This case was last updated from Los Angeles County Superior Courts on 09/21/2021 at 00:08:33 (UTC).

DIANA ESTEVEZ, ET AL VS GREGORY KADLEC, ET AL

Case Summary

On 07/12/2016 DIANA ESTEVEZ filed a Personal Injury - Motor Vehicle lawsuit against GREGORY KADLEC. This case was filed in Los Angeles County Superior Courts, Michael Antonovich Antelope Valley Courthouse located in Los Angeles, California. The Judges overseeing this case are BRIAN C. YEP, RANDOLPH A. ROGERS, DAVID J. COWAN, STEPHEN T. MORGAN, WENDY CHANG and STEPHEN MORGAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6448

  • Filing Date:

    07/12/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

BRIAN C. YEP

RANDOLPH A. ROGERS

DAVID J. COWAN

STEPHEN T. MORGAN

WENDY CHANG

STEPHEN MORGAN

 

Party Details

Plaintiff

GOMEZ MAXWELL

Cross Defendants, Defendants and Cross Plaintiffs

SAAB AB

GENERAL MOTORS CORPORATION

TAKATA CORPORATION

KADLEC GREGORY

JT3 LLC DOE 6

NATIONAL ELECTRIC VEHICLE SWEDEN

KADLEC JOLLE

KADLEC JULLE

CITY OF LANCASTER

COUNTY OF LOS ANGELES

Not Classified By Court

HAYASHIDA SHERYL S. ESQ.

11 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

ECHEVERRIA RICARDO J.

Cross Defendant, Defendant and Cross Plaintiff Attorneys

BIGLEY PAUL ANDREW

BIGLEY PAUL A.

DAVILA NICHOLAS WILLIAM

RAMSEY CHRISTOPHER PAUL ESQ.

MCINTYRE ANNE KATHERINE ESQ.

GORDON MICHAEL JOHN

 

Court Documents

Witness List

8/4/2021: Witness List

Opposition - OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE #1

7/30/2021: Opposition - OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE #1

Motion in Limine - MOTION IN LIMINE NO. 25

7/15/2021: Motion in Limine - MOTION IN LIMINE NO. 25

Motion in Limine - MOTION IN LIMINE NO. 28

7/15/2021: Motion in Limine - MOTION IN LIMINE NO. 28

Stipulation and Order - STIPULATION AND ORDER TO CONTINUE TRIAL AND CERTAIN TRIAL-RELATED DATES: TOLLING AGREEMENT REGARDING OUTSTANDING DISCOVERY ISSUES

4/5/2021: Stipulation and Order - STIPULATION AND ORDER TO CONTINUE TRIAL AND CERTAIN TRIAL-RELATED DATES: TOLLING AGREEMENT REGARDING OUTSTANDING DISCOVERY ISSUES

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW RE: SCHEDULING) OF 01/06/2021

1/6/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW RE: SCHEDULING) OF 01/06/2021

Order - ORDER GRANTING APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT BY DEFENDANT JT3 LLC AND CROSS-DEFENDANT CITY OF LANCASTER

6/19/2020: Order - ORDER GRANTING APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT BY DEFENDANT JT3 LLC AND CROSS-DEFENDANT CITY OF LANCASTER

Request for Dismissal

7/23/2020: Request for Dismissal

Notice of Ruling

8/7/2020: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL T-MOBILE TO PRODUCE PLAINTIFF DIA...)

8/11/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL T-MOBILE TO PRODUCE PLAINTIFF DIA...)

Notice - NOTICE OF CONTINUANCE OF MOTION FOR SUMMARY JUDGMENT HEARING - 3.19.20

2/3/2020: Notice - NOTICE OF CONTINUANCE OF MOTION FOR SUMMARY JUDGMENT HEARING - 3.19.20

Declaration - DECLARATION DECLARATION OF LUPE FLORES IN SUPPORT OF EX PARTE APPLICATION TO APPOINT SHERYL S. HAYASHIDA, ESQ. AS GUARDIAN AD LITEM FOR MINORS ETHAN GOMEZ AND LEON MICHAEL GOMEZ

10/7/2019: Declaration - DECLARATION DECLARATION OF LUPE FLORES IN SUPPORT OF EX PARTE APPLICATION TO APPOINT SHERYL S. HAYASHIDA, ESQ. AS GUARDIAN AD LITEM FOR MINORS ETHAN GOMEZ AND LEON MICHAEL GOMEZ

Summons on Cross Complaint -

7/3/2017: Summons on Cross Complaint -

DECLARATION - OF SAMUEL BRUCHEY

4/11/2018: DECLARATION - OF SAMUEL BRUCHEY

Minute Order -

6/26/2018: Minute Order -

STIPULATION TO ALLOW FILING OF AMENDED ANSWER TO COMPLAINT; PROPOSED AMENDED ANSWER TO COMPLAINT; ORDER THEREON

6/27/2018: STIPULATION TO ALLOW FILING OF AMENDED ANSWER TO COMPLAINT; PROPOSED AMENDED ANSWER TO COMPLAINT; ORDER THEREON

Motion for Order - Motion for Order Compelling Responses by Plaintiff, DIana Estevez to Request for Production, Set Two and Order for Sanctions

10/9/2018: Motion for Order - Motion for Order Compelling Responses by Plaintiff, DIana Estevez to Request for Production, Set Two and Order for Sanctions

Notice of Ruling - Notice of Ruling on Trial Setting Conference

11/7/2018: Notice of Ruling - Notice of Ruling on Trial Setting Conference

407 More Documents Available

 

