Judge: Stephen P. Pfahler, Case: MC027686, Date: 2022-10-14 Tentative Ruling

Case Number: MC027686    Hearing Date: October 14, 2022    Dept: F49

Dept. F-49

Date: 10-14-22

Case #MC027686

Trial Date: 11-7-22 c/f 6-27-22

FURTHER DOCUMENTS

MOVING PARTY:                Plaintiff, Pablo Scipione

RESPONDING PARTY:       Defendant, Kinkisharyo International, LLC

RELIEF REQUESTED

Motion to Compel Further Responses to Request for Production of Documents (set 14), numbers 156-157

SUMMARY OF ACTION

The action arises from a February 2, 2016 incident whereby Plaintiff Pablo Scipione was performing electrical work on the premises of a business owned, managed and/or operated by Defendant Kinkisharyo International, LLC, and identified as the “Train Factory.” Plaintiff alleges slipping off the wet roof of a train, and fell, thereby causing injuries. Plaintiff filed a complaint on January 25, 2018 for negligence. On March 20, 2018, Plaintiff filed a first amended complaint for negligence. On March 19, 2019, Plaintiff filed the second amended complaint for negligence, and equitable estoppel. On July 18, 2019, Plaintiff filed the third amended complaint for negligence and equitable estoppel, and negligent hiring, supervision, and retention. On January 16, 2020, Plaintiff filed the fourth amended complaint for Negligence and Equitable Estoppel, and Negligent Hiring, Supervision and Retention.

The action was first reassigned from Judge Morgan to Judge Chang on March 26, 2021. On January 28, 2022, the case was assigned from Judge Chang to Judge Kelley. Defendant filed a 170.6 against Judge Kelley, thereby leading to the transfer from Antelope Valley Courthouse to Department 49 on February 4, 2022.

RULING: Denied

Plaintiff, Pablo Scipione moves to compel further responses to Request for Production of Documents (set 14), numbers 156-157 from defendant, Kinkisharyo International, LLC. The two items seek any all photos, videos or written reports regarding surveillance of any party and/or witness to the action. Defendant objected on grounds of relevance, vague, ambiguous, overbroad, excessive, duplicative, harassing, as well as work product and/or attorney client privilege. Plaintiff presents no articulated challenges the non-privilege objections, but contends at a minimum, Defendant is required to produce a privilege log, and establish the basis of the privilege.

Defendant in opposition challenges the timing of the motion. Defendant maintains the July 29, 2022 minute order extending discovery was strictly limited to outstanding medical records, and was in no way a “wholesale request” to reopen all discovery. Defendant also reiterates the objections submitted to the responses.

Plaintiff in reply reiterates the lack of prejudice, due both the continuance of the trial date, and making the witness available for deposition. Plaintiff also maintains the expert witness exchange deadline was extended as a result of the stipulation. The deposition of Vega is currently set for November 1, 2022, by agreement of the other defendants. Plaintiff denies any attempted substitution of witnesses.

The court first addresses the propriety of the motion. The July 29, 2022 motion for extension procedural and discovery dates to the November 7, 2022 trial date, addressed medical testimony, to which Plaintiff vociferously challenged as unnecessary given the agreement of the parties to complete the deposition(s) and/or allow subpoena production. Plaintiff now brings two motions following the prior challenge for any extension.

The July 29, 2022, written minute order of the court specifically references the deposition of Dr. Kalhor and “at least 10” subpoenas to medical providers. The court granted the motion under Code of Civil Procedure section 2024.050 without limiting authority to the identified outstanding medical disputes. In ruling, the court intended to allow the parties to complete any and all discovery disputes within the extended statutory deadlines relating to the identified medical disputes.

The transcript of the hearing confirms this ruling. Plaintiff’s counsel raised concern over the broader language of the tentative ruling regarding the reopening of discovery potentially leading to substantial deposition costs for expert depositions. It was also acknowledged that all medical records were produced, thereby voiding the necessity of seeking compliance with the subpoenas. Defense agreed with the argument against a “blanket” reopening of the discovery. [Declaration of Patricia Ball, Ex. A.] Given the production of medical records, the ruling of the motion therefore constituted leave to complete the deposition of treating podiatrist, Dr. Kalhor.

