declaration must state facts showing a reasonable and good-faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order. . . . This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4^th 1431, 1434-1435 [cleaned up].) To comply, “A reasonable and good-faith attempt at informal resolution entails something more than bickering with [opposing counsel]. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Id. at p. 1439; see also Clement v. Alegre (2009) 177 Cal.App.4^th 1277, 1294 [to satisfy the attempt at informal resolution required in section 2016.040 opposing parties must do more than try to persuade each other of their errors].) In short, the Discovery Act “requires that there be a serious effort at negotiation and informal resolution.” (Townsend v. Superior Court, supra, 61 Cal.App.4^th at p. 1438.)

To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) Cal.App.4^th 424, 433.) In determining if parties have satisfied section 2016.040, judges may consider “the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Id. at pp. 431-432 [holding that the trial court was correct in determining that sending a letter with oppositions was an insufficient attempt at an informal resolution].) In sum, meet and confer efforts should go beyond counsel merely sending letters to each other stating each party’s respective positions.

Here, as set forth in the Declarations of Tiffany Schneider, counsel for Defendants, Defendants reached an agreement with Plaintiff in which Plaintiff agreed to serve further responses to the subject discovery requests. (Declarations of Tiffany Schneider, ¶¶ 2-4, Exhibits A-C.) But after several verbal and written communications with counsel for Plaintiff, Plaintiff did not serve the further discovery responses as agreed. (Declarations of Tiffany Schneider, ¶¶ 5-10, Exhibits D-F.)

As set forth in the Declaration of Manuel D. Balam (“Balam”) counsel for Plaintiff, he suffered from health issues starting from September 2021 through November 2021. (Declarations of Manuel D. Balam, ¶¶ 4-5.) Thereafter, Balam’s spouse, who is Plaintiff’s daughter in law, experienced pregnancy related complications from November 2021 through July 2022. (Declarations of Manuel D. Balam, ¶ 5.) In addition, Balam explains that Plaintiff has dealt with health issues resulting in hospital admissions in February 2021 and August 2022; Plaintiff also contracted Covid-19 in June 2022. (Declarations of Manuel D. Balam, ¶ 6.)

Accordingly, the Court finds that Defendants have made a good faith attempt to informally resolve the issues presented in the motions.

California Rules of Court, rule 3.1345 requires that any motion involving the content of discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for why an order compelling further responses is warranted.

Here, Defendants have filed separate statements related to the motions in compliance with the Rules of Court.

“The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise. In other words, the discovery process is designed to make a trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4^th 377, 389 [cleaned up].)

Where a party objects or responds inadequately discovery requests, a motion lies to compel further responses, and that party has the burden to justify the objections or inadequate responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4^th 245, 255; Code Civ. Proc., §§ 2030.300, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to interrogatories”], 2031.310, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to a demand for inspection”].) “A trial court’s determination of a motion to compel discovery is reviewed for abuse of discretion. However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court’s factual findings will be upheld if they are supported by substantial evidence.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4^th 725, 733 [cleaned up].)

Per Evidence Code section 954, “[t]he client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.” (Evid. Code, § 954.) And “while attorney-client communications are presumed to be confidential, the party claiming the attorney-client privilege as a bar to disclosure has the burden of showing that the communication sought to be suppressed falls within the parameters of the privilege.” (Scripps Health v. Superior Court (2003) 109 Cal.App.4^th 529, 533 [cleaned up].)

Moreover, “[i]t has long been recognized that communications made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.” (Scripps Health v. Superior Court, supra, 109 Cal.App.4^th at p. 535; see also Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424; Travelers Ins. Cos. v. Superior Court (1983) 143 Cal.App.3d 436.)

Here, the Court finds that Plaintiff has failed to meet her burden to establish that the attorney client privilege applies to prevent further responses to the subject discovery requests. Neither Plaintiff nor counsel for Plaintiff has proffered declarations which provide a factual basis for the application of the privilege.

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

(b) 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.

(b) 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.4^th 480, 485, citations omitted (hereafter Coito).)

In Coito, the California Supreme Court decided “[w]hat work product protection, if any, should be accorded two items: first, recordings of witness interviews conducted by investigators employed by defendant’s counsel, and second, information concerning the identity of witnesses from whom defendant’s counsel has obtained statements.” (Coito, supra, 54 Cal.4^th at p. 485.) With respect to both items, the Coito court opined:

[W]e hold that the recorded witness statements are entitled as a matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its attorney’s impressions, conclusions, opinions, or legal research or theories. If not, then the items may be subject to discovery if plaintiff can show that denial of discovery will unfairly prejudice [her] in preparing [her] claim or will result in an injustice.

As to the identity of witnesses from whom defendant’s counsel has obtained statements, we hold that such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts (qualified privilege).

(Id. at p. 486 [cleaned up].) Attorneys are the holders of the “work product privilege.” (See Curtis v. Superior Court (2021) 62 Cal.App.5^th 453, 468 [“The work product privilege is held by the attorney, not the client”].)

Here, Plaintiff has the initial burden to establish that further responses to the subject discovery requests would be in contravention of the attorney work product doctrine. In particular, Plaintiff has not advanced any evidence that demonstrates that her attorney’s work products would be produced in response to any of the subject discovery requests.

Based upon the record, the Court finds that neither the attorney client privilege nor the attorney work production doctrine applies to preclude Plaintiff’s further responses to Defendants’ form interrogatories, special interrogatories and demands for production of documents. Plaintiff has failed to proffer sufficient, competent evidence to establish that either the doctrine or privilege thwarts Defendants’ efforts to obtain further responses. This is a simple failure of proof on the part of Plaintiff.

