TENTATIVE RULING

Calendar: 5

Date: 9/8/2023

Case No: 23 GDCV00570 Trial Date:  None Set  

Case Name: Kouyoumjian v. Tenner 

MOTION TO COMPEL FURTHER RESPONSES 

TO DOCUMENT REQUESTS

Moving Party: Plaintiff Kevork Kouyoumjian    

Responding Party: Defendant Mary Tenner 

RELIEF REQUESTED:

Further Responses to Request for Production of Documents  

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Kevork Kouyoumjian alleges that on January 3, 2023, plaintiff was driving his 2021 Cadillac Escalade Sport Platinum down the street just outside of his mother’s home in Glendale, when defendant Mary Jenner, pulling her car out of her driveway, struck plaintiff’s car.  Defendant exited the car and apologized.  

Plaintiff alleges that his car was damaged, and defendant, and/or her insurance carrier, repaired the car, but have refused to repair it to the state it was in beforehand, including refusing to fully wrap the car.  Plaintiff alleges that defendant has failed to pay the proper amount for the loss of use of the vehicle, and for the diminution in value, and that the delay in failing to cover the wrapping exacerbated plaintiff’s damages.  The complaint alleges causes of action for motor vehicle negligence and negligence.  

ANALYSIS:

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action...if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  The section specifically provides that “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

CCP § 2031.310 provides that a party demanding a document inspection may move for an order compelling further responses to the demand if the demanding party deems that:…

 “(3)   An objection in the response is without merit or too general.”  

Under CCP § 2031.310 (b)(1), “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”  

The burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery.   Glenfed Develop. Corp. v. Superior Court (1997, 2nd Dist.) 53 Cal.App.4th 1113, 1117.   Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure.   See Hartbrodt v. Burke (1996, 2nd Dist.) 42 Cal.App.4th 168, 172-174.

“Produce ALL DOCUMENTS CONCERNING why YOU think Plaintiff is not entitled to any damages from YOU as alleged in the complaint.”

“Objection. The demand does not specifically or sufficiently describe each individual item or reasonably particularize a category of item sought by the demand as required by Code of Civil Procedure section 2031.030(c)(1). Additionally, contention discovery is limited to interrogatories. (Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1261.) Legal contention questions include asking a party to identify all documents that support or pertain to a particular contention. (Id., at p. 1259.) Unlike Code of Civil Procedure section 2030.010(b), which authorizes contention interrogatories, Code of Civil Procedure section 2031.010 et seq. does not authorize propounding contention document demands. Further, the demand seeks documents protected by the attorney work product privilege. Identifying and/or disclosing documents defense counsel determines to support defendant’s contentions would necessarily disclose counsel’s thoughts, strategy, conclusions, etc. Therefore, privilege log cannot and need not be provided based on the demand itself, because identifying the specific documents would disclose defense counsel’s tactics and strategy in preparing the case for trial, which is protected attorney work product and not discoverable. (Code Civ. Proc., § 2018.020.)”

Here, while the declaration in support of the motion is not ideal, it does indicate that the subject request is a request that even defendant is characterizing as a contention request for production.  [Wagner Decl., para. 2].  As noted above, a review of the request itself confirms that it is seeking directly relevant discovery, in effect documentation supporting defendant’s position that no damages are owed to plaintiff.  The court under the circumstances finds that good cause is established by the declaration, shifting the burden to defendant. 

Defendant in opposition does not discuss or justify the objection that the requests does not specifically or sufficiently describe each individual item or reasonably particularize a category of item sought by the demand.  The Court accordingly finds this objection has not been justified, and it is overruled. 

Defendant argues that contention requests for production are not authorized under the Discovery Act sections pertaining to document demands, and that plaintiff relies on authority pertaining to interrogatories, not document demands.   

As noted above, under 2017.010, pertaining to all discovery, “discovery may relate to the claim or defense of the party seeking discovery or of any other party…”    

This comment suggests that contention requests for production of documents are not affirmatively disallowed by the Discovery Act, but it is contemplated that discovery concerning what evidence defendant thinks supports her defense would be discoverable.    

Defendant points out that the Discovery Act in connection with interrogatories expressly permits the propounding of contention interrogatories, but that no corresponding section appears in connection with document demands.  It is true that CCP section 2030 .010(a) expressly permits the propounding of contention interrogatories:

“An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based.   An interrogatory is not objectionable because an answer to it involves an opinion or a contention that relates to fact or the application of law to facts, or would be based on information obtained or legal theories developed in anticipation of litigation.” 