Docket Entries

  • 10/08/2021
  • Hearing10/08/2021 at 08:30 AM in Department A14 at 42011 4th Street West, Lancaster, CA 93534; Final Status Conference

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  • 10/08/2021
  • Hearing10/08/2021 at 08:30 AM in Department A14 at 42011 4th Street West, Lancaster, CA 93534; Hearing on Motion to Sever

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  • 10/08/2021
  • Hearing10/08/2021 at 08:30 AM in Department A14 at 42011 4th Street West, Lancaster, CA 93534; Jury Trial

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  • 09/29/2021
  • Hearing09/29/2021 at 08:30 AM in Department 1 at 111 North Hill Street, Los Angeles, CA 90012; Non-Appearance Case Review

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  • 09/13/2021
  • Docketat 3:00 PM in Department A14, Stephen Morgan, Presiding; Non-Appearance Case Review

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  • 09/13/2021
  • DocketMinute Order ( (Non-Appearance Case Review Re: Scheduling)); Filed by Clerk

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  • 09/13/2021
  • DocketCertificate of Mailing for ((Non-Appearance Case Review Re: Scheduling) of 09/13/2021); Filed by Clerk

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  • 09/09/2021
  • DocketStatement of the Case ((First Amended Joint)); Filed by Maxwell Gomez (Plaintiff)

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  • 09/09/2021
  • DocketTrial Brief; Filed by Diana Estevez (Plaintiff); Gregory Kadlec (Defendant)

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  • 09/09/2021
  • DocketWitness List ((Second Amended Joint)); Filed by Maxwell Gomez (Plaintiff)

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630 More Docket Entries
  • 07/25/2016
  • DocketSUMMONS

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  • 07/25/2016
  • DocketSummons; Filed by Diana Estevez (Plaintiff); Maxwell Gomez (Plaintiff); Jorge Estevez (Non-Party)

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  • 07/25/2016
  • DocketSummons; Filed by Clerk

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  • 07/25/2016
  • DocketApplication ; Filed by Diana Estevez (Plaintiff); Jorge Estevez (Non-Party)

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  • 07/12/2016
  • DocketNotice of Case Assignment; Filed by Clerk

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  • 07/12/2016
  • DocketComplaint; Filed by Maxwell Gomez (Plaintiff)

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  • 07/12/2016
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 07/12/2016
  • DocketCIVIL CASE COVER SHEET

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  • 07/12/2016
  • DocketNOTICE OF CASE ASSIGNMENT

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  • 02/25/2016
  • DocketFIRST AMENDED GENERAL ORDER RE PI COURT PROCEDURES

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Tentative Rulings

Case Number: MC026448    Hearing Date: April 1, 2021    Dept: A14

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTH DISTRICT

DIANA ESTEVEZ, by her Guardian ad Litem, JORGE ESTEVEZ, and MAXWELL GOMEZ;

Plaintiffs,

v.

GREGORY KADLEC, JOLLE KADLEC, TAKATA CORPORATION, SAAB AB, NATIONAL ELECTRIC VEHICLE SWEDEN, GENERAL MOTORS CORPORATION, and DOES 1 through 100, inclusive,

Defendants.

Case Number MC026448

[TENTATIVE]

STATEMENT OF DECISION

Date of Hearing:

April 01, 2021

Dept. A-14

Judge Stephen T. Morgan

Background

This case arises from an automobile collision. On June 01, 2015, at about 4:20 p.m. Plaintiff Diana Estevez (“Plaintiff”) was driving a 2004 Saab eastbound on Columbia Way (Avenue M) in Lancaster when Defendant Gregory Kadlec (“Kadlec”), driving a 2003 Ford Explorer, allegedly veered from the westbound lane and struck Plaintiff’s vehicle head-on. Kadlec was travelling at approximately 50 mph at the time of the collision and Plaintiff’s airbag did not deploy. Plaintiff suffered massive head and facial injuries and has been in a coma ever since.

On July 12, 2016, Plaintiff, by and through her Guardian ad Litem Jorge Estevez, and Plaintiff Maxwell Gomez (“Gomez” and collectively, “Plaintiffs”) filed their Complaint, alleging four (4) causes of action for (1) Motor Vehicle Negligence; (2) General Negligence; (3) Products Liability; and (4) Loss of Consortium. In the Complaint, Plaintiffs allege that Kadlec and Defendant Julie Kadlec’s (collectively “the Kadlecs”), a listed owner of the 2003 Ford Explorer, negligence caused the collision. Plaintiffs also allege that Defendants Takada Corporation, Saab AB, National Electric Vehicle Sweden, and General Motors Corporations negligently designed and installed an airbag in Plaintiffs’ vehicle.

On October 18, 2016, the Kadlecs filed their Answer and Cross-Complaint against Defendants Takada Corporation, Saab AB, National Electric Vehicle Sweden, and General Motors Corporations. On April 07, 2017, the Kadlecs filed a Governmental Cross-Complaint to indemnify the County of Los Angeles (“COLA”) and City of Lancaster (“Lancaster”) based on the allegedly dangerous condition of the roadway. Thereafter, on July 03, 2017, Lancaster filed a Cross-Complaint for indemnity, apportionment of fault, and declaratory relief as to the Kadlecs, and Defendants, Cross-Defendants Takada Corporation, Saab AB, National Electric Vehicle Sweden, General Motors Corporations, and COLA.

