Judge: Michael E. Whitaker, Case: 23SMCV05405, Date: 2024-12-11 Tentative Ruling

Case Number: 23SMCV05405    Hearing Date: December 11, 2024    Dept: 207

TENTATIVE RULING

MOTION

This case arises from a motor vehicle collision.  Plaintiff Dimas Murillo (“Plaintiff”) now moves to compel further responses from Defendant Ronald Paul Ackerman (“Defendant”) to Request for Production Set 1, No. 6 (“RPD”).  Defendant opposes the motion and Plaintiff replies.

Procedural Requirements

1.     Timeliness of Motion

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

Here, Plaintiff served the RPD on May 22, 2024, and Defendant served verified responses on June 24, 2024.  (Babakhanian Decl. ¶ 4 and Ex. 2.)  On Aug. 16, 2024, Defendant served a further response containing additional objections.  (Id. at ¶ 7 and Ex. 6.)  The parties attended an Informal Discovery Conference (“IDC”) on October 9, 2024, where the parties agreed to a mutual extension of October 23 to provide further responses and November 6 to file a motion to compel.  (Babakhanian Decl. ¶ 9 and Ex. 8.)  On October 23, Defendant served a second further response to the request for production, but no further response was provided for No. 6.  On November 6, Plaintiff filed the instant motion.

Therefore, Plaintiff’s motion is timely and Defendant has not objected to the timeliness of the motion. 

2.     Meet and Confer

            A motion to compel must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040.  (Code Civ. Proc., § 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 in 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.4th 1431, 1434-1435, citations omitted [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.”  (Townsend, supra, 61 Cal.App.4th at p. 1439; see also Clement v. Alegre (2009) 177 Cal.App.4th 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, supra, 61 Cal.App.4th 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) 67 Cal.App.4th 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 merely sending letters to each other stating each party’s respective positions.

            Here, as set forth in the Declaration of Anthony Babkhanian, the parties met and conferred at length and attended an informal discovery conference in an effort to informally resolve the issues presented in the motion. 

3.     Separate Statement

            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, Plaintiff has filed a separate statement related to the motion which complies with Rule 3.1345.

Analysis

1.     DISCOVERY – GENERAL PRINCIPLES

            “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.4th 377, 389 [cleaned up].)  

            Where a party objects, or responds inadequately, to 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.4th 245, 255; Code Civ. Proc., § 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.4th 725, 733 [cleaned up].)

            With respect to demands for inspection of documents or other items, the Discovery Act provides as follows:

The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:  (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.  (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.  (3) An objection to the particular demand for inspection, copying, testing, or sampling.

(Code Civ. Proc., § 2031.210, subd. (a).)  “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.”  (Code Civ. Proc., § 2031.230.)

2.     RPD No. 6

RPD No. 6 seeks “True and correct copies of all photographs, videos, or motion pictures which depict Plaintiff DIMAS MURILLO from one year before the day of the INCIDENT up to and including the present day. [As to photographs, only color copies of photographs will be deemed an acceptable response to this request. Plaintiff will pay reasonable copy costs.]”    

            Defendant served a further response to RPD No. 6 asserting:

·       Objection. Calls for premature disclosure of expert materials in violation of Code of Civil Procedure section 2034.010 et seq. Calls for information obtained during litigation and/or in anticipation of litigation. Violates work product doctrine. Nacht & Lewis Architects, Inc. v. Superior Court of Sacramento County (1996) 46 Cal.App.4th 214. Compound. Vague, ambiguous as to “photographs”, “videos”, and “motion pictures”. Overbroad in time and scope. Unduly burdensome and harassing as requested records are more readily available to Plaintiff.

(See Plaintiff’s  Separate Statement, p. 2.) 

a)     Burdensome/Vague/Other Objections to Form

            “The objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.”  (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.)  The California Supreme Court further noted that  “[s]ome burden is inherent in all demands for discovery.  The objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id. at p. 418.)        Here, Defendant has not made an adequate showing that responding to RPD No. 6 is burdensome. 

            With respect to vagueness, the Court finds unavailing Defendant’s contention that Defendant cannot discern from the request what Plaintiff seeks.  The Court finds RPD to be unambiguous.   

