Judge: Yolanda Orozco, Case: 19STCV33158, Date: 2023-02-23 Tentative Ruling
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Case Number: 19STCV33158 Hearing Date: February 23, 2023 Dept: 31
MOTION TO COMPEL FURTHER RESPONSE
TO SPECIAL INTERROGATORIES, SET THREE
TENTATIVE RULING
Defendant’s Motion to Compel Further Responses to Special Interrogatories Nos. 45 to 50 is GRANTED.
Plaintiff’s request for
sanctions is DENIED.
Background
In this action, several sheriff’s
deputies (“Plaintiffs”) who were formerly assigned to the East L.A. station
allege that they were pressured to quit their jobs or leave the station and
that they were otherwise harassed by other deputies who are alleged members of
a gang known as the Banditos.¿
The operative Sixth Amended Complaint alleges discrimination, harassment, retaliation, and related claims against Defendant County of Los Angeles (“County”) and alleges assault, battery, and other claims against Individual Defendants Rafael “Rene” Munoz (“Munoz”), Gregory Rodriguez (“Rodriguez”), David Silverio (“Silverio”), and Michael Hernandez (“MH”) (collectively “Individual Defendants”).¿
On January 30, 2023, Defendant County filed a Motion to Compel Plaintiff Art Hernandez to Provide Further Responses to Special Interrogatories (SROGS), Set Three.
Plaintiff filed opposing papers on February 09, 2023.
Defendant County filed a reply on February 15, 2023.
Legal Standard
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 (1) an answer
to a particular interrogatory is evasive or incomplete, (2) an exercise of the
option to produce documents under Code of Civil Procedure section 2030.230 is
unwarranted or the required specification of those documents is inadequate, or
(3) an objection to an interrogatory is without merit or too general. (Code Civ.
Proc. § 2030.300(a).) The responding party has the burden of justifying the
objections thereto. (Coy v. Superior Court (1962) 58 Cal.2d 210,
220-21.)¿
Moreover, notice
of a motion to compel further must be given 45 days of service of the response
or any supplemental response, or on or before any specific later day to which
the propounding party and responding party may have agreed in writing. (Code of
Civ. Proc., § 2030.300(c).)¿Finally, Cal. Rules of Court, rule 3.1345 requires
that all motions or responses involving further discovery contain a separate
statement with the text of each request, the response, and a statement of
factual and legal reasons for compelling further responses. (Cal. Rules of
Court, Rule 3.1345, subd. (a)(3)).¿¿
Discussion
Defendant County of Los Angeles seeks an Order compelling Plaintiff Art Hernandez to Provide Further Responses to Special Interrogatories (SROGS) Nos. 45 to 50. Defendant does not seek sanctions.
On December 05, 2022, the Court granted Defendant’s motion to compel Plaintiff Hernandez to answer deposition questions regarding criminal activity that he allegedly witnessed. (See Tokoro Decl. ¶ 2, Ex. A.) During the December 5, 2022 hearing, Plaintiff’s counsel, Mr. Vincent Miller alleged he had received a phone call a few days prior where an alleged Bandito gang member stated they were concerned about Plaintiff’s testimony. (Id. ¶ 3.) A transcript by a Court Reporter of the December 5, 2023 hearing reflects that Plaintiff’s counsel made the following representation to the Court:
“I GOT CALLED BY ONE OF THE LEADERS OF THE BANDIDOS GANG ON THURSDAY ABOUT ART. CONCERNED ABOUT HIS TESTIMONY.”
(Id. Ex. A.)
Defense counsel has sought information regarding the phone call and name of the alleged caller, which Plaintiff’s counsel failed to provide. (Tokoro Decl. Ex. B.) The County asserts that it is obligated to investigate the incident and any allegations of witness intimidation. For this reason, on December 9, 2022, it served SROGS on Plaintiff Hernandez via Plaintiff’s counsel’s email. (Id. ¶ 4, Ex. C, D.) The SROGS seek the following information:
SROG 45
“IDENTIFY the PERSON who
contacted YOUR attorney, Vincent Miller, on or around Thursday, December 1,
2022, regarding YOUR deposition testimony, as alleged by Mr. Miller during the
DECEMBER 5 HEARING.”
SROG 46
“State the date and time of the phone
call made to YOUR attorney, Vincent Miller, on or around Thursday, December 1,
2022, regarding YOUR deposition testimony, as alleged by Mr. Miller during the
DECEMBER 5 HEARING.”
SROG 47
“Provide the phone number from which
YOUR attorney, Vincent Miller, received the phone call on or around Thursday,
December 1, 2022, regarding YOUR deposition testimony, as alleged by Mr. Miller
during the DECEMBER 5 HEARING.”
SROG 48
“Provide the phone number on which YOUR
attorney, Vincent Miller, received the phone call on or around Thursday,
December 1, 2022, regarding YOUR deposition testimony, as alleged by Mr. Miller
during the DECEMBER 5 HEARING.”
SROG 49
“DESCRIBE in detail the substance of
the phone conversation between YOUR attorney, Vincent Miller, and the PERSON
who called him on or around Thursday, December 1, 2022, regarding YOUR
deposition testimony, as alleged by Mr. Miller during the DECEMBER 5 HEARING.”
SRONG 50
“State each and every
fact that forms the basis for Mr. Miller’s assertion during the DECEMBER 5
HEARING that the PERSON identified in response to Interrogatory No. 45 above
was “one of the leaders of the Bandidos gang.”