“The state Constitution expressly grants Californians a right of privacy. Protection of informational privacy is the provision’s central concern. . . . The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.^{^[1]} The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Court (2017) 3 Cal.5^th 531, 552 [cleaned up].)

“Legally recognized privacy interests [include] interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’) . . . .” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35 (hereafter, Hill).) “A particular class of information is [sensitive or confidential] when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.” (Ibid.)

It is “well-settled” that “patients have a right to privacy with respect to information contained in . . . [their] medical records.” (Grafilo v. Wolfsohn (2019) 33 Cal.App.5th 1024, 1034.) Indeed, a patient’s right to privacy “is protected by case law as well as state and federal statutes and regulations.” (County of Los Angeles v. Superior Court (2021) 65 Cal.App.5th 621, 641 (hereafter County of Los Angeles).) Additionally, “[t]he privacy interest in psychiatric records is particularly strong, and in some respects, entitled to more robust protection than other types of medical records.” (Grafilo v. Soorani (2019) 41 Cal.App.5th 497, 507.)

“As one court explained in discussing the examination of medical records vis-à-vis the right to privacy: the information that may be recorded in a doctor’s files is broad-ranging. The chronology of ailments and treatment is potentially sensitive. Patients may disclose highly personal details of lifestyle and information concerning sources of stress and anxiety. These are matters of great sensitivity going to the core of the concerns for the privacy of information about an individual.” (County of Los Angeles, 65 Cal.App.5th at pp. 641–642 [cleaned up].)

In Britt v. Superior Court (1978) 20 Cal.3d 844, 859, it was recognized that “the filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of . . . privacy.” However, the California Supreme Court held that “the scope of such ‘waiver’ must be narrowly rather than expansively construed.” (Ibid.) In other words, “while [a plaintiff] may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” (Ibid.) Therefore, it follows that a patient cannot reasonably expect certain matters to remain private if they are related to the specific issues that the patient has himself brought before a court. On the other hand, it is objectively reasonable to expect health care records that are unrelated to a current legal dispute to remain private.

With respect to the subject discovery requests, the Court finds Plaintiff’s objections as to her right to medical privacy is groundless, except as noted in the Court’s rulings below. Defendants’ form interrogatories, special interrogatories and demands for production of documents related to Plaintiff’s health care are narrowly tailored to the allegations in the Complaint.

· Form Interrogatories Nos. 1.1; 2.1 – 2.13; 4.1 – 4.2; 6.1 – 6.7; 7.1 – 7.3; 8.1 – 8.8; 9.1 – 9.2; 10.1 – 10.3; 11.1 – 11.2; 12.1 – 12.7; 13.1 – 13.2; 14.1 – 14.2; 20.1 – 20.11: GRANTED. [2]

· Special Interrogatories Nos. 22 – 24: DENIED. (Overbroad, Right to Privacy and Impermissible Discovery as stated.)

· Demands for Production of Documents Nos. 1 – 5, 7 – 8, 10 – 11 & 16: GRANTED. [3]

· Demands for Production of Documents Nos. 6, 9, 14 & 17 : DENIED. (Overbroad, Right to Privacy and Impermissible Discovery as stated.)

· Demands for Production of Documents Nos. 12 – 13 & 15: DENIED vis-à-vis Special Interrogatories Nos. 22 – 24 ONLY. (Overbroad, Right to Privacy and Impermissible Discovery as stated.)

A trial court may sanction a party for engaging in the misuse of discovery, which includes: failure to respond or submit to an authorized method of discovery; making an evasive response to discovery; making, without substantial justification, an unmeritorious objection to discovery; and making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (Code Civ. Proc., § 2023.010.)

In addition, Code of Civil Procedure section 2030.300, subdivision (d) provides: “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (See also Code Civ. Proc., § 2031.310, subd. (h).)

Here, Defendants seek monetary sanctions in connection with the motions based upon Plaintiff’s failure to provide complete, substantive responses to the subject discovery requests. The Court finds Defendant’s failure, in part, to provide complete, substantive responses to be an abuse of the discovery process, warranting monetary sanctions. Accordingly, the Court will impose monetary sanctions against Plaintiff and counsel for Plaintiff, Narayan Law, APC, in the amount of $1575.00 which represents seven hours of attorney time to prepare the moving and reply papers and attend the hearing at $225 per hour.

Therefore, the Court grants, in part, Defendants’ motions to compel further responses (Motions A-C) per Code of Civil Procedure sections 2030.300 and 2031.310, and orders Plaintiff to serve further verified and substantive responses to the subject Form Interrogatories, Special Interrogatories and Request for Production of Documents, within 30 days of notice of the Court’s orders, as set forth above.

Further, the Court orders Plaintiff and counsel for Plaintiff, Narayan Law, APC, to pay monetary sanctions in the amount of $1575.00 to Defendants, by and through counsel for Defendants, within 30 days of notice of the Court’s orders.

Defendants shall provide notice of the Court’s orders and file a proof of service of such.

[1] “This initial inquiry is necessary to permit courts to weed out claims that involve so insignificant or de minimis an intrusion on constitutionally protected privacy interests as not even to require an explanation or justification by the defendant.” (Lewis v. Superior Court (2017) 3 Cal.5th 561, 571 [cleaned up].)

[2] “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible. If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Code Civ. Proc., § 2030.220, subds. (a)-(c).)

[3] Code of Civil Procedure section 2031.230 requires “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

DEPARTMENT	32
HEARING DATES	March 27, 2023 March 28, 2023
CASE NUMBER	21STCV01798
MOTIONS	Motions to Compel Further Responses To: 1. Form Interrogatories, Set 1 2. Special Interrogatories, Set 1 3. Demands for Production of Documents, Set 1
MOVING PARTIES	Defendants Access Services, MV Transportation, Inc.
OPPOSING PARTY	Plaintiff Edith Landaverde