On 05/11/2016 JUAN PULLIDO filed a Personal Injury - Motor Vehicle lawsuit against CLARK ROBERT MICHEL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are PATRICK T. MADDEN, JON R. TAKASUGI, HOLLY E. KENDIG and THOMAS D. LONG. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
PATRICK T. MADDEN
JON R. TAKASUGI
HOLLY E. KENDIG
THOMAS D. LONG
MICHEL CLARK ROBERT
DOES 1 TO 25
CLARKE ROBERT MICHEL
ALI FAHD Z.
LEIBL JACQUELINE SUZANNE ESQ.
ARDALAN PEZHMAN CHRISTOPHER ESQ.
LEIBL JACQUELINE SUZANNE
ARDALAN PEZHMAN CHRISTOPHER
PAULSON JOHN KENNETH
AVAKIAN ARMEN ALEXANDER ESQ.
AVAKIAN ARMEN ALEXANDER
6/18/2019: Minute Order - MINUTE ORDER (JURY TRIAL)
9/19/2019: Memorandum of Points & Authorities
12/3/2019: Other - - OTHER - TENTATIVE RULINGS ON EVIDENTIARY OBJECTIONS
3/8/2018: Minute Order -
11/26/2018: Stipulation - No Order - Stipulation - No Order Joint stipulation as to past medical expenses
12/4/2018: Minute Order - Minute Order (Jury Trial)
12/5/2018: Minute Order - Minute Order (Jury Trial)
12/14/2018: Minute Order - Minute Order (Jury Trial)
6/6/2019: Minute Order - MINUTE ORDER (JURY TRIAL)
6/18/2019: Motion in Limine - MOTION IN LIMINE PLAINTIFF'S MOTION IN LIMINE NO. 9
10/22/2018: Motion in Limine - Defendant's Motion in Limine No. 4 To Exclude All Evidence Of Settlement Discussions
10/22/2018: Witness List - Joint Witness List
10/26/2018: Opposition - Defendants' Opposition to Plaintiff's Motion in Limine No. 1; Memorandum of Points and Authorities
11/13/2018: Statement of the Case - Statement of the Case Joint Statement of the Case
11/14/2018: Motion in Limine - Motion in Limine #5 To Exclude Any Argument, Testimony Or Evidence Re The Sale and Registration Of Plaintiffs Truck And CA Drivers License
11/15/2018: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
11/16/2018: Reply - Reply Reply - Motion in limine #3
6/7/2019: Trial Brief
Hearing08/11/2020 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Compel second session of depositionRead MoreRead Less
Hearing08/11/2020 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Trial Setting ConferenceRead MoreRead Less
Hearing08/11/2020 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Compel second independent medical examinationRead MoreRead Less
Docketat 08:30 AM in Department 31, Thomas D. Long, Presiding; Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion to Compel (second session of deposition) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion to Compel (second independent medical examination) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 10:00 AM in Department 31, Thomas D. Long, Presiding; Final Status Conference - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 2:34 PM in Department 31, Thomas D. Long, Presiding; Court OrderRead MoreRead Less
DocketCertificate of Mailing for ((Court Order Re Continuance of Motion Pursuant to Emergency Or...) of 04/17/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order Re Continuance of Motion Pursuant to Emergency Or...)); Filed by ClerkRead MoreRead Less
DocketDEMAND FOR JURY TRIALRead MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketANSWER TO COMPLAINTRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Juan Pulido (Plaintiff); Manuel Cruz (Plaintiff)Read MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Juan Pulido (Plaintiff); Manuel Cruz (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Juan Pulido (Plaintiff); Manuel Cruz (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Case Number: BC620184 Hearing Date: February 01, 2021 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
JUAN PULLIDO ET AL.,
CLARK ROBERT MICHEL, ET AL.,
CASE NO: BC620184
[TENTATIVE] ORDER GRANTING MOTIONS FOR PROTECTIVE ORDERS IN PART AND DENYING IN PART
February 1, 2021
Plaintiffs, Juan Pulido and Manual Cruz (collectively, “Plaintiffs”) filed this action against Defendants Robert Michel Clarke (“Clarke”) and Nubia Delgadillo for damages arising from a motor vehicle accident.
