Judge: Michael E. Whitaker, Case: 23SMCV05012, Date: 2025-03-04 Tentative Ruling

Case Number: 23SMCV05012    Hearing Date: March 4, 2025    Dept: 207

TENTATIVE RULING

MOTION

            This case arises from an automobile collision.  On October 24, 2023, Plaintiff Alon Hatvil (“Plaintiff”) filed suit against Defendants Detrice F. Shutman (“Shutman”); EAN Holdings, LLC (“EAN”); Unite Here Local (“Unite”); and Nsikan Moses Udo (“Udo”) (together, “Defendants”) alleging two causes of action for (1) motor vehicle and (2) general negligence.

            Trial was originally scheduled for March 10, 2025.  As such, the discovery cut-off was Monday, February 10, 2025.  At the final status conference on February 21, 2025, the 7-day jury trial was continued to March 24, 2025, but the discovery cut-off date was not extended.  (Minute Order, Feb. 21, 2025.)  The Court expressly indicated, “All discovery is closed to the extent there are pending depositions to be completed.”  (Ibid.)

            On February 12, 2025, Plaintiff served Defendant Shutman with a Notice to Appear at Trial in Lieu of Subpoena and Notice to Produce at Trial (“Notice to Appear and Produce”), asking Defendant to produce the following at trial:

1. Any and all surveillance video(s) of Plaintiff ALON HATVIL.

2. Any and all written reports regarding surveillance video(s) of Plaintiff ALON HATVIL.

3. Any and all documents evidencing payments related to surveillance video(s) of Plaintiff including but not limited billing and/or invoices.

4. Any and all surveillance photographs of Plaintiff ALON HATVIL.

5. Any and all written reports regarding photographs of Plaintiff ALON HATVIL.

6. Any and all documents evidencing payments related to photographs of Plaintiff including but not limited billing and/or invoices.

7. Any and all documents regarding investigation of Plaintiff ALON HATVIL’S physical activities

            On February 17, 2025, Shutman served objections only to the Notice to Appear and Produce.

            Plaintiff now moves to compel Shutman to appear at trial and produce the items requested above, pursuant to Code of Civil Procedure section 1987, subdivision (c).  Shutman opposes the motion.

LEGAL STANDARD

Code of Civil Procedure section 1987 provides that service of a subpoena to appear as a witness at trial and to bring documents or other things shall be served at least 20 days prior.  Within five days thereafter, the subpoenaed party may serve written objections.  Thereafter, upon notice motion of the requesting party, on a showing of good cause, the court may order the production of the items, unless the subpoenaed party establishes good cause for the nonproduction or production under limitations and conditions.  (Code Civ. Proc., § 1987, subd. (c).)

Pursuant to Code of Civil Procedure section 2030.290, “[i]f a party to whom interrogatories are directed fails to serve a timely response . . . [t]he party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or the protection for work product under Chapter 4 (commencing with Section 2018.010.  . . .   [and] The party propounding the interrogatories may move for an order compelling response to the interrogatories.”  (Code Civ. Proc., § 2030.290, subds. (a)-(b).) 

ANALYSIS

            Throughout the course of discovery, Plaintiff propounded various interrogatories and requests for production on Shutman, requesting video and photographic surveillance evidence of the incident and of Plaintiff.  Although Shutman identified 2 scene photographs in response to form interrogatory 12.4, no such photographs or video surveillance was produced in discovery, and the discovery responses were not amended or updated.

            In response to the subpoena requesting that Shutman appear and bring documents to trial, Shutman objected on the grounds of attorney work product, among other grounds.  Plaintiff now moves to compel on the grounds that Shutman’s objections to the Notice to Appear and Produce at trial make it unclear whether such evidence in fact exists, despite Shutman’s prior discovery responses to the contrary.

            Shutman opposes the motion on the grounds that (1) Shutman cannot be compelled to appear as a witness at the trial or bring documents thereto because Shutman was not a California resident when the Notice to Appear and Produce was served; (2) this motion is an improper attempt to do an end-run around the discovery cut-off deadline; (3) Plaintiff has not shown good cause to compel the production of the requested evidence; (4) Plaintiff’s request should be denied to the extent it seeks photographs and videos taken at the behest of counsel that are protected attorney work product; and (5) Shutman is not required to disclose impeachment witnesses or evidence. 

            The Court generally agrees with Shutman.  Code of Civil Procedure section 1989 provides, “A witness, including a witness specified in subdivision (b) of Section 1987, is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service”

At deposition on February 3, 2025, Shutman stated she is not a resident of California and has been a resident of Chicago, Illinois since August 2024.  (Ex. A at p. 32:16-22.)  Thus, Shutman cannot be compelled to appear as a witness or bring evidence to trial pursuant to Code of Civil Procedure section 1987.

Furthermore, Shutman’s discovery responses indicate that no such evidence existed in Shutman’s possession, custody, or control at the time the responses were made.  To the extent Shutman later obtained any such evidence, Shutman was not obligated to supplement the initial discovery responses because California law does not impose any such continuing duty to supplement.  (See Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1328 [“The responding party need only provide such information as is available at the time the answers are prepared. There is no duty to update or amend the answers, either to correct errors or to include new information discovered later”].)

Moreover, to the extent any such evidence came into Shutman’s possession, custody, or control because it was subsequently created at the behest of Shutman’s counsel, such evidence may be protected by the attorney work product doctrine.  (See, e.g. Coito v. Superior Court (2012) 54 Cal.4th 480, 494.)

As such, Plaintiff has not demonstrated good cause to compel Shutman to appear at the trial or bring any of the requested evidence.  As Plaintiff concedes, it is not even clear if any such nonprivileged evidence exists.  And even if it does, Plaintiff does not provide good cause why Plaintiff failed to raise an appropriate motion to compel prior to the discovery cut-off.

CONCLUSION AND ORDER

Therefore, the Court denies Plaintiff’s motion to compel Shutman to appear as a witness at trial and to produce the requested documents and things. 

Plaintiff shall provide notice of the Court’s order and file the notice with a proof of service forthwith.

DATED:  March 4, 2025                               ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court