On May 16, 2018, Plaintiffs amended the Complaint, to substitute fictitiously named Doe 6 for Kadlec’s employer, Defendant JT3, LLC (“JT3”). Plaintiffs asserted their First Cause of Action for Motor Vehicle Negligence and Fourth Cause of Action for Loss of Consortium against JT3. On July 09, 2018, JT3 filed its Answer and Cross-Complaint for indemnity against Kadlec.

On July 20, 2018, Kadlec filed an Answer to JT3’s Cross-Complaint and similarly filed a Cross-Complaint for indemnity against JT3.

After protracted settlement negotiations, Plaintiffs and their two minor children (who are not parties to this case but parties to their own separate probate cases (case number 20AVPB00243 and 20AVPB00244) entered into a partial settlement agreement that resulted in the dismissal of Gomez, JT3, and Lancaster.

On February 11, 2021, Plaintiff filed a Request for Dismissal as to JT3, which was entered on the same date. On February 11, 2021, the Kadlecs filed the Requested for Dismissal of their Cross Complaint as to Lancaster, only, which was entered on the same date. Then, on February 16, 2021, Gomez filed a Request for Dismissal as to himself and the Fourth Case of Action for Loss of Consortium from the Complaint, which was entered on the same date. On February 18, 2021, Lancaster filed a Request for Dismissal as to the entirety of Lancaster’s Cross-Complaint, which was entered on the same date. On February 19, 2021, Gregory Kadlec filed a Request for Dismissal as to JT3 from the Cross-Complaint, which was entered on the same date.

On March 08, 2021, the Kadlecs filed the instant Motion to File an Amended Answer. Plaintiff filed Opposition on March 18, 2021. The Kadlecs replied on March 23, 2021.

Analysis

Motion for Leave to File an Amended AnswerThe applicable statute, Code Civ. Proc. § 473, provides that the trial court may, “in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading . . . .” (Code Civ. Proc. § 473 subd. (a)(1).) The Supreme Court has stated, “It is a basic rule of pleading in this state that amendments shall be liberally allowed so that all issues material to the just and complete disposition of a cause may be expeditiously litigated, but ‘the question whether the filing of an amended pleading should be allowed at the time of trial is ordinarily committed to the sound discretion of the trial court.’” (Vogel v. Thrifty Drug Co. (1954) 43 Cal.2d 184, 188.) The trial court may grant a motion to amend as late as the time of trial and, if necessary, postpone the trial. (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965.) Moreover, the policy of liberal allowance of amendments applies with particular force to answers, “for a defendant denied leave to amend is permanently deprived of a defense[.]” (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159; see Permalab-Metalab Equipment Corp. v. Maryland Cas. Co. (1972) 25 Cal.App.3d 465, 472.)

While the general policy is liberality in allowing amendments, it is proper and within the discretion of the trial court to deny leave to file a proposed amendment unless the proponent of the amendment is able to show that the amendment will not be prejudicial to other parties in the action and that the delay in bringing the amendment was excusable. (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175.) While a trial court may also deny a proposed amendment on the grounds that it fails to state a cause of action, it is still proper for a trial court to deny an amendment if there is an unexplained delay in moving to amend, even if the complaint states a cause of action. (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.)

In deciding whether to grant a delayed motion to amend, the trial court must consider a number of factors, including (1) whether there was a lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487-488.)

Application – Here, the Kadlecs move for leave to amend the answer to include a fourteenth affirmative defense, asserting the “sudden emergency” doctrine. As presented in the proposed Second Amended Answer attached to the Motion at Exhibit A, the amendment reads,

Fourteenth Affirmative Defense: These answering defendants allege that they were not negligent because they acted with reasonable care in a sudden emergency situation in light of the immediate hazard existing at the time of this accident.

(Motion, Exh. A.)

Next, the Court notes that while the Kadlecs move for leave to amend based on Code Civ. Proc. § 473 subd. (a)(1)’s provision to “correct a mistake” (Motion, at p. 3:23) they fail to present any facts supporting a finding that the omission of the proposed Fourteenth Defense under the “sudden emergency” doctrine was a “mistake.” Notwithstanding this, the Court reviews the motion under its discretion to permit an amendment “upon such terms as may be just” under section 473 subd. (a)(1).

To that extent, the Kadlecs opine that they did not include this defense at an earlier time during the near five-year pendency of this lawsuit due to “recent developments in the case and proposed expert testimony” that uncovered the applicability of the defense. (Motion, at p. 3:10–11.) That is, the viability of the defense was recently confirmed. (Motion, at p. 14–15.) However, as conceded in the Moving Papers, the basis for the defense arose from Defendant Gregory Kadlec’s own testimony surrounding the circumstances of the collision. Thus, it appears that while the facts upon which the defense relies has been known to the Kadlecs since the commencement of the action, it was only recently that expert testimony was taken “confirming” the applicability of the defense. Notably, and as pointed out in the Opposition, the Kadlecs offer no facts or argument explaining the substantial delay in obtaining the expert testimony or why it was necessary to assert the defense if the factual basis was known by Defendant Gregory Kadlec himself. Thus, the Court finds that the Kadlecs exercised a lack of diligence in offering the amendment.

Next, the Kadlecs contend that the delay does not prejudice Plaintiff. While the Court notes that the jury trial is currently scheduled for April 16, 2021, it is well known to this Court that the trial will be continued on stipulation of the parties to mid to late July 2021. Given the anticipated stipulation, it does not appear––and Plaintiff does not argue––that the amendment would further delay trial. Next, the Kadlecs opine that the amendment “should come as no surprise” and that Plaintiff would not incur increased burden or costs in discovery. This contention is unsupported. In fact, as presented in the Opposition, Plaintiff argues that she will suffer prejudice because she has conducted years of discovery without considering that she would have to disprove the elements of the sudden emergency doctrine. And, assuming the trial is rescheduled to July, this grants Plaintiff three months to conduct additional discovery, including expert discovery, on the sudden emergency affirmative defense. However, Plaintiff does not assert in the Opposition that additional discovery is necessary to defend against the inclusion of the sudden emergency defense, adding a prejudicial burden on Plaintiff and the Court will not divine such a conclusion. Rather, Plaintiff essentially states that she would have propounded different discovery requests on the Kadlecs to investigate the applicability of the defense had it been asserted earlier.

