Judge: Ronald F. Frank, Case: 19STCV27545, Date: 2023-04-27 Tentative Ruling

Case Number: 19STCV27545    Hearing Date: April 27, 2023    Dept: 8

Tentative Ruling¿¿ 

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HEARING DATE:                 April 27, 2023¿¿ 

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CASE NUMBER:                  19STCV27545

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CASE NAME:                        Mihwa Kim, et al. v. Prime Pan-Pacific Co., et al. 

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MOVING PARTY:                Defendant, Prime Pan-Pacific C

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RESPONDING PARTY:       Plaintiffs, Wihwa Kim, Kwangwoo Kim, and Kwang Hee Kim

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TRIAL DATE:                        July 31, 2023

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MOTION:¿                              (1) Motion to Compel Further Responses to Requests for Production, Set One

                                                (2) Motion to Compel Further Responses to Special Interrogatories, Set One

Tentative Rulings:                  (1) Defendant’s Motion to Compel Further Responses to Requests for Production, Set One is DENIED

                                                (2) Defendant’s Motion to Compel Special Interrogatories, Set One is GRANTED in part, DENIED in part

                                                (3) The motions for monetary sanction are denied

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I. BACKGROUND¿¿¿ 

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A. Factual¿¿¿ 

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On August 6, 2019, Plaintiffs filed their Complaint. Plaintiffs’ operative First Amended Complaint (“FAC”) was filed on January 5, 2021. Plaintiffs allege the following facts. Plaintiffs’ decedent was a pedestrian operating a wheelchair. On December 13, 2017, Plaintiffs’ decedent was killed when a semi-trailer truck ran him over in the street. Defendant, Prime Pan-Pacific Company illegally blocked the sidewalk with a customer’s vehicle, which forced Plaintiffs’ decedent onto the downward slope of the driveway apron where he lost control and ended up in the street. The original Complaint alleged two causes of action for General Negligence and Motor Vehicle Negligence. In the FAC, Plaintiffs alleges the following causes of action: (1) Negligence; (2) Premises Liability; (3) Wrongful Death; and (4) Discrimination in Violation of Civil Code § 52.

Defendant’s motions state that on January 20, 2023, Defendant served Plaintiff with Requests for Production (Set One), and Special Interrogatories, Set One. Defendant further notes it gave an extension to Plaintiffs to provide responses on February 28, 2023, but Plaintiff failed to serve a timely response and served their responses to the discovery requests on March 1, 2023, the next morning after the extended deadline. As such, Defendant contends that Plaintiffs waived their objections and must provide full and complete responses to the written discovery sets.

Based on the above, Defendant has brought this Motion to Compel Further Responses to Requests for Production, Set One and Special Interrogatories, Set One.

B. Procedural¿¿¿ 

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On March 23, 2023, Defendant filed these Motion to Compel Further Responses to Requests for Production, Set One and Special Interrogatories, Set One. On April 14, 2023, Plaintiffs filed oppositions. On April 20, 2023, Defendant filed a reply brief. 

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¿II. MEET AND CONFER ¿¿¿ 

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Defendant notes  that on March 8, 2023, it sent Plaintiffs a Meet and Confer letter, detailing Defendant’s position regarding Plaintiffs’ deficient responses and requesting Plaintiffs’ position regarding their decision to supplement the responses. Defendant further notes that after several email exchanges, the parties were unable to come to an agreement as of March 21, 2023.

¿III. ANALYSIS¿¿ 

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A.    Legal Standard

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code of Civ. Proc. § 2017.010.) For discovery purposes, information is regarded as relevant “if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.” (City of Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272, 288.)  

A motion to compel further responses to a demand for inspection or production of documents (“RFP”) may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive, or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections.  (Code Civ. Proc., § 2031.310(c).) A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See Code Civ. Proc., § 2031.310(b)(1).) In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.) 