Defendant Clarke provides that on 4/30/20, Plaintiffs propounded form interrogatories, set four, special interrogatories, set three, request for production of documents (“RPDs”), set three, and request for admissions (“RFAs”), set four.
Defendant, at this time, moves for a protective order as to each. The subject discovery each seek information concerning surveillance of Pulido. The motions, oppositions and replies are largely identical, and thus, will be addressed together.
Motions for Protective Order
Clarke states that he objected to subject discovery because they invade the attorney-client and work-product privileges. First, Clarke asserts RFAs, set four, Nos. 104-108, and the accompanying form interrogatory No. 17.1, are cumulative of RFAs, set three, Nos 42 and 43 previously served with Plaintiffs’ prior discovery, to which Plaintiffs failed to move to compel further responses to. Clarke further asserts RFAs, set four, Nos. 109-173 invade the attorney-product as they request information concerning any surveillance footage Clarke may have of Pulido, and that RFAs Nos. 164-173. Second, Clarke contends special interrogatories, set three, Nos. 23-30 are duplicative of special interrogatories, set two, Nos. 20-21. Additionally, Clarke argues special interrogatories, set three, Nos. 31-34 concerning surveillance of Pulido invade attorney work-product. Third, Clarke contends RPDs, set three, Nos. 29,34, and 64-69 invade the attorney work-product doctrine, and that RPDs 30-33, 35-38 invade attorney work-product and are duplicative of a prior discovery request. Moreover, Clarke argues RPDs, set three, Nos. 39-43 and 49-58 invade the attorney client-privilege, and that Nos. 44-48 and 59-63 are irrelevant. Clarke contends that he cannot be forced to disclose whether and when surveillance was conducted on Plaintiff, or whether and when reports of said surveillance were prepared because this information could disclose Clarke’s counsel’s work product or theory of the case. Further, Clarke avers this information will be used by Plaintiff to correct his testimony.
In opposition, Plaintiffs contend each of Clarke’s notices of motion is fatally defective. Further, Plaintiffs contend the discovery requests are not duplicative or redundant, but rather are further broken down by relevant dates not previously identified in discovery. Additionally, Plaintiffs argue that as long as the discovery requests do not seek the content of any work-product contents, Plaintiffs may ask for information about the existence, nature, condition or location of privileged documents. Plaintiffs contend that trial courts in this matter have already held that the surveillance footage is not subject to work-product and must be disclosed. Further, Plaintiffs argue there is good cause for the sub rosa discovery in order to prevent an ambush at trial, and that Clarke cannot establish any sub rosa surveillance was actually the product of defense counsel’s work.
Notice of Motion
Although the notice of motion as to each motion for protective order does not include the exact number of every discovery request, the notice of motion identifies the discovery at issue, and Clarke’s memorandum of points and authorities, and separate statement for each motion, identifies each specific request at issue.
A notice of motion must state the grounds upon which the motion is to be made, but the motion must also sufficiently define the issues for the information and attention of the adverse party and the court. (Hernandez v. National Dairy Products Co. (1954) 126 Cal.App.2d 490, 493.) Furthermore, a notice of motion must state the grounds upon which it will be made. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) The trial court may consider generally only the grounds stated in the notice of motion, but a trial court may overlook the failure of a notice of motion to state a ground for relief when the supporting materials discuss and support that ground for relief so that it is clear that relief is sought on that ground. (Id. at 1126-27). In this situation, the trial court may treat the supporting papers as curing the defective notice. (Id. at 1127.)
In this case, Clarke’s memorandums and separate statements addressed each specific request at issue, and Plaintiffs do not dispute they are aware which requests Clarke is moving for a protective order to or otherwise claim they were unable to address Clarke’s arguments. Thus, the court will address the motions on their merits.
The Court has reviewed the primary case relied upon by the parties, Suezaki v. Superior Court (1962) 58 Cal.2d 166, as the case is highly relevant to the issue before the Court herein. The Supreme Court, in Suezaki, was asked to determine whether the defendant’s surveillance footage of the plaintiff was privileged as a matter of law. The Court held that the footage is not privileged, but that it is subject to work product protection. “While it would appear that inspection of the films should be permitted, the discretion granted by the statute is the discretion of the trial court, not of this court.” (Id. at 179.) The Court remanded the issue back to the trial court to determine whether the footage must be produced in light of the work product doctrine.