Based on the foregoing, while the Court finds that the Kadlecs exercised a lack of diligence in offering the instant amendment, the Court also finds that the amendment will not result in prejudice to Plaintiff.

Conclusion

Accordingly, the Court GRANTS the Motion for Leave to File the Second Amended Answer.

Case Number: MC026448    Hearing Date: March 25, 2021    Dept: A14

CASE NAME: Diana Estevez, et al. vs. Gregory Kadlec, et al.

HEARING DATE March 25, 2021

SUBJECT: Motion to Quash Deposition Subpoenas for Production of Documents and Personal  Appearance 

The Motion to Quash is DENIED IN PART; the Court orders all entities to propound responsive, redacted documents, with a privilege log regarding any withheld documents and/or redacted information on or before April 30, 2021; and further order all objections preserved for renewal during the course of oral depositions to be taken pursuant to the issued subpoenas.

Background

This case arises from an automobile collision. On June 01, 2015, at about 4:20 p.m. Plaintiff Diana Estevez (“Plaintiff”) was driving a 2004 Saab eastbound on Columbia Way (Avenue M) in Lancaster when Defendant Gregory Kadlec (“Kadlec”), driving a 2003 Ford Explorer, allegedly veered from the westbound lane and struck Plaintiff’s vehicle head-on. Kadlec was travelling at approximately 50 mph at the time of the collision and Plaintiff’s airbag did not deploy. Plaintiff suffered massive head and facial injuries and has been in a coma ever since.

On July 12, 2016, Plaintiff, by and through her Guardian ad Litem Jorge Estevez, and Plaintiff Maxwell Gomez (“Gomez” and collectively, “Plaintiffs”) filed their Complaint, alleging four (4) causes of action for (1) Motor Vehicle Negligence; (2) General Negligence; (3) Products Liability; and (4) Loss of Consortium. In the Complaint, Plaintiffs allege that Kadlec and Defendant Julie Kadlec’s (collectively “the Kadlecs”), a listed owner of the 2003 Ford Explorer, negligence caused the collision. Plaintiffs also allege that Defendants Takada Corporation, Saab AB, National Electric Vehicle Sweden, and General Motors Corporations negligently designed and installed an airbag in Plaintiffs’ vehicle.

On October 18, 2016, the Kadlecs filed their Answer and Cross-Complaint against Defendants Takada Corporation, Saab AB, National Electric Vehicle Sweden, and General Motors Corporations. On April 07, 2017, the Kadlecs filed a Governmental Cross-Complaint to indemnify the County of Los Angeles (“COLA”) and City of Lancaster (“Lancaster”) based on the allegedly dangerous condition of the roadway. Thereafter, on July 03, 2017, Lancaster filed a Cross-Complaint for indemnity, apportionment of fault, and declaratory relief as to the Kadlecs, and Defendants, Cross-Defendants Takada Corporation, Saab AB, National Electric Vehicle Sweden, General Motors Corporations, and COLA.

On May 16, 2018, Plaintiffs amended the Complaint, to substitute fictitiously named Doe 6 for Kadlec’s employer, Defendant JT3, LLC (“JT3”). Plaintiffs asserted their First Cause of Action for Motor Vehicle Negligence and Fourth Cause of Action for Loss of Consortium against JT3. On July 09, 2018, JT3 filed its Answer and Cross-Complaint for indemnity against Kadlec.

On July 20, 2018, Kadlec filed an Answer to JT3’s Cross-Complaint and similarly filed a Cross-Complaint for indemnity against JT3. A contentious discovery process ensued.

After protracted settlement negotiations, Plaintiffs and their two minor children (who are not parties to this case but parties to their own separate probate cases (case number 20AVPB00243 and 20AVPB00244) entered into a partial settlement agreement that resulted in the dismissal of Gomez, JT3, and Lancaster.

On February 11, 2021, Plaintiff filed a Request for Dismissal as to JT3, which was entered on the same date. On February 11, 2021, the Kadlecs filed the Requested for Dismissal of their Cross Complaint as to Lancaster, only, which was entered on the same date. Then, on February 16, 2021, Gomez filed a Request for Dismissal as to himself and the Fourth Case of Action for Loss of Consortium from the Complaint, which was entered on the same date. On February 18, 2021, Lancaster filed a Request for Dismissal as to the entirety of Lancaster’s Cross-Complaint, which was entered on the same date. On February 19, 2021, Gregory Kadlec filed a Request for Dismissal as to JT3 from the Cross-Complaint, which was entered on the same date.

On March 01, 2021, Plaintiff filed the instant Motion to Quash. The Kadlecs filed Opposition on March 10, 2021.

Analysis

Motion to Quash Deposition Subpoena “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1(a).) The distinction in treatment between parties and nonparties reflects the notion that nonparties, who are less likely to have counsel, be familiar with the issues or be able to timely react before responses are due, should be somewhat protected from the burdensome demands of litigation. (Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th1282, 1290.) In addition, Code Civ. Proc., § 2017.020(a) provides for judicially imposed limits on discovery; “[t]he 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.”