Plaintiff now relies on the language regarding the concluding statements regarding the state of the case in preparation for trial, and the potential for a referee, if the disputes continued to usurp court resources. Again, given the plain introductory language regarding the scope of the order and the transcript itself, including argument from Plaintiff’s counsel regarding limiting the scope of any broad reopening, the court finds Plaintiff’s interpretation of the court order to support the motion, lacking support. The court disputes Plaintiff’s characterization of the written order as a “rejection” of the oral argument whereby Plaintiff specifically sought to limit discovery and defense counsel agreed. While it is the policy of the court to allow the parties to prosecute and defend the subject case with the best possible evidence available, the court finds the motion untimely and improper. Plaintiff cannot seek to limit the scope of court relief, then subsequently present a retroactively based interpretative challenge to suit a later objective.

Even considering the merits of the motion, the court finds a lack of support. The court finds the non-privilege objections lack merit, but the privilege objections constitute the foundation for any privilege regarding surveillance/sub rosa information.

The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 734.) The transmission of information between third parties and counsel also maintains attorney client privilege protection, if the communication is in further interest of the client. (Evid. Code, § 952.) “Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” (Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th at p. 733.) The response fails to establish that each and every response involved confidential communications with counsel.

The work product privilege applies where the sought-after documents contain Defendant’s “impressions, conclusions, opinions or legal research or theories,” the information is protected by the work product doctrine. (Code Civ. Proc., § 2018.030(c).) “An objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney's tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts”].) (Coito v. Superior Court (2012) 54 Cal.4th 480, 502.) Notes, statements, and impressions of the case are protected by the work product doctrine. A list of potential witnesses is not work product. (Coito v. Superior Court (2012) 54 Cal.4th 480, 495; Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217–218.)

While the court agrees that Defendant was obliged to produce a privilege log for any and all withheld material identified as privileged, if said material exists, the court declines to order such relief, due to the impropriety of the motion. (Code Civ. Proc., 2031.240, subd. (c).) Further, even assuming any media or reports exist, nothing in the motion establishes the right to production. Certain non-derivative material such as potential witnesses may be discoverable, but the motion lacks sufficient argument regarding how surveillance video potentially taken to impeach the Plaintiff’s claim of a disabling injury constitutes evidence outside the domain of attorney thought process and therefore not privileged. (Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166, 177–179.)

The court therefore denies the motion in its entirety. Nothing in this motion in any way renders an opinion on a potential motion in limine regarding potential sub rosa evidence. Any and all requests for sanctions are denied.

Plaintiff to give notice.

Dept.
F-49

Date:
10-14-22

Case
#MC027686

Trial Date: 11-7-22 c/f 6-27-22

SITE INSPECTION

MOVING PARTY:                Plaintiff, Pablo Scipione

RESPONDING PARTY:       Defendant, Kinkisharyo International, LLC

RELIEF
REQUESTED

Motion
to Site Inspection

SUMMARY
OF ACTION

The
action arises from a February 2, 2016 incident whereby Plaintiff Pablo Scipione
was performing electrical work on the premises of a business owned, managed
and/or operated by Defendant Kinkisharyo International, LLC, and identified as
the “Train Factory.” Plaintiff alleges slipping off the wet roof of a train,
and fell, thereby causing injuries. Plaintiff filed a complaint on January 25,
2018 for negligence. On March 20, 2018, Plaintiff filed a first amended
complaint for negligence. On March 19, 2019, Plaintiff filed the second amended
complaint for negligence, and equitable estoppel. On July 18, 2019, Plaintiff
filed the third amended complaint for negligence and equitable estoppel, and
negligent hiring, supervision, and retention. On January 16, 2020, Plaintiff
filed the fourth amended complaint for Negligence and Equitable Estoppel, and
Negligent Hiring, Supervision and Retention.

The
action was first reassigned from Judge Morgan to Judge Chang on March 26, 2021.
On January 28, 2022, the case was assigned from Judge Chang to Judge Kelley.
Defendant filed a 170.6 against Judge Kelley, thereby leading to the transfer
from Antelope Valley Courthouse to Department 49 on February 4, 2022.

RULING: Denied.

Plaintiff,
Pablo Scipione moves to compel a site inspection of the premises where the
incident occurred, including the rail car. A party may make a motion for site
inspection pursuant to Code of Civil Procedure section 2031.010. “A party may demand that any other party
allow the party making the demand, or someone acting on the
demanding party's behalf, to enter on any land or other property that is
in the possession, custody, or control of the party on whom the demand is made,
and to inspect and to measure, survey, photograph, test, or sample the land or
other property, or any designated object or operation on it.” (Code Civ. Proc., § 2031.010, subd. (d).)