 

Defendant relies on Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, in which the Second District reversed a trial court order compelling a party deponent to answer “contention” questions at a deposition.  The Second District reviewed the authorities governing such discovery, and concluded:

“We conclude that contention questions of the kind at issue in this case, while entirely appropriate for interrogatories, are not proper in the deposition of a party who is represented by counsel.”

Rifkind, at 1259. 

“As one commentator put it, legal contention questions require the party interrogated to make a "law-to-fact application that is beyond the competence of most lay persons." (1 Hogan, Modern California Discovery, supra, § 5.9, p. 252.) Even if such questions may be characterized as not calling for a legal opinion (see Singer v. Superior Court, supra, 54 Cal.2d at p. 326), or as presenting a mixed question of law and fact (see 4A Moore's Federal Practice (2d ed.) § 33.17[2], p. 33-85), their basic vice when used at a deposition is that they are unfair. They call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot. There is no legitimate reason to put the deponent to that exercise. If the deposing party wants to know facts, it can ask for facts; if it wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory. The party answering the interrogatory may then, with aid of counsel, apply the legal reasoning involved in marshaling the facts relied upon for each of its contentions. That, we believe, is a principal basis of the Supreme Court's dicta in Pember II, and of the federal authorities. It is a major reason why, as Professor Hogan puts it, "[t]aking the oral deposition of the adverse party is neither a satisfactory nor a proper way to satisfy" the interrogating party's desire to learn which facts a party thinks support its specific contentions. (1 Hogan, supra, § 5.9, p. 252.) "[T]he most suitable tool" for obtaining this kind of information is the written interrogatory, because "[t]his discovery device provides time for reflection as well as the assistance of counsel in formulating a reply. The interrogatory method of discovery takes on an added dimension when employed for this purpose. It is not confined, as is an oral deposition, to learning what a party has done, seen, heard, or been told. So used, the interrogatory becomes an instrument for forcing one's opponent (or, more realistically, the opponent's attorney) to engage in a rather sophisticated process of legal reasoning. This process will require the responding party to sort through the mass of available factual data and arrange it in terms of the particular contentions that are being made." (1 Hogan, supra, § 5.9, p. 253.)  As the United States District Court put it in the Lance case, "[t]his is what lawyers are for." (32 F.R.D. at p. 53.)

Rifkind, at 1262-1263. 

As set forth above, there is in fact a general discovery statute which authorizes discovery into the defenses of a party, CCP section 2017.010. 

In addition, as plaintiff argues, the rationale set forth in Rifkind focuses on the difference between written discovery when a party has a lawyer to help craft responses, and when a party has to answer on its own at deposition, and that it was not proper to have a lay person at a deposition try to apply the facts to law.  The case does not indicate that the objection found proper in Rifkind applies to discovery other than a deposition, and its rationale appears limited to the situation where a deponent party has to answer without the assistance of counsel, and on the spot, without access to documents and other information not readily at hand.  That situation is not the case here.  

Plaintiff relies heavily on arguments based on interrogatories, including that Judicial Council Form Interrogatories authorize an interrogatory calling for the identification of all documents supporting a party’s defenses.  [See Form Interrogatory No. 15.1 (c)].  While defendant argues that these arguments are irrelevant in connection with an actual document demand, it is ordinarily understood that the form request to identify documents is proper, and that if there is a follow-up request to produce those clearly discoverable documents, specific objections to production may be made where appropriate or a protective order may be sought.   See Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 293, a Second District case cited by defendant in the opposition (observing, “petitioners have no right to refuse to identify documents in response to interrogatories, even if they may properly refuse to produce them later, based upon a claim of privilege.”).  

In any case, this objection is overruled.  

Defendant also argues that her attorney work product objection is appropriately asserted in response to the request for production. 

The work product doctrine is codified at CCP sections 2018.020 and 2018.030, which provide:

CCP § 2018.020

“(a) It is the policy of the state to do both of the following: 

(1) 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.

(2) Prevent attorneys from taking undue advantage of their adversary’s industry and efforts.”

CCP § 2018.030:

(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories shall not be 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.”

As set forth in the statute, writings reflecting the attorney’s mental processes are absolutely protected, while all other work product enjoys the “qualified” privilege set forth in subdivision (b), so that the court may permit discovery upon a showing of unfair prejudice or injustice.  

An otherwise nonprivileged communication does not become privileged simply by transmitting it to an attorney.  See Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 119 (“documents prepared independently by a party, including witness statements, do not become privileged communications or work product merely because they are turned over to counsel.”).  