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Timeliness – As an initial matter, the Kadlecs oppose this motion on the basis that it was untimely filed and should be denied on this basis. To support this contention, the Kadlecs cite to Code Civ. Proc. § 1985.3 subd. (g), which provides

Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production. The failure to provide notice to the deposition officer shall not invalidate the motion to quash or modify the subpoena duces tecum but may be raised by the deposition officer as an affirmative defense in any action for liability for improper release of records.

The Kadlecs misconstrue Code Civ. Proc., § 1985.3 subd. (g) in arguing that Plaintiff was required to file this motion five days prior to the date of production and that such failure results in a mandatory dismissal of the motion for untimeliness. Rather, the Court finds that, as stated plainly in the text of section 1985.3 subd. (g) that the five-day notice presents an affirmative defense to the deposition officer in determining liability for the release of records and has no impact on the time to bring a motion to quash. Accordingly, the Court rejects the Kadlecs’ untimeliness argument and reviews the motion substantively, below.

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The following facts are pertinent to the instant motion. In July 2020, the Court granted an unopposed Motion for Good Faith Settlement as to JT3 and Lancaster wherein Plaintiffs and their two minor children (who are not parties to this case but parties to their own separate probate cases (case number 20AVPB00243 and 20AVPB00244) entered into a partial settlement agreement that resulted in the dismissal of Gomez, JT3, and Lancaster. Next, in January 2021, the Court approved three minor’s compromise petitions filed on behalf of Plaintiff and her two children. The compromise petitions required the settling defendants and/or their insurance companies to purchase annuities, which will pay into trusts created on behalf of Plaintiff and her two children. (Minute Order, November 06, 2020.) The trusts are to be administered by a non-profit organization, CPT Institute, which will serve as trustee. Further, a Medicare set aside was created and funded out of the settlement proceeds for Plaintiff to preserve her eligibility for future Medicare benefits.

Following the partial settlement, on January 28, 2021, the Kadlecs propounded 83 document subpoenas and 8 deposition subpoenas to Plaintiff’s attorneys, guardians ad litem, family members, and entities and individuals involved in the partial settlement process. Plaintiff objects to the subpoenas on the basis that they seek documents and/or testimony that are not reasonably calculated to lead to the discovery of admissible evidence and are “premature” under Code Civ. Proc. § 2034.260; and are violative of the attorney client privilege, attorney work product privilege, mediation privilege, collateral source doctrine, and are overboard. The Court reviews each objection, in turn.

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Permissible Scope of Discovery (Relevance) – 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 Civ. Proc., § 2017.010.) Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. (Id.) Courts have given the words “subject matter” a broad definition that is not limited to only admissible evidence. (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 711.) Accordingly, information is relevant for discovery purposes if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Id. at pp. 711–712.) Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) These rules are applied liberally in favor of discovery and “fishing expeditions” are permissible in some cases. (Id.)

The subpoenas at issue here fall into three groupings. First, the subpoenas served upon Shernoff Bidart Echeverria LLP (Plaintiff’s counsel), Michael Rand, Esq. (Plaintiff and Gomez’ counsel), Mendez & Sanchez, APLC (Plaintiff and Gomez’ counsel), Sheryl Hayashida (Guardian ad Litem for Diana and her minor children), CPT Institute (administrator of the purchase annuities placed in trust pursuant to the partial settlement and Motion for Good Faith Determination), MedVal, LLC (entity that created the Medicare Set Aside for Plaintiff), Jorge Estevez and Gloria Estevez (Plaintiff’s parents and the adoptive parents of her children), London Fischer (Counsel for defendant JT3, LLC), Hartford Casualty Insurance Company (JT3, LLC’s insurer) and Twin City Fire Insurance Company (City of Lancaster’s insurer) requested the following documents:

  1. All documents relating to the guardianship/conservatorship of Plaintiff;

  2. All documents relating to any proposed or finalized settlement by or on behalf of any person, entity or party relating to injury sustained by Plaintiff in the accident that occurred on June 1, 2015 and is the subject matter of this lawsuit;

  3. All documents relating to retention of legal representation of Plaintiff and/or the Guardianship/Conservatorship for purposes of settlement or litigation arising from Plaintiff’s injuries allegedly sustained in the accident that occurred on June 1, 2015 and is the subject matter of this lawsuit;

  4. All documents relating to the Plaintiff’s marriage and marital status;

  5. All documents relating to the legal proceedings arising from the accident that occurred on June 1, 2015 and/or Plaintiff’s injuries that were allegedly sustained in the accident on June 1, 2015, including all nonprivileged communications among or between counsel;

  6. All documents relating to ethical and medical protocols regarding maintenance and termination of life support;

  7. All documents relating to Medicaid and Medicare set asides and cost of future medical care and treatment for Plaintiff as it relates to the injuries allegedly sustained in the accident that occurred on June 1, 2015 and is the subject matter of this lawsuit;

  8. All communications by, on behalf of, or between settled parties in the action brought on behalf of Plaintiff;

  9. All documents relating to interfamily communications regarding maintenance and/or termination of life support of Plaintiff as a result of the injuries allegedly sustained in the accident on June 1, 2015;

  10. All documents relating to the interfamily communications regarding use of settlement proceeds from settlement of claims for Plaintiff’s injuries that were allegedly sustained in the accident on June 1, 2015 and is the subject matter of this lawsuit; and,

  11. All documents relating to communications regarding use of settlement proceeds from settlement of claims for Plaintiff’s injuries that were allegedly sustained in the accident on June 1, 2015 and is the subject matter of this lawsuit.