Further, “Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.”¿ (Code Civ. Proc., § 2030.010, subd. (a).)¿¿ “The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: (1) An answer containing the information sought to be discovered[;] (2) An exercise of the party's option to produce writings[;] (3) An objection to the particular interrogatory.”¿ (Code Civ. Proc., § 2030.210, subd. (a).)¿“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete[;] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[;] (3) An objection to an interrogatory is without merit or too general.”¿ (Code Civ. Proc., § 2030.300, subd. (a).)¿ 

"The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence." (Cal. Code of Civ. Proc. § 2017.020(a).) Generally, objections on the ground of burden require the objecting party to produce evidence of (a) the propounding party's subjective intent to create burden or (b) the amount of time and effort it would take to respond. (See West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.) However, no such evidence is necessary where discovery is obviously overbroad on its face. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

B.     Discussion

Here, Defendant notes that Plaintiffs have answered several responses with meritless objections (SROGs 10-12; 40-48; and 49-51; and RFPs 17-18, and 20.) Defendant notes the discovery requests were objected to on the basis that disclosure of any expert witness prior to any demand for exchange of expert witness material is premature. Although Defendant notes that normally, expert witness material may generally not be disclosed before an expert witness exchange demand is propounded, since the work-product doctrine protects such material, here the work-product doctrine cannot apply to the expert witness’s report or site inspection – to which Plaintiffs have referred in their Opposition to our Demurrer and Motion to Strike—since the content of this report is at issue and relevant to the statute of limitations issue and there is no other way of obtaining such information.

Specifically, Defendant notes that according to the previous litigation on the demurrer and motion to strike, the date at which Plaintiffs allegedly first became aware of the basis for Defendants’ alleged liability is a key question for the statute of limitations issue. As such, Defendant argues that it is impossible to litigate this issue without at least some disclosure of the expert witness material, including at least: information on the date the expert report was delivered to Plaintiffs (with documents confirming this) and the expert report’s conclusion regarding Defendants’ liability.

Motion to Compel re Special Interrogatories: GRANTED in part, DENIED in part

In regards to the Special Interrogatories, Set One, Plaintiff argues that further responses to Special Interrogatories 10-12 should be denied because the originals were sufficient and Defendant now only seeks premature disclosure of expert discovery. Plaintiff notes that in Interrogatories 10-12, Defendant asked for all facts (10), persons (11) and documents (12) that “in photographs and video footage, the sidewalk apron and darkened with what appears to be oil or grease or other contaminants.”  Plaintiffs further note that they responded that the only knowledge they have comes from the police report and the accompanying footage (bodycam and a traffic light camera, all of which they produced to Defendant. But that argument which paraphrased the plaintiff’s discovery responses (subject to objection) is not sufficient as a discovery response.  “Answers must be complete and responsive. Thus, it is not proper to answer by stating, “See my deposition,” “See my pleading,” or “See the financial statement.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783–784.)  Here, plaintiff’s response essentially says “see the police report” and “see the videos.”  A more proper response would reference the location and color of the stains on the apron, the proximity of a repair shop and other vehicles, and the like.  The further response can be given without disclosing expert opinions or reports. The Court GRANTS the motion to compel a further response to Rogs 10-12. 

Next, Plaintiffs argue in their oppositions, that further responses to special interrogatories 47-51 should be denied because they were not supported by a declaration for additional discovery. Plaintiffs note that Defendant’s declaration only provided for special interrogatories to reach No. 46. In reply, Defendant notes this was a typo, and his declaration meant to cover the entire set of discovery.   The Court accepts defense counsel’s candid admission of a mistake or careless typographical error, and finds given the context of the declaration for additional discovery that counsel’s declaration was intended to cover the entire set.