In Coito v. Superior Court (2012) 54 Cal.4th 480, the California Supreme Court addressed the issue of whether witness statements obtained by counsel constituted work product, and noted:

“only derivative or interpretive material—material created by or derived from an attorney's work reflecting the attorney's evaluation of the law or facts—constitutes work product. Examples of such material include “diagrams prepared for trial, audit reports, appraisals, and other expert opinions, developed as a result of the initiative of counsel in preparing for trial.” (Mack, at p. 10.) Nonderivative material—material that is only evidentiary in nature—does not constitute work product. Examples of such material include the identity and location of physical evidence or witnesses. (Ibid.; City of Long Beach, at p. 73.)

Coito, at 489-490. 

The party claiming the work product privilege bears the initial burden of showing facts necessary to support the privilege.  See Wellpoint v. Superior Court (1997 2nd Dist) 39 Cal.App.4th 110.  

The burden then shifts to the party opposing the privilege to show that the claimed privilege does not apply or that an exception exists or that there has been an expressed or implied waiver.   Id., citing Lipton v. Superior Court 48 Cal.App.4th at 1619. 

In fact, CCP §2031.240 requires that any documents withheld on the basis of privilege be identified with particularity and with a statement of the specific ground for the objection:

“(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

 (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

(c) 

 (1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.

 (2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.”

Under CCP section 2031.210, a response shall either be a statement of compliance, a representation that the party lacks the ability to comply, or an objection. 

With respect to a statement of compliance, CCP section 2031.220 requires:

“A statement that a party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being make will be included in the production.”

With respect to a statement of inability to comply, CCP section 2031.230 requires:

“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonably 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.”

Sanctions 

CCP § 2031.310 (h) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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.” 

  

Under CCP § 2023.010, misuse of the discovery process includes “(e) Making, without substantial justification, an unmeritorious objection to discovery.”  Where there has been misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  

The burden is on the party subject to sanctions to show substantial justification or injustice.  Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436. 

 

The response served included objections which responding party has failed to justify, and responding party has clearly made the motion necessary.  Responding party argues that the response included proper objections, which argument has been rejected above, and no other ground of substantial justification or injustice has been asserted.  Sanctions are awarded. 

The sanctions sought in the notice and moving papers are $1,560.  Defendant argues that the sanctions cannot be awarded because the declaration submitted does not break down the time spent on specific tasks to enable defendant to determine if the time spent was on this dispute or was reasonable.  

CCP § 2023.040 requires that:

 “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.  The notice of motion shall be supported by a memorandum of points and authorities and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

[Emphasis added].

The declaration here states:

“Plaintiff seeks sanctions against Defendant and/or her attorney of record for the necessity of filing of the motion, and other relevant correspondence and research, including the filing fees. Plaintiff seeks $1,560. My reasonable rate in this matter is at least $650 per hour. I have been practicing law since 2004 and have extensive litigation experience.”

[Wagner Decl., para. 3]. 

RULING:

Plaintiff’s Motion for an Order 1) Compelling Further Verified Responses to Plaintiff’s Request for Production of Documents, and Documents, to Defendant is GRANTED. 

Defendant Mary Tenner is ordered to serve a further verified response to Plaintiff’s Requests for Production of Documents, Request No. 6, and to permit inspection and copying within ten days. 

The further response must fully comply with CCP §§  2031.210, 2031.220 and 2031.230, including either 1) a statement that responding party will comply with the particular demand, including a statement that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of defendant and to which no objection is being make will be included in the production, or 2) a statement of inability to comply, which statement shall specify whether any 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, and which sets 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.  

Except as noted below, the further response is to be without objection. 

The further response may assert, if appropriate, and as to specified documents, an objection based on attorney work product privilege.  To the extent defendant withholds any document based on work product privilege, the response must fully comply with CCP §2031.240 (b) and (c): 

“(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

(c) (1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.

A privilege log shall be provided.  

All other objections are OVERRULED. Defendant has failed to justify all other objections, and the Court finds those objections asserted to be without merit.  

Further response is to be served, and inspection and copying permitted, within ten days.  

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $1,560.00.

(2.4 hours @ $650/hour) [2.4 hours requested] [Amount Requested $1,560], which sum is to be awarded in favor of plaintiff Kevork Kouyoumjian and against defendant Mary Tenner, and plaintiff’s counsel of record, jointly and severally, payable within 30 days.   CCP §§ 2031.310 (h), 2023.010 (e), and 2023.030(a).

Monetary sanctions requested in the opposition are DENIED.  

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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