(Plaintiff’s Index of Exhibits (“IOE”), Nos. 1–83.)

Second, the deposition subpoenas for testimony of the Persons Most Knowledgeable of CPT Institute, MedVal, LLC, Medivest Benefit Advisors, Inc. (administrator of Plaintiff’s Medicare Set Aside), and Centers for Medicare and Medicaid Services (authorizing entities of Plaintiff’s Medicare Set Aside). The subpoenas for the persons most knowledgeable contained the following topics:

  1. All communications, oral or written, between attorneys and staff at Shernoff Bidart Echeverria, LLP, regarding any services to be performed related to Plaintiff, including but not limited to, the matter of Estevez v. Kadlec;

  2. All communications between Medivest Benefit Advisors, Inc./MedVal and CPT and any source regarding any determination or conclusion regarding or related to the life expectancy of Plaintiff;

  3. All methods of analysis used to determine or conclude the life expectancy of Plaintiff;

  4. All communications between Medivest Benefit Advisors, Inc./MedVal and CPT and any source regarding the amount, in dollars, of any Medicare Set Aside related to Plaintiff;

  5. All communications, oral or written, between Medivest Benefit Advisors, Inc./MedVal and CPT and any source regarding the Medicare Set Aside related to Plaintiff;

  6. All communications between Medivest Benefit Advisors, Inc./MedVal and CPT and any source regarding the amounts and time of all payments to be made to any provider related to the future care of Plaintiff;

  7. All conclusions and determinations of the amounts to be paid to any provider of future care of Plaintiff;

  8. All conclusions or determinations of the amount to be paid to any person or entity other than providers of future care to Plaintiff; and,

  9. All conclusions and determinations of the amounts to be paid in the event of the death of Plaintiff.

    (Plaintiff’s IOE, Nos. 87, 88, 95, 99, 101.)

Third, and finally, the subpoenas to the individual employees William Lindahl, Yuliana Burkhardt, Michelle Minocci of CPT Institute; Haj Aoki of MedVal, LLC; and persons most knowledgeable, above, contain the following requests for documents:

  1. All documents (including electronically stored information) related to Plaintiff;

  2. All documents (including electronically stored information) memorializing, identifying or stating the considerations and conditions required for acceptance of the terms of the formation of a Medicare Set Aside for the benefit of Plaintiff;

  3. All documents (including electronically stored information) memorializing, identifying or stating assertions of fact provided from any source regarding the formation of a Medicare Set Aside for the benefit of Plaintiff including, but not limited to, requirements for future care, costs for future care and life expectancy;

  4. All documents (including electronically stored information) memorializing, identifying or stating all calculations related to the formation of a Medicare Set Aside for the benefit of Plaintiff related to the years/months the Medicare Set Aside is scheduled to last before such funds are exhausted;

  5. All documents (including electronically stored information) memorializing, identifying or stating the amount of Medicare and/or Medicaid benefits that are expected to be paid for future medical services for the benefit of Plaintiff once funds from the Medicare Set Aside are exhausted; and

  6. All documents (including electronically stored information) memorializing, identifying or stating all considerations utilized in approving the amount of the Medicare Set Aside for the benefit of Plaintiff.

(Plaintiff’s IOE, Nos. 89, 91, 93, 97.)

To summarize, the subpoenas largely appear to seek documents and testimony regarding the retention and representation of Plaintiff by her legal team in the instant action, settlement negotiations, and mediation process; and documents pertaining to the partial settlement agreement reached by Plaintiffs, JT3 and Lancaster that occurred pursuant to or after that mediation. As to the latter requests, the Kadlecs seek documents containing information relating to Plaintiff's life expectancy and the nature and extent of Plaintiff's alleged general damages, regarding any offset to be applied post-verdict due to Plaintiff's partial settlement with Co-Defendants, and information regarding any residual amount set aside for Plaintiff's life care plan. The subpoenas also seek information regarding to Plaintiff’s marital status and family life.

In the instant motion for protective order, Plaintiff contends that the Kadlecs’ post-verdict “offset” argument is neither ripe nor relevant to their preparation for defending against Plaintiff’s damages to be claimed at trial. Plaintiff does not present legal authority to support this position. Plaintiff also alleges that the settlement reached with JT3 and Lancaster is only a partial settlement, and the amounts allocated in the Medicare Set Aside were based on the recommended allocation of the mediator, and not a life care plan. Plaintiff has already provided the Kadlecs with the Special Needs Trust and Medicare Set Aside and the partial settlement agreement, in its entirety subject to redaction, pursuant to earlier propounded discovery, which was litigated before this Court. (See Minute Order, October 29, 2020.) Thus, it appears the Kadlecs’ requests are directed at documentation that was relied and/or generated to create the Medicare Set Aside and partial settlement amount, such as the “life care plan” at mediation. In the Opposition, the Kadlecs contend that Plaintiff’s life expectancy and life care plan are relevant for determining damages in the case. The Court agrees. Further, the Kadlecs contends that the Medicare Set Aside is relevant to determining costs of Plaintiff’s future medical treatment. The Court finds that such information is relevant to Kadlec’s preparation for trial and post-trial motions regarding Plaintiff’s claim for damages. While the Court may find that such information is relevant to Kadlecs’ preparation for a defense to damages sought by Plaintiff at trial, it should also be noted that such request may be prohibited from discovery based on Plaintiff’s objections, explored below.