            Moreover, Defendant has failed to make an adequate showing in his opposition papers to support the objections of harassing, premature disclosure of expert materials, and compound.  Accordingly, the Court finds such objections to be unmeritorious. 

b)    Attorney Work Product Doctrine

            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 (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.4th at 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.5th 453, 468 [“The work product privilege is held by the attorney, not the client”].)  And the party that seeks the production of an attorney’s “work product,” other than a writing, “has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in injustice.”  (Id. at p. 469.)[1]  

            Here, Plaintiff seeks the production of photographs, videos or motions pictures of Plaintiff, one year before the underlying incident to the present (collectively, “Sub Rosa Evidence”), in the possession, custody and control of Defendant.  Plaintiff contends that good cause exists for the production to (1) protect against surprise at trial, and (2) facilitate settlement. 

            In opposition, Defendant contends that the Sub Rosa Evidence is the work product of counsel for Defendant, and consequently protected from disclosure under the attorney work product doctrine.  Further, Defendant intimates that he intends to use the Sub Rosa Evidence as impeachment evidence and is thus not required to produce such impeachment evidence.   

            In short, the question before the Court is whether the attorney work product doctrine precludes the disclosure, and production, of the Sub Rosa Evidence. 

            Defendant relies primarily on Suezaki v. Superior Court for the proposition that the attorney work product doctrine protects the Sub Rosa Evidence from being disclosed and produced.  Defendant’s reliance is faulty.  (Suezaki v. Superior Court (1962) 58 Cal.2d 166 (hereafter Suezaki).)  First, the California Supreme Court held that the motion pictures of the plaintiff taken by an investigator hired by the defendant’s attorney is not protected by the attorney-client privilege.  (Id. at p. 172.)  Second, the California Supreme Court noted that the motion pictures were the work product of the defendant’s attorney.  (Id. at p. 177.)  As such, the Suezaki Court stated as follows:

[I]n California the fact that the material sought to be discovered is the ‘work product’ of the attorney is one factor to be used by the trial court in the exercise of its discretion in determining whether or not discovery should be granted. It does not mean that, simply because the material involved is the ‘work product’ of the attorney, it can or should deny discovery. Something more must exist. The trial court must consider all the relevant factors involved and then determine whether, under all the circumstances, discovery would or would not be fair and equitable.

(Id. at p. 178.)  

             Against the backdrop of both parties’ positions, the Court finds Fisher v. National Railroad Passenger Corporation to be instructive.  In that case, the defendant obtained through an investigator surveillance of the plaintiff’s activities inconsistent with his claimed injuries which would be used to impeach the plaintiff at trial.  (Fisher v. National R.R. Passenger Corp. (S.D. Ind. 1993) 152 F.R.D. 145, 147 (hereafter Fisher).  The defendant objected to the production of the surveillance evidence before the plaintiff’s deposition based in part on the attorney work product doctrine.  Following the plaintiff’s deposition, the defendant produced a single surveillance video taken of the plaintiff that the defendant intended to use as evidence at trial.  The plaintiff nevertheless sought the production of all of the surveillance video evidence.  (Id. at p. 148.) 

            The issue before the Fisher court was “Whether surveillance tapes of a Plaintiff which Defendant does not intend to introduce at trial, but which it possesses, are discoverable by the Plaintiff prior to trial.”  (Fisher, supra, 152 F.R.D. at p. 150.)   In answering that question and finding that the plaintiff did not meet his burden to compel the production of the surveillance evidence, the Fisher Court stated:

Deciding if a party has demonstrated the requisite “substantial need” to justify discovery of work product involves a balancing of the value of broad discovery as an accurate method of arriving at a full resolution of each dispute with the corresponding need to prevent undue intrusion into the attorney's preparation of her case. Striking this balance is, at best, a discretionary decision of the court in the factual context of the presented case.  However, in exercising this discretion, relevant considerations include, among others, the importance of the protected materials to the party seeking discovery; the degree to which the protected material reflects the thoughts and mental impressions of an attorney but yet remains outside of that absolutely protected category of materials; the impeachment value of the material sought; and whether the party seeking discovery knows, or is merely surmising, that the materials sought contain impeaching material.