Defendant
in opposition challenges the timing of the motion. Defendant maintains the July
29, 2022 minute order extending discovery was strictly limited to outstanding
medical records, and was in no way a “wholesale request” to reopen all
discovery. Defendant also reiterates the objections submitted to the responses.

 Plaintiff in reply reiterates the
interpretative argument regarding the July 29, 2022, order. Plaintiff denies
any prejudice as a result of the site inspection, and states the inspection demand
only became possible because of the “extension.”

The
court first addresses the propriety of the motion. The July 29, 2022 motion for
extension procedural and discovery dates to the November 7, 2022 trial date,
addressed medical testimony, to which Plaintiff vociferously challenged as
unnecessary given the agreement of the parties to complete the deposition(s)
and/or allow subpoena production. Plaintiff now brings two motions following
the prior challenge for any extension.

The
July 29, 2022, written minute order of the court specifically references the
deposition of Dr. Kalhor and “at least 10” subpoenas to medical providers. The
court granted the motion under Code of Civil Procedure section 2024.050 in
order to complete the identified outstanding medical discovery. In ruling, the
court intended to allow the parties to complete any and all discovery disputes
within the extended statutory deadlines relating to the identified medical
disputes.

The
transcript of the hearing confirms this ruling. Plaintiff’s counsel raised
concern over the broader language of the tentative ruling regarding the
reopening of discovery potentially leading to substantial deposition costs for
expert depositions. It was also acknowledged that all medical records were
produced, thereby voiding the necessity of seeking compliance with the
subpoenas. Defense agreed with the argument against a “blanket” reopening of
the discovery. [Declaration of Patricia Ball, Ex. A.] Given the production of
medical records, the ruling of the motion therefore constituted leave to
complete the deposition of treating podiatrist, Dr. Kalhor.

Plaintiff
now relies on the language regarding the concluding statements regarding the
state of the case in preparation for trial, and the potential for a referee, if
the disputes continued to usurp court resources. Again, given the plain
introductory language regarding the scope of the order and the transcript
itself, including argument from Plaintiff’s counsel regarding limiting the
scope of any broad reopening, the court finds Plaintiff’s interpretation of the
court order to support the motion, lacking support. While it is the policy of
the court to allow the parties to prosecute and defend the subject case with
the best possible evidence available, the court finds the motion untimely and
improper. Plaintiff cannot seek to limit the scope of court relief, then
subsequently present a retroactively based interpretative challenge to suit a
later objective.

As
for showing of diligence and denial of prejudice, the court finds the
explanation lacking in factual support. Given the accident occurred in February
2016, and Plaintiff’s representation of “timely” service on August 18, 2022 of
the demand, it’s not clear why Plaintiff only now seeks enforcement of the
demand and presents no narrative regarding prior efforts during the last four
plus years of litigation. Again, the limited discovery extension was only
granted on July 29, 2022, and this demand was still served after this date, not
before.

Even
considering the merits of the motion, the court finds a lack of support. The privacy objections lack support in
that defendants fails to establish that the light rail vehicle in and of itself
in any way constitute a privacy protected item of property, or how an
industrial work area held by a corporate entity constitutes a privacy interest.
Nevertheless, the court acknowledges the more than six year lapse in time
between the incident, and the represented, subsequent discontinuance of
production of the subject type of vehicle. Nothing in the motion establishes
that the conditions of the work area in any way resemble the conditions at the
time of the incident, thereby compelling an inspection. It also remains unclear
whether the vehicle itself still exists, and the court otherwise accepts the
represented lack of a similar vehicle, due to discontinued production. The
court therefore finds the Defendant’s representation regarding the inability to
comply with such a demand valid and/or the lack of a necessary basis for the
inspection more than six years after the incident. The court therefore finds no
basis for the proposed site inspection, even if the motion were proper.

The court therefore denies the
motion in its entirety. Nothing in this motion in any way renders an opinion on
the subject rail car or conditions on the premises at the time of the incident
in regards to a potential motion in limine. Any and all requests for sanctions
are denied.

Plaintiff to give notice.