Next, Plaintiff contends that her life care plan has not been finalized as expert discovery has not yet been completed and such documents should be protected from discovery since they are premature pursuant to Code Civ. Proc. § 2034.060. Plaintiff presents no legal authority for this argument. Furthermore, Code Civ. Proc. § 2034.060, governs parties’ exchange of expert witnesses before trial and is not applicable to limit the discovery sought in the instant case. Accordingly, this objection is without merit.

Finally, Plaintiff’s argues that documents pertaining to Plaintiff’s marital status and family relations are irrelevant to the instant action given that Gomez’s loss of consortium claim was dismissed. By contrast, the Kadlecs opine that they anticipate Plaintiff’s counsel to introduce evidence of Plaintiff’s pre-accident life condition, including the dynamic between herself, her husband and children. The Kadlecs request Plaintiff’s marital information in order to provide a response to Plaintiff’s counsel’s portrayal, in an effort to reduce a jury award of damages. The Court agrees with the Kadlecs’ contention regarding relevance since the “before” and “after” of Plaintiff’s life condition is at issue for the purposes of determining damages in this case.

Accordingly, the Court finds that the documents and testimony sought by the Kadlecs are relevant insofar as the responsive information is either itself admissible or appears reasonably calculated to lead to the discovery of admissible evidence, subject to Plaintiff’s objections explored below.

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Attorney Client Privilege – The attorney client privilege protects against, and prevents, disclosure of a confidential communication transmitted between a lawyer and his client. (Evid. Code §954.) The purpose of the privilege is “to promote full and open discussion of the facts and tactics surrounding individual legal matters.” (Palmer v. Superior Court (2014) 231 Cal.App.4th 1214, 1225.) The nature and purpose of the privilege is such that where involved, even in camera inspection to determine whether the privilege exists is forbidden. (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 121.) Next, the attorney-client privilege extends to an attorney’s confidential communication with a non-attorney agent retained by the attorney to assist with the representation. (See Evid. Code, § 952; Fireman’s Fund Ins. Co. v. Sup. Ct. (2011) 196 Cal.App.4th 1263, 1274 [such agents fall into category of “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”].) Finally, pursuant to Code Civ. Proc. § 2031.240(c)(1), “[i]f 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.” The Court notes that no entity has propounded substantive responses nor given any deposition under the 91 total subpoenas issued by the Kadlecs.

Here, Plaintiff’s moving papers are devoid of factual information that would favor a finding that entire categories of documents demanded by the subpoenas to Plaintiff’s counsel regarding Plaintiff’s representation (Requests 1 & 3), the partial settlement with JT3 and Lancaster (Requests 2, 7, 8, & 10), and to the entities responsible for administering Plaintiff’s Special Needs Trusts and Medicare Set Aside (Request A–F) should be pre-emptively protected from disclosure based on a finding that these categories only seek information protected by the attorney client privilege. While the Court agrees that these categories will likely implicate communications generated between Plaintiff (by and through her guardians ad litem) and counsel, between counsel, or between counsel and retained agents regarding the Plaintiff’s representation, the Court finds that the responding entities have the capacity to independently file objection on this basis at that time.

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Attorney Work Product Privilege Next, pursuant to Code Civ. Proc. § 2018.030, the attorney-work product privilege protects writings that reflect “an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (Code Civ. Proc. § 2018.030(a).) However, other attorney work product is discoverable upon a finding by the Court 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.” (Code Civ. Proc. §2018.030(b).) Pertinent here, “witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its ‘attorney's impressions, conclusions, opinions, or legal research or theories.” (Code Civ. Proc. § 2018.030(a).) If not, then the items may be subject to discovery if plaintiff can show that “denial of discovery will unfairly prejudice [her] in preparing [her] claim ... or will result in an injustice.’ (§ 2018.030(b).)” (Coito v. Superior Court, 54 Cal. 4th 480, 486, 278 P.3d 860, 863 (2012).)

“In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege. . . . After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver. [Citation].” (Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.)

Here, Plaintiff argues that, for the subpoenas directed at Plaintiff’s counsel, any responsive document would necessarily qualify under the attorney work product privilege since the documents are in the possession of Plaintiff’s attorneys. Expounded above, that is simply not the standard.

Next, Plaintiff wholly fails to point to specific facts to support a finding for the application of the privilege to the objected-to categories of requested information. While the Court notes that the categories seeking documents regarding Plaintiff’s settlement negotiations and agreement may implicate the attorney work product doctrine, no such facts are before the Court. The Court declines to make a preemptive determination as to the applicability of the absolute or qualified attorney work product privilege.

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Mediation Privilege – California has an “extensive statutory scheme [Evidence Code § 1115 et seq.] protecting the confidentiality of mediation proceedings, with narrowly delineated exceptions.” (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 574 (“Simmons”).) All communications, negotiations or settlement discussions made by and between participants in the course of a “mediation” or “mediation consultation” are confidential. (Evid. Code § 1119 subd. (c); Eisendrath v. Sup. Ct. (2003) 109 Cal.App.4th 351, 358 (“Eisendrath”); Travelers Cas. & Sur. Co. v. Sup. Ct. (2005) 126 Cal.App.4th 1131, 1145–1146 & fn. 18 (dicta) (“Travelers”); see also Long Beach Memorial Med. Ctr. v. Sup. Ct. (2009) 172 Cal.App.4th 865, 875 [statements and materials used during mediation are confidential after mediation ends].)