(Id. at pp. 151–152 [cleaned up].)  Further, the court noted:

Concluding that Plaintiff failed to make the showing required to invade work product is not meant to refute the notion that surveillance tapes prepared by a defendant to impeach a plaintiff may contain substantive evidence, rather than merely impeachment evidence.  To the contrary, the current weight of authority suggests that representations contained in videotapes are indeed substantive evidence, and retreats from the previously held belief that evidence used for impeachment is of a kind different and distinguishable from evidence used to prove a case. Nor is it questioned that the videotapes may be relevant to the issue of damages or harm suffered by plaintiff.  However, . . . not all relevant, substantive evidence is discoverable, especially if that evidence is protected attorney work product. Once conceded that work product protection extends to the disputed materials, a different inquiry altogether is warranted, one which requires Plaintiff to demonstrate substantial need for the protected materials. Merely claiming that surveillance tapes prepared in anticipation of litigation might contain substantive evidence, especially when an alternative source for that evidence exists, does not provide “substantial need” to invade attorney work product.

(Id. at p. 153.) 

            Foremost, it is unclear based upon the record whether Sub Rosa Evidence actually exists.    Yet to the extent that such evidence was developed at the behest of counsel for Defendant and such evidence exists because of the efforts of defense counsel, the work product doctrine may preclude the production of such evidence.  (See, e.g., Coito, supra, 54 Cal.4th at p. 495 [“witness statement is in part the product of the attorney’s work.  The witness statement would not exist but for the attorney’s initiative, decision, and effort to obtain it”].) 

            Notwithstanding, the Court finds that Defendant has failed to serve a code compliant response as required under the Discovery Act.  And if Sub Rosa Evidence exists and is responsive to RPD No. 6, but Defendant is withholding the production of such evidence, Defendant shall prepare and serve a privilege log along with his further code compliant response to RPD No. 6.

            Further, Plaintiff claims that the disclosure and production of the Sub Rosa Evidence will prevent unfair surprise at trial.  Plaintiff’s contention is meritorious provided that the Sub Rosa Evidence is utilized by Defendant pre-trial or at trial for any purpose including impeachment.  But whether the Sub Rosa Evidence has any probative value will depend on what Plaintiff discloses during the discovery process including at deposition.  Specifically, if Plaintiff discloses information which is consistent with the Sub Rosa Evidence, then such evidence loses its potential impeachment quality and may not be utilized by Defendant.  At this juncture, Plaintiff is in the best position to determine whether any surveillance of Plaintiff would be consistent with Plaintiff’s alleged injuries, and to present evidence through Plaintiff’s own testimony regarding the extent of injuries which may or may not affect life activities. 

            Equally important, Defendant asserts that Sub Rosa Evidence, if any, will be merely impeachment evidence to be used at trial.  As such, Defendant argues that the production of Sub Rosa Evidence is precluded under the attorney work product doctrine.  Yet “the defendant cannot have it both ways.  If it chooses this course, it does so with the understanding that the attorney-client privilege and the work product doctrine are thereby waived.”  (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128 [at issue was whether a pre-litigation investigation report should be produced during discovery].)  Similarly, the California Supreme Court has held that an attorney cannot simultaneously advance work product in an affirmative fashion and preclude disclosure of such work product.

Much like the work product doctrine itself, this second theory of implied waiver is premised on the need to protect the integrity of the judicial proceeding. The cases recognize that allowing one party to rely on a document to establish key facts while simultaneously shielding that same document from the other side works an unfair adversarial advantage. Considerations of basic fairness accordingly may require disclosure of otherwise privileged information or communications where a party has placed in issue a communication which goes to the heart of the claim in controversy.

Courts have found implied waiver in a variety of litigation contexts.  In Nobles, for example, the United States Supreme Court rejected an argument that criminal defense counsel could simultaneously rely on a testifying defense investigator to impeach the credibility of a critical prosecution witness while also claiming the investigator's report was protected by the work product doctrine. The court explained: “At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. ... [¶] ... Respondent, by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony.” 

(People v. Superior Court (Jones) (2021) 12 Cal.5th 348, 363 [cleaned up].)   Here, the Court finds Defendant’s argument to be equally unavailing even if Defendant intends to use the Sub Rosa Evidence for impeachment purposes only.                  

CONCLUSION AND ORDERS

Therefore, the Court grants Plaintiff’s motion to compel further responses to RPD No. 6.  Defendant shall serve verified code compliant responses, per Code of Civil Procedure section 2031.310, consistent with the Court’s ruling, within 20 days of notice of this order.  

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

DATED: December 11, 2024                                     ___________________________

                                                                                    Michael E. Whitaker

                                                                              Judge of the Superior Court