Lastly, in opposition, Plaintiffs argue that further responses to interrogatories 40-48 should be denied because they invade the attorney-client privilege, attorney work product, ask for premature disclosure of expert discovery and two are unsupported by a declaration for additional discovery. Rogs 40-42 reference a contention in a legal brief, not in a pleading or exhibit.  Plaintiffs claim that they all share a “peculiar phrasing” which does not simply seek information from Plaintiffs, but instead, seek information from an opposition to a demurrer prepared, signed, and filed by Plaintiffs’ counsel. Specifically: information that “support YOUR allegation in the OPPOSITION that PLAINTIFFS did not know the DECEDENT ran over by a semi-trailer truck was because DEFENDANT’S negligent, at the time of filing.” Plaintiffs claim they objected in response and during the meet and confer process because they argue the interrogatories seek the disclosure of attorney-client communications and/or attorney work-product. The Court concurs.  A legal brief is not verified by a party, sometimes contains hyperbole or argument, and cannot be the source of a “contention” interrogatory the way that allegations in the Complaint or in an Answer may permissibly inquire about.  The Court DENIES the motion to compel a further response to Rogs 40-42.   Rogs 43-45 seeks facts, witnesses, and documents pertaining to the police obtaining a report, audio, video, and related materials from the Defendant.   While the verified discovery response references the documents produced, it misses the mark by failing to explain why Plaintiff contends these materials were all obtained “from the Defendant.”  The motion to compel a further response to Rogs 43-45 is GRANTED. 

Rogs 46-51 seek the content of an expert report and other work product privileged information, which is not discoverable at this point for the reasons discussed above.  The mention of an expert report in a legal brief is not tantamount to a waiver of the content of the report, at least not prior to the time for expert designations.  The Motion to Compel as to those interrogatories is DENIED.

The Motion to Compel Documents: DENIED.

In regard to the Requests for Production, Set One, Plaintiff argues in opposition that Request 17 and 18 should be denied because the originals were sufficient and Defendants now only seek premature disclosure of expert discovery in violation of CCP §2034.210(c).   RFP 17 seeks production of the expert report, which implicitly seeks the report of a consultant retained by counsel who may or may not in the future be designated as an expert.  The objection is proper as the RFP specifically asks for premature disclosure of expert witness information, and the defense has failed to carry its burden of invading the work product privilege nor the privilege of delaying expert discovery until demand for exchange and disclosure occur. Documents privileged under the attorney work product doctrine are exempt for disclosure under the Discovery Act.  (League of Cal. Cities v. Superior Court (2015) 241 Cal.App.4^th 976, 993.)   CCP § 2034.230(b) permits a motion to order an expert witness exchange on an earlier date, for good cause shown; such a motion has not been filed as of yet.

California's civil work product privilege is codified in section 2018.030.  Derivative or interpretive material, such as what is created by or derived from an attorney's work in evaluating 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.’”  (Coito v. Superior Court (2012) 54 Cal.4th 480, 488, quoting Mack v Superior Court (1968) 259 Cal.App.2d 7, 10 [emphasis added].)  Coito held that “a witness statement obtained through an attorney-directed interview is, as a matter of law, entitled to at least qualified work product protection.”  (Coito, supra, 54 Cal.4th at p. 497.)  When an attorney hires a consultant to attend a site inspection and provide a report or statement as to what was observed or measured or tested, the consultant’s report is work product subject to being waived if and when the consultant is designated as an expert.  The defense’s assertion that the consultant report would reveal whether Does were timely added or not is speculative and by itself does not show good cause for invading the qualified work product privilege. 

RFP 18 seeks documents and communication relating to the site inspection conducted by the expert.  In Defendant’s reply brief, it argues that there is no adequate substitution for the Expert Report and Related Documents being sought in response to No. 17 and 18, again using its good faith argument. The Court finds Defendant has failed to carry its burden of demonstrating good cause to invade the work product protection given the expert and consultant reports, pending the designation of experts. 

Plaintiffs further argue that Request 20 should be denied because Plaintiff already responded that it would (and did) produce all documents in their possession, custody and control. Defendant did not address this in its reply brief.  RFP 20 seeks production of any documents, photographs and the like produced to Plaintiff in response to subpoena.  The Reply did not respond to Plaintiff’s assertion that Plaintiff agreed to supplement and provide copies of the subpoenaed documents. 

C.    Sanctions

Defendant requested sanctions in the sum of $750 against Plaintiffs for each of the two motions. Sanctions are denied at this time. Each side had substantial justification for its position.