Thus, this Court must consider the work product doctrine. CCP § 2018.030 states:
(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.
(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines 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.
Furthermore, as the Rutter Guide on Civil Procedure Before Trial, §§8:243, et seq., explains on this issue:
Surprisingly, there is no recent authority dealing with claims of work product protection for photos, videos, etc. prepared under an attorney's direction. (Again, the Discovery Act is not helpful because it leaves the definition of “work product” to case law.)
• [8:243.1] Photographs of physical evidence taken by the attorney or attorney's agents (e.g., the damaged vehicle, the accident scene, the injuries, etc.) may be treated as “nonderivative” material; and thus discoverable as “mere evidence.”
• [8:243.2] But photos or films reflecting counsel's strategies and tactics in preparation for trial should be treated as “qualified work product” (e.g., a video or surveillance film impeaching plaintiff's claim of disabling injury). It would be basically unfair to allow the other side free access to such material. That party should have to show a special need for discovery and inability to obtain similar information, etc. [See Suezaki v. Sup.Ct. (Crawford) (1962) 58 C2d 166, 177–178, 23 CR 368, 374 (decided before attorney “work product” received statutory protection)]
• [8:243.3] Indeed, certain photos or films “reflecting” counsel's “impressions, conclusions (or) theories” may be “writings” entitled to absolute protection (e.g., photos taken from a particular angle or viewpoint, photographic enlargements, that show counsel's theory of liability).
The Suezaki Court did not specifically hold that surveillance footage is discoverable or not discoverable, but the opinion provided guidance for the trial court to make this determination. What is more, this Court notes that the burden on the party seeking production of qualified work product is higher now than it was when Suezaki was decided- that is, unfair prejudice now versus good cause then.
Request for Admissions and Form Interrogatory 17.1
RFAs, Set three, Nos. 104-108
Here, Clarke argues RFAs, set four, Nos. 104-108 are cumulative of a prior set of discovery served on Clarke- RFAs, set three, Nos. 42-43.
RFAs, set three, Nos. 42-43 state, “Admit that YOU conducted surveillance on JUAN PULIDO at any time from September 1, 2018, to the present,” and “Admit that YOU have not conducted surveillance on JUAN PULIDO at any time from September 1, 2018, to the present,” respectively.”
The subject RFAs, set four, Nos. 104-108 request Clarke to admit to conducting surveillance on Pulido on specific dates, including from 3/30/15 to 11/27/18, 11/28/18-12/14/18, 12/15/18-6/4/19, 6/5/19-4/30/20.
It is improper to re-propound identical discovery requests when the propounding party failed to move to compel on the first set of requests. (See generally Professional Career Colleges v. Superior Court (1989) 207 Cal.App.3d 490.) Even if the requests are not identical, the Court “possesses considerable discretion to restrict burdensome or duplicative discovery.” (Carter v. Superior Court (1990) 218 Cal.App.3d 994, 998.)
Here, although Plaintiffs propounded the subject RFAs before the deadline for them to file a motion to compel further; nonetheless, RFAs, Nos. 105-108 are essentially duplicative of the dates in RFAs, set three, Nos. 42-43, which were 9/1/18 to the present. There is tremendous overlap between the requests, and the court uses its discretion to prevent the duplicative discovery.
Therefore, Clarke’s motion is granted as to RFAs, set four, Nos. 105-108.
However, RFA No. 104 requests information concerning a time period not previously addressed. Thus, Clarke’s motion is denied as to RFA No. 104.
RFAs, Set three, Nos. 109-173
Clarke contends the attorney work-product doctrine applies to RFAs 109-173. It is not enough for a party to assert that something is protected as privileged, but rather the burden is on the party asserting the objection to prove the preliminary facts that show the attorney-client or work product protection applies. (Mize v. Atchison, T. & S. F. ry. Co. (1975) 46 Cal.App.3d 436, 447; see also Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494-95 [It is the burden of the objecting party to support the applicability of a particular privilege].)
While Clarke asserts RFAs Nos. 109-173 are protected work-product, Clarke does not adequately explain how answering the RFAs would reflect defense counsel’s evaluation, tactics, or impressions of this case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts. Plaintiffs are requesting information regarding the subject surveillance and whether it exists, not copies of the materials or reports themselves. Clarke fails to show how providing information about surveillance materials is protected work-product.
