Judge: Serena R. Murillo, Case: 22STCV12562, Date: 2023-02-15 Tentative Ruling
Case Number: 22STCV12562 Hearing Date: February 15, 2023 Dept: 29
Claimant Said Mohammed Said’s
motion for reconsideration is CONTINUED for supplemental briefing.
Petitioner Indian
Harbor Insurance Company is ordered to file a supplemental brief at least 15
days prior to the next hearing to respond to Claimant’s contentions that California
requires licenses for private investigators who investigate injury, and only
one private investigator’s license is associated with Hub, and thus, no one
else at Hub could have conducted this surveillance footage of Hub. Alternatively
(or in addition), Petitioner may offer supplemental information as to the
origination of this surveillance footage.
Claimant Said Mohammed Said may then respond
to Petitioner’s in his own supplemental brief at least 5 days before the next
hearing.
Both parties are also ordered to
show when notice of the Court’s July 22, 2022 ruling was given.
Legal Standard
A party's right to seek reconsideration of an order
is governed by Code of Civil Procedure section 1008, which provides, in
pertinent part: “When an application for an order has been made to a judge, or
to a court, and refused in whole or in part, or granted, or granted
conditionally, or on terms, any party affected by the order may, within 10 days
after service upon the party of written notice of entry of the order and based
upon new or different facts, circumstances, or law, make application to the
same judge or court that made the order, to reconsider the matter and modify,
amend, or revoke the prior order. The party making the application shall
state by affidavit what application was made before, when and to what judge,
what order or decisions were made, and what new or different facts,
circumstances, or law are claimed to be shown.” (CCP
§¿1008(a).)
A motion for reconsideration must be based on “new or different facts,
circumstances, or law”; facts of which the party seeking reconsideration was
aware at the time of the original ruling are not “new or different.” (Garcia
v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) “According to the plain language
of the statute, a court acts in excess of jurisdiction when it grants a motion
to reconsider that is not based upon ‘new or different facts, circumstances, or
law.’” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) In addition, a party must
provide a satisfactory explanation for failing to offer the evidence in the
first instance. (New York Times Co. v. Superior Court (2005) 135
Cal.App.4th 206, 213.)
Moreover, the court
retains the inherent authority to amend its own orders on its own motion. (Le
Francois v. Goel (2005) 35 Cal. 4th 1094, 1107.) The court’s inherent authority to reconsider and
correct its own orders is constitutionally derived. (Walker v. Superior
Court¿(1991) 53 Cal.3d 257, 267.)
A court “must exercise due consideration before modifying, amending, or
revoking its prior order.” (Case v. Lazben Financial Co. (2002) 99
Cal.App.4th 172, 189.) A
court’s inherent power to reconsider interim rulings may be exercised “even in
the absence of newly discovered evidence” and “[e]ven without a change of law.”
(Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d
1222, 1231, Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th
227, 237.) Thus, the inherent power is distinct from a court’s power under CCP
§ 1008 following a motion for reconsideration. (Kerns v. CSE Ins. Group
(2003) 106 Cal.App.4th 368, 389: “Consequently, we hold that the separation of
powers doctrine precludes an interpretation of section 1008 that would deprive
a trial court of jurisdiction to reconsider its own interim orders sua
sponte.”)
Discussion
Pursuant to CCP section 1008(a)
and the Court’s inherent authority to act sua sponte, Claimant moves for
reconsideration of the Court’s July 22, 2022 order granting Petitioner’s motion
to quash a deposition subpoena relating to sub rosa evidence. Claimant
argues that recently discovered evidence not previously available, reveals that
the Petitioner and its counsel of record have misrepresented material facts
concerning Michael C. West’s involvement in this matter (as the
alleged private investigator who conducted the sub rosa video at issue).
Claimant argues that contrary to Petitioner’s counsel’s representation that the
sub rosa surveillance at issue is privileged, newly obtained evidence
provided by West, reveals that not only was he never involved
with sub rosa video, but that he had never heard of, let alone had any
involvement in the instant action, until being served with Respondent’s
deposition subpoena. (Shirian Decl., ¶ 6, Ex. A.) Claimant argues that
Petitioner’s counsel declared under penalty of perjury, that West was the
private investigator hired by Petitioner to conduct the surveillance at issue.
Claimant contends that in its July 22, 2022 ruling, the Court placed
substantial weight on Petitioner’s factual assertion in finding that qualified
work-product applied to the sub rosa video, by virtue of West’s
involvement. (Id., ¶¶ 9, 13, Exs. A, C.)
In opposition, Plaintiff argues
that Michael C. West is the qualified manager for the California private
investigation license for Hub Enterprises. There was no misuse of the discovery
process, no misleading information, nor any subterfuge. Counsel correctly and
accurately stated: “Hub Enterprises was retained by Indian Harbor to conduct
surveillance of Claimant Said. Hub Enterprises engaged Michael C. West to
conduct the surveillance. Michael C. West obtained surveillance on December 6,
2019 and December 7, 2019.” These statements are all true and accurate since
Michael C. West is the qualified manager for the California private investigation
license for Hub Enterprises. The fact that that the actual surveillance was
performed by an assigned investigator, and not by Michael C. West himself, is
totally irrelevant and provides no new facts of circumstances to merit
reconsideration.
In reply, Claimant argues that the
public record reflected within the California Bureau of Security &
Investigative Service’s (“BSIS”) public database unequivocally identifies two
sole Private Investigator California licenses with the same number,
and one Private Investigator Branch/Manager California license,
as the only California Private Investigator licenses ever associated with HUB;
each of the licenses listed belonging to West. (Shirian Decl., ¶ 4, Ex. A.)