Plaintiff Hernandez refuses to respond to the SROGS on the
basis that he does not have the requisite information and asking his attorney
for the information violates attorney work product privilege. (See Coito v. Superior Court (2012)
54 Cal.4th 480, 496 [finding that “witness
statements procured by an attorney are entitled as a matter of law to at least
qualified work product protection under section 2018.030, subdivision (b).”].)
Defendant asserts that Plaintiff has waived any objections, including those
based on privilege, and that Plaintiff’s objections are without merit.
Timeliness of Plaintiff’s Responses
Plaintiff asserts that SROGS Nos. 45 to 50 were not properly served on December 9, 2022, because Plaintiff’s counsel was not carbon copied (CC) to his gmail account. (Miller Decl. ¶ 7.) Plaintiff’s counsel asserts that only his brother was CC’d in the email, who was unable to respond due to suffering a heart attack and undergoing triple bypass surgery and who has not returned to work. (Miller Decl. ¶ 11, Ex. 4.) Accordingly, Plaintiff did not get the SROGS until January 11, 2023. (Miller Decl. ¶ 9.)
Defendant asserts that service of the SROGs was valid because it was served on Plaintiff’s counsel’s email address of record and that the emails are the subject to the parties’ electronic service agreement. (Tokoro Decl. ¶ 4.)
Plaintiffs’ counsel provides evidence as of February 2021, that Plaintiff’s counsel informed Defendant’s former counsel that his gmail account was to be added to the distribution list as Defendant’s correspondence had been going to junk mail and he was not receiving correspondence. (Miller Decl. Ex. 1.)
The Court may properly consider that Mr. Miller informing Defendant to add his gmail address to the distribution list as an amendment to the parties’ electronic service agreement such that service is not proper unless notice is also emailed to Mr. Miller’s gmail address. Defendant fails to provide any evidence to the contrary or that Plaintiff consented to accept electronic service served only at his work address rather than also his gmail address.
Accordingly, the Court finds that service of the SROGS was not proper until January 11, 2023, and that Plaintiff timely raised objections, including objections based on attorney and work product privilege.
Plaintiff’s Objections
“On a motion to compel,
the responding party has the burden of establishing a valid objection,
including any claim of privilege. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220.)
The Court finds that Plaintiff’s objections based on lack
of relevance is without merit. The fact that Plaintiff asserts that evidence of
the phone call will not be used at trial does not by itself make inquiry into
the nature of the phone call irrelevant. Plaintiff fails to cite any legal
authority holding otherwise. The nature of the phone call and the caller’s
identity are relevant to Plaintiff’s allegations that he and others suffered
witness intimidation and have been threatened and harassed by Banditos gang
members (See Miller Decl. ¶ 13.) The information is also likely to lead to other
discoverable or admissible evidence.
Secondly, witness statements obtained by an attorney are subject to a qualified privilege. (See Coito, supra, 54 Cal.4th at 496.) Plaintiff Hernandez is not required to respond to the interrogatory under the work product privilege if he “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.” (Id. at 502.)
Plaintiff has not presented any facts to make a preliminary or foundational showing that answering SROGS 45 to 50 would reveal his attorney’s tactics, impressions, or evaluation of the case or would result in Defense counsel taking undue advantage of the attorney’s industry or efforts. Therefore, Plaintiff has failed to show that the information sought is protected by the work product doctrine.
Regarding objections based on attorney-client privilege: “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733; see also Evid. Code, § 954.)
Plaintiff asserts that he does not have the sought-after information and cannot answer the interrogatories. Therefore, Plaintiff would have to ask his counsel for the information and if he does so and discloses the information, it would be a violation of the attorney-client privilege.
Defendant asserts that because the information concerns information from and about a third party the communication is not confidential. Under Evidence Code section 952 a
“‘confidential communication between client and lawyer’ means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”
(Evid. Code, § 952.)
Accordingly, any claims of attorney-client privilege are waived when the communications involve third persons who have no interest in the communication or who possess interest adverse to the Plaintiff’s. (See (Insurance Co. of North America v. Superior Court (1980) 108 Cal.App.3d 758, 765.) Furthermore, “the client must intend that communications be confidential.” (Id. at 765.)
Plaintiff has failed to present any facts to show that any inquiries by Plaintiff Hernandez regarding the phone call Plaintiff’s counsel received would be expected to remain confidential and would be protected by the attorney-client privilege. “When the party claiming the privilege shows the dominant purpose of the relationship between the parties to the communication was one of attorney-client, the communication is protected by the privilege.” (League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 989 [internal citations and quotations omitted].) Plaintiff here fails to show that the dominant purpose of communication regarding the phone call would be one of attorney-client.
“The attorney-client privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts upon which the communications are based and does not extend to independent witnesses or their discovery.” (Aerojet-General Corp. v. Transport Indemnity Insurance (1993) 18 Cal.App.4th 996, 1004 [internal citations and quotations omitted].) “Even if the names and addresses of the witnesses were known only to the attorneys, they would have to be disclosed on a proper interrogatory addressed to the party.” (Smith v. Superior Court In and For San Joaquin County (1961) 189 Cal.App.2d 6, 12.)
Information regarding the phone call Plaintiff’s counsel received, including the name, date, and time of the phone call, the phone number, and the substance of the call, including the facts that led Plaintiff’s counsel to assert that the person who made the phone call is a leader of the Banditos gang, is information that is discoverable and not subject to any privilege.
Accordingly, Plaintiff’s Motion to Compel Further Responses to SROGS Nos. 45 to 50 is GRANTED.
Plaintiff’s request for sanctions is denied.
Conclusion
Defendant’s Motion to Compel Further Responses to Special Interrogatories Nos. 45 to 50 is GRANTED.
Plaintiff’s request for sanctions is DENIED.
Moving party to give notice.