Pursuant to Evid. Code §§ 1119 subd. (a) and 1126, no evidence of anything said in the course of or pursuant to a mediation or mediation consultation is admissible in any civil action or other noncriminal proceeding. (See Rojas v. Sup. Ct. (2004) 33 Cal.4th 407, 418 (“Rojas”); Simmons, supra, 44 Cal.4th at 578.) Likewise, no “writing” (as defined by Evid. Code § 250) “prepared for the purpose of, in the course of, or pursuant to, a mediation or mediation consultation . . . is admissible . . . in any . . . civil action, or other noncriminal proceeding . . . .” (Evid. Code §§ 1119(b) & 1126; Rojas, supra, 33 Cal.4th at 416; Simmons, supra, 44 Cal.4th at 578; Rinaker v. Sup. Ct. (1998) 62 Cal.App.4th 155, 164.) Furthermore, the mediator need not have been present for the confidentiality rule to apply; as the rule encompasses communications by participants before the end of mediation that are materially related to the purpose of the mediation, regardless of whether these communications are made in the mediator's presence.” (Eisendrath v. Sup. Ct. (2003) 109 Cal.App.4th 351, 364.) However, evidence admissible or subject to discovery outside mediation is not made inadmissible merely because it was introduced in a mediation. (Evid. Code § 1120 subd. (a); Rojas, supra, 33 Cal.4th at 415, 417; Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 62.)

The mediation confidentiality provisions are “intended to apply to ‘participants’ ” in the mediation. (See Travelers, supra, 126 Cal.App.4th at 1146, fn. 18 (dicta).) “Participants” include not only “parties,” but also nonparty participants attending the mediation and the mediator. (Id.; Eisendrath, supra, 109 Cal.App.4th at 359 [expounding “all persons” as used in § 1122(a)(1) includes parties, mediator and other nonparties attending mediation]

Pertinent here, “parties to the mediation” as stated in Evid. Code § 1121 also includes insurance representatives. (See Travelers, supra, 126 CA4th at 1146, fn. 18 (dicta).)

Finally, the party asserting the privilege has the burden of proving that the evidence is protected by mediation confidentiality. (Wimsatt v. Sup.Ct. (2007) 152 Cal.App.4th 137, 159–160.) To that extent, “the timing, context, and content of the communication all must be considered.” (Id.)

Here, Plaintiff states that the parties went to mediation on July 24, 2019, but continued settlement discussions for a full year. Based on this assertion, Plaintiff contends that all discovery requests seeking documents or communications regarding the partial settlement, life care analysis generated to reach the partial settlement, and the settlement itself were made “for the purpose of” and “pursuant to” mediation and are privileged. Plaintiff has not provided facts regarding the specific timing, context, or content of the communications, but seeks a blanket protective order finding mediation privilege. Notably, Plaintiff appears to conflate settlement negotiations and offers as holding the same privilege as mediation. This is not the case. Settlement offers and negotiation are inadmissible at trial pursuant to Evid. Code § 1152 to establish liability of a party. The mediation privilege, on the other hand, prevents statements and writings made and/or prepared in the course or pursuant to mediation from discovery. As stated above, the Court has no way to determine whether challenged communications or writings were made in the course or pursuant to mediation or settlement negotiations following but separate from mediation since Plaintiff has provided no facts of the timing, context, or content of the information sought to be withheld. Based on the foregoing, the Court will not issue a blanket protective order prohibiting entire categories of requested discovery from being produced but, again, will uphold the subpoenaed parties’ right to individually redact and object on this ground.

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Collateral Source Rule – The collateral source rule provides that

[I]f an injured party received some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor. Therefore, the collateral source rule precludes a defendant from presenting evidence [at trial] that an injured plaintiff's medical expenses have been paid by an independent source. While the rule may effectively allow a plaintiff to receive a double recovery, ‘[t]he collateral source rule expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities . . . To permit the defendant to tell the jury that the plaintiff has been recompensed by a collateral source for his medical costs might irretrievably upset the complex, delicate, and somewhat indefinable calculations which result in the normal jury verdict . . . .’

(Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 504–505 [cleaned up].)

Here, Plaintiff provides no legal authority to support the application of the collateral source rule to the discovery process. As such, and because the information sought by the Kadlecs is plainly relevant to calculating Plaintiff’s damages, there is no basis for granting the motion on this basis.

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Overbroad, undue burden – “An ‘objection based upon burden must be sustained by evidence showing the quantum of work required.’” (Williams v. Superior Court (2017) 3 Cal. 5th 531, 549 (In Williams, as with this case, “As the objecting party, Marshalls had the burden of supplying supporting evidence, but in response to Williams's motion to compel it offered none. Given this, the trial court had nothing in the record upon which to base a comparative judgment that any responsive burden would be undue or excessive, relative to the likelihood of admissible evidence being discovered.”).)

Here, it appears that Plaintiff objects to Kadlec’s use of “all and any” documents, as overbroad. However, Plaintiff’s objection does not identify the burden incurred by providing responsive documents with any specificity. Accordingly, Plaintiff’s objection based on overbreadth/undue burden is not adequate for the Court to issue a protective order.

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Deposition Testimony – Plaintiff failed to present substantive argument for the Court to grant the order to prevent the 8 deposition subpoenas for appearance and testimony to go forward. Rather, Plaintiff copied and pasted conclusiory arguments of relevance, privilege, and the collateral source rule in the “depositions” section of the Moving Papers (at p. 14). As explained above, these arguments do not favor the granting of the instant motion.

Conclusion

The Motion to Quash is DENIED IN PART; the Court orders all entities to propound responsive, redacted documents, with a privilege log regarding any withheld documents and/or redacted information on or before April 30, 2021. Further order all objections preserved for renewal during the course of oral depositions to be taken pursuant to the issued subpoenas.

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