Importantly, BSIS requires licensure for investigators who investigate “the
cause of fires, losses, accidents, damage or injury, or secure[]
evidence for use in court.” (Id., ¶ 5, Ex. B.) Accordingly, Claimant argues,
the record makes clear that the only California licensed private investigator,
who could have legally conducted the sub rosa video surveillance on December 6, 2019,
and December 7, 2019, would have to be West; not “some other
investigator.”
First, the Court notes that
Claimant concedes the motion is not timely under CCP section 1008(a). The
motion was filed on January 5, 2023. The prior ruling was issued on July 22,
2022. However, Petitioner was ordered to give notice of the ruling. No party
has filed any evidence regarding when notice was given. An affected party has 10 days after service upon the party of written notice of entry of the
order to file this motion. (CCP section 1008(a). Thus, the Court cannot decide if it is
untimely.
Nevertheless, as Claimant also
moves for reconsideration under the Court’s inherent authority, the following
analysis applies equally.
Petitioner’s
position is that the sub rosa evidence at issue is entitled to work
product protection. Thus, Petitioner is required to show preliminary
foundational facts that the discovery would reflect an attorney’s tactics,
impressions or evaluations of the case.
“Instead, we hold that a witness statement
obtained through an attorney-directed interview is entitled as a matter of law
to at least qualified work product protection. A party seeking disclosure has
the burden of establishing that denial of disclosure will unfairly prejudice
the party in preparing its claim or defense or will result in an injustice. (§
2018.030, subd. (b).) If the party resisting discovery alleges that a witness
statement, or portion thereof, is absolutely protected because it “reflects an
attorney's impressions, conclusions, opinions, or legal research or theories”
(§ 2018.030, subd. (a)), that party must make a preliminary or foundational
showing in support of its claim.”
(Coito v.
Superior Court (2012) 54 Cal. 4th 480, 499-500.) If West disclaims ever
conducting the footage at issue here, and according to Claimant’s evidence,
California requires licenses for private investigators who investigate injury,
and only one private investigator’s license is associated with Hub, then no one
else at Hub could have conducted this surveillance of Claimant as Petitioner
contends is the case here. As a result,
as it stands now, Petitioner has not shown how the video and documents were
originated.
Was the sub
rosa evidence originated through counsel or the insurance company in the
ordinary course of business? In Wilson v.
Superior Court of Los Angeles County (1964) 226 Cal. App. 2d 715, the Court
ultimately found that the work-product privilege did not attach because the
investigator who investigated the incident was not hired by counsel. It held
that it is an attorney’s work that is subject to a privilege.
“Nor can we see, under the facts of this
case, any possible basis for a reliance on the so-called ‘work product’
doctrine. As the trial judge pointed out in his memorandum, Robinson was hired
by an agent of the insurance carrier, not by defense counsel; the matters as to
which he was questioned took place before the lawsuit was filed and (at least
as far as the declarations show) long before counsel was retained by or on
behalf of defendant. Whatever the extent of the concept of an attorney's work
product may be, it is clear that, given the broadest possible definition, it is
still the attorney's work, or that of his agents or employees, that is involved,
and the attorney cannot, by retroactive adoption, convert the independent work
of another, already performed, into his own.”
(Id., at 724.)
Suezaki adopts the same
approach. If the surveillance videos were taken solely as part of an attorney’s
preparation, the videos would be entitled to work product protection. (Suezaki v. Superior
Court of Santa Clara County (1962) 58 Cal. 2d 166, 177.)
As a result, the
Court will order supplemental briefing on this matter. Petitioner is ordered to
file a supplemental brief at least 15 days prior to the next hearing to respond
to Claimant’s contentions that California requires licenses for private
investigators who investigate injury, and only one private investigator’s
license is associated with Hub, and thus, no one else at Hub could have
conducted this surveillance footage of Hub. Alternatively, or in addition, Petitioner
may offer supplemental information as to the origination of this surveillance
footage. The Court needs the preliminary foundational facts that the discovery
would reflect an attorney’s tactics, impressions or evaluations of the
case. If this foundation is lacking,
then the Court would ultimately need to vacate its prior order and deny the
motion to quash as there would be nothing to support the contention that this sub
rosa evidence is qualified work product. Claimant may then respond to
Petitioner’s brief in his own supplemental brief at least 5 days before the next
hearing. Both parties
are also ordered to show when notice of the July 22, 2022 ruling was given.
Lastly, Petitioner’s
request for sanctions against Claimant is denied. CCP section 2023.040 provides: “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 in the
opposition fails to do so.
Conclusion
Accordingly, Claimant’s motion for
reconsideration is CONTINUED for supplemental briefing.
Petitioner Indian
Harbor Insurance Company is ordered to file a supplemental brief at least 15
days prior to the next hearing to respond to Claimant’s contentions that California
requires licenses for private investigators who investigate injury, and only
one private investigator’s license is associated with Hub, and thus, no one
else at Hub could have conducted this surveillance footage of Hub. Alternatively,
or in addition, Petitioner may offer supplemental information as to the
origination of this surveillance footage.
Claimant Said Mohammed Said may then respond
to Petitioner’s in his own supplemental brief at least 5 days before the next
hearing.
Both parties are also ordered to
show when notice of the Court’s July 22, 2022 ruling was given.
Moving party is ordered to give
notice.