Pending - Other Pending
Contract - Insurance
RALPH C. HOFER
ZAVEN V. SINANIAN
GOVERNMENT EMPLOYEES INSURANCE COMPANY
COLLISION DYNAMICS LLC
MOSS ARI EMANUEL
MOSS ARI E
THARPE & HOWELL THE LAW OFFICES OF
LEBEAU JARED KYLE
COLMAN LAW GROUP
LAKE TIMOTHY DENNIS
PERKINS JAMES JOHN
BROOKS JOHN TINLEY
5/22/2019: Application to be Admitted Pro Hac Vice
5/22/2019: Declaration - DECLARATION DECLARATION OF ARI MOSS
6/29/2021: Minute Order - MINUTE ORDER (POST-SETTLEMENT STATUS CONFERENCE)
10/5/2021: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE MEDIATION AND DISCOVERY)
1/11/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: MANDATORY SETTLEMENT CONFERENCE)
2/16/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: SANCTIONS AGAINST PLAINTIFF PURSUANT ...)
3/11/2022: Notice of Settlement
3/15/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [NOTICE OF SETTLEMENT]
3/15/2022: Minute Order - MINUTE ORDER (COURT ORDER)
3/17/2022: Request for Dismissal
3/15/2021: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE MANDATORY SETTLEMENT CONFERENCE SCHEDULE)
3/15/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (STATUS CONFERENCE RE MANDATORY SETTLEMENT CONFERENCE SCHEDULE) OF 03/15/2021
2/17/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: MANDATORY SETTLEMENT CONFERENCE; STAT...)
10/23/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: MEDIATION AND DISCOVERY)
10/2/2020: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: SETTING OF HEARING ON MOTION TO QUASH...)
9/28/2020: Notice - NOTICE OF WITHDRAWAL OF MOTION TO QUASH
9/28/2020: Proof of Service by Mail
8/21/2020: Substitution of Attorney
Docketat 09:00 AM in Department D; Jury Trial - Not Held - Vacated by Court[+] Read More [-] Read Less
Docketat 08:30 AM in Department D; Order to Show Cause Re: Dismissal (Settlement) - Not Held - Vacated by Court[+] Read More [-] Read Less
Docketat 09:00 AM in Department D; Final Status Conference - Not Held - Vacated by Court[+] Read More [-] Read Less
DocketRequest for Dismissal; Filed by MARINE GINOSYAN (Plaintiff); ARMEN SUGHYAN (Plaintiff); ARTASHES SUGHYAN (Plaintiff)[+] Read More [-] Read Less
Docketat 3:09 PM in Department D; Court Order[+] Read More [-] Read Less
DocketCertificate of Mailing for ([Notice of Settlement]); Filed by Clerk[+] Read More [-] Read Less
DocketMinute Order ( (Court Order)); Filed by Clerk[+] Read More [-] Read Less
DocketNotice of Settlement; Filed by MARINE GINOSYAN (Plaintiff)[+] Read More [-] Read Less
Docketat 08:30 AM in Department D; Order to Show Cause Re: (Mandatory Settlement Conference) - Held[+] Read More [-] Read Less
Docketat 08:30 AM in Department D; Order to Show Cause Re: (Sanctions Against Plaintiff Pursuant to Code of Civil Procedure 177.5 for Failure to Appear on 01/11/2022) - Held[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by MARINE GINOSYAN (Plaintiff); ARMEN SUGHYAN (Plaintiff); ARTASHES SUGHYAN (Plaintiff)[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by MARINE GINOSYAN (Plaintiff); ARMEN SUGHYAN (Plaintiff); ARTASHES SUGHYAN (Plaintiff)[+] Read More [-] Read Less
DocketComplaint filed-Summons Issued; Filed by null[+] Read More [-] Read Less
DocketSummons; Filed by null[+] Read More [-] Read Less
DocketCivil Case Cover Sheet[+] Read More [-] Read Less
DocketNotice of Case Assignment - Unlimited Civil Case[+] Read More [-] Read Less
DocketNotice (Of Order to Show Cause Re Failure to Comply with Trial Court Delay Reduction Act)[+] Read More [-] Read Less
DocketNotice of Case Management Conference[+] Read More [-] Read Less
DocketSummons Filed[+] Read More [-] Read Less
DocketComplaint filed-Summons Issued[+] Read More [-] Read Less
Case Number: ****7356 Hearing Date: February 28, 2020 Dept: NCD
Case No: EC 067356 Trial Date: June 1, 2020
Case Name: Ginosyan v. Government Employees Insurance Company, et al.