Furthermore, although Clarke contends RFAs 164-173 are irrelevant, “Unless otherwise limited by order of the court in accordance with [the discovery statutes], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action....” (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-13.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Id. at 1013.) Given the discovery requests concerning the surveillance materials, Clarke does not show these RFAs are irrelevant or burdensome.
The motion is denied as to RFAs 109-173.
Special Interrogatories, Set Three, Nos. 23-30
Clarke contends special interrogatories Nos. 23-30 are duplicative of previous demands served by Plaintiffs. The previous requests- RFAs Nos. 20-21- state: “State all dates on which YOU conducted any surveillance of JUAN PULIDO from September 1, 2018, through the present,” and “IDENTIFY all PERSONS who conducted surveillance of JUAN PULIDO from September 1, 2018, through the present.”
Special interrogatories Nos. 23-30 similarly request Clarke to state all dates he conducted surveillance on Plaintiff from 11/28/18 through 4/30/20. Because of the tremendous overlap, the court uses its discretion to prevent the duplicative discovery.
The motion it granted as to special interrogatories Nos. 23-30.
Special Interrogatories 31-34
Clarke contends special interrogatories are subject to work-product protection. These requests ask Clarke to identify all documents relating to surveillance conducted on Pulido from 11/28/18 through 4/30/20. This information would necessarily include documents with defense counsel’s impressions, opinions and conclusions concerning Pulido and this action. It is counsel’s choice to determine which writings concerning any surveillance done of Pulido may be used to support Clarke’s claims or theories. Plaintiffs do not establish they would be unfairly prejudiced if the information is not produced.
The motion is granted as to Special Interrogatories Nos. 23-30.
RPDs 29-38 and 64-88
Clarke avers RPDs 29-38 and 64-88 are work-product. These RPDs request all documents pertaining to surveillance conducted on Pulido, all documents prepared by the investigation company Clarke hired, and all surveillance photos and footage of Pulido.
CCP § 2018.030(b) states “[t]he work product of an attorney … is not discoverable unless the court determines 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.” The subject discovery sought was prepared in anticipation of litigation, and thus, is qualified work product. While Plaintiffs contend that she should be able to analyze the footage and prepare evidence or witnesses necessary to explain or supplement the information contained in the footage, Plaintiffs do not establish that they are entitled to see the evidence before trial. The evidence would represent material prepared for cross-examination or impeachment purposes. If Plaintiffs are able to review such evidence now, they would be able to alter their testimony at trial in order to counter any prejudicial impact the films might have and such a result would not contribute to the truth finding process. Plaintiffs, thus, do not show they will be unfairly prejudiced if responses are not provided by Clarke.
The motion is granted as to RPDs29-38 and 64-88.
RPDs 39-43 and 49-58
RPDs 39-43 ask for all communications, including email and text messages, between defense counsel and any investigation company hired by counsel.
Evidence Code § 952 provides: “As used in this article, “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.” “Confidential communications also include those made to third parties--such as the lawyer's secretary, a physician, or similar expert--for the purpose of transmitting such information to the lawyer because they are “reasonably necessary for the transmission of the information.” (Id., Law Revision Commission Comments 1965 Amendment.)
Consequently, the communications between defense counsel and any investigation company concerning this matter, and thus necessarily concerning Clarke, are protected communications. (See Kaiser Found. Hosps. v. Sup.Ct. (1998) 66 Cal.App.4th 1217, 1228 [where a prelitigation investigation is performed by a nonlawyer in consultation with counsel, the attorney-client privilege protects communications between the investigator and counsel].)
Therefore, the motion is granted as RPDs 39-43 and 49-58.
RPDs 44-48 and 59-63
Clarke asserts RPDs 44-48 and 59-63 seek invoices and payments made to investigation companies. However, Clarke fails to further articulate why the purported documents cannot lead to admissible evidence. Because the rules are applied liberally in favor of discovery, the motion is denied as to 44-48 and 59-63.
Moving Defendant is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at firstname.lastname@example.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.
Dated this 1st day of February, 2021
Hon. Thomas D. Long
Judge of the Superior Court
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