MOTION TO COMPEL COMPLIANCE WITH SUBPOENA
(CCP ; 2020.240, 2025.450, et seq.)
Moving Party: Plaintiff Marine Ginosyan
Responding Party: Third party Collision Dynamics, LLC
“Joinder” by defendant Government Employees Insurance Company
Order compelling Collision Dynamics, LLC to comply with business record subpoena propounded by plaintiff in this matter
DECLARATION SUPPORTING MOTION:
Reasonable and good faith attempt to resolve informally: Exhibit 7
Plaintiff Marine Ginosyan alleges she procured from defendant Government Employees Insurance Company (“GEICO”) an automobile insurance policy, which insured her 2017 Audi AG vehicle. Plaintiffs allege that on the evening of July 28, 2017, plaintiff’s son Artashes Sughyan parked the subject vehicle on Victory Boulevard in Glendale, outside an apartment building with a recording video camera, and drove to dinner with a friend in the friend’s automobile. Upon returning to his car from dinner on July 29, 2017, shortly after midnight, Sughyan discovered that the vehicle had been side-swiped, and damaged in what appeared to be a hit and run accident. Sughyan called law enforcement, which took a statement, and plaintiff later that day informed defendant GEICO of the body damage, and an insurance claim was opened. The vehicle was then entrusted to Route 66 Collision Center, and plaintiff ensured it was available for inspection.
The operative complaint, the Second Amended Complaint (“SAC”) alleges that the vehicle was inspected by defendant Collision Dynamics, LLC, sent by GEICO, and Collision Dynamics concluded that the vehicle was moving at the time of the accident, and provided its conclusions to GEICO. Plaintiff alleges that GEICO improperly accepted the conclusion of Collision Dynamics, without inquiring into the methods used, or conducting interviews, or inquiring concerning video recording equipment on the apartment buildings at the time or otherwise properly investigating. Plaintiff alleges that GEICO failed to meet its obligation to report the suspected insurance fraud because defendant makes a regular practice of denying claims based on insurance fraud and did not want to raise suspicion of the Department of Insurance that it engages in unlawful practices.
Under CCP ;2017.010, “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.”
CCP ; 2020.220(c) provides that
“Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of
(1) Personal attendance and testimony, if the subpoena so specifies.
(2) Any specified production, inspection, testing and sampling...”
CCP ; 2025.240 provides: “A deponent who disobeys a deposition subpoena in any manner described in subdivision (c) of Section 2020.220 may be punished for contempt under Chapter 7 (commencing with Section 2023.010) without the necessity of a prior order of court directing compliance by the witness.”
Under CCP ; 2025.480:
“(a) If a deponent fails to answer any question or to produce any document or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”
CCP ; 1987.1 provides in pertinent part:
“(a) 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. (b) The following persons may make a motion pursuant to subdivision (a): (1) A party.”
Here, the subpoena was served on Collision Dynamics, LLC, which was previously a party to this action. On August 24, 2018, plaintiff filed a Request for Dismissal without prejudice of defendant Collision Dynamics, which was entered as requested the same date.
Collision Dynamics served written objections on October 4, 2019.
The opposition argues that the motion is not timely. Collision Dynamics relies on CCP ; 1985.3 (g), pertaining to subpoenas for personal records of consumers, which states, “The party requesting a consumer's personal records may bring a motion under Section 1987.1 to enforce the subpoena within 20 days of service of the written objection.” This does not appear to be a subpoena for consumer records. The opposition also cites to CCP ; 1985.6, pertaining to employment records. The subpoena here is a deposition subpoena for production of business records, which would be subject to CCP ; 2025.480 (b), under which a motion to compel production, “shall be made no later than 60 days after the completion of the record of the deposition…” The motion was served on November 18, 2019, within sixty days of service of objections, and it is not denied as untimely.
The deposition subpoena requests:
“All reports provided by Collision Dynamics, LLC or any of its employees, including but not limited to Scott Narramore to Government Employees Insurance Company between January 1, 2015 and the date of response.”
The subpoena also seeks written communications between Collision Dynamics and GEICO, notes taken as to each report, and photographs taken as to each report. [Items 3-5].
The objections state that the requests are overbroad as to time frame and subject matter, call for documents protected by the attorney work product privilege, invade respondent’s privacy interest, invade privacy interests of Geico’s insured, are invasive of work product privilege of the client, burdensome, oppressive, not relevant, violative of trade secrets. There is also an objection that similar items were demanded when responding party was a defendant in this action, to which objections were made, so plaintiff has waived the right to this discovery by inaction.
The motion argues that the information is necessary for plaintiff to evaluate her insurance bad faith claim against Geico, as Geico has been arguing that it relied on the opinion of Collision Dynamics and so reasonably denied plaintiff’s claim, but it is plaintiff’s contention that Geico’s reliance on Collision Dynamics was not reasonable given a history of advising the denial of claims without proper grounds.
Plaintiff relies on Chateau Chamberay Homeowners Assn. v. Associated Int. Ins. Co. (2001) 90 Cal.App.4th 335, in which the Second District reviewed case authority on the matter and noted that there are several circumstances where a bad faith claim based on a biased investigation “should go to the jury:”
“(1) the insurer was guilty of misrepresenting the nature of the investigatory proceedings (see Tomaselli v. Transamerica Ins. Co., supra, 25 Cal. App. 4th 1269, 1281 [allowing a bad faith claim to go to the jury where an insurance company without any evidence of fraud forced an insured to submit to an examination under oath, dissuaded the insured from having an attorney present, and misled the insured about the purpose of the examination]); (2) the insurer's employees lied during the depositions or to the insured; (3) the insurer dishonestly selected its experts; (4) the insurer's experts were
unreasonable; and (5) the [*349] insurer failed to conduct a thorough investigation. ( Guebara v. Allstate Ins. Co., supra, 237 F.3d at p. 996.)”
Chateau Chamberay, at 348-349 (italics in original).
Reports of other incidents provided to Geico by Collision Dynamics would be directly relevant to whether the insurer dishonestly selected Collision Dynamic, and whether Collision Dynamics acted unreasonably.
The opposition primarily argues that the subpoena does not seek business records, but Collision Dynamics did not assert such an objection in the objections. There is also an argument that the subpoena was served in bad faith, given that plaintiff previously attempted to obtain this discovery when Collision Dynamics was a party, and failed to follow-up on that discovery. No authority is cited under which this delayed action would be inappropriate.
The opposition then reasserts its objections but does not meet its burden to justify any of the objections. For example, with respect to the burdensomeness objection, defendant does not explain that there are seven rooms full of responsive documents which defendant would be required to cull through. See, eg. Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318 (demand held “oppressive” where declarations showed over 13,000 claims would have to be reviewed, requiring 5 adjusters working full time for six weeks each.). Weil & Brown advise practitioners:
“Avoid raising the ‘burdensome and oppressive’ objection unless the facts are truly unusual (e.g very fragile property which could be damaged by any movement, touching, etc.). If you are going to object in such a case, state the reasons for your objection and offer to permit whatever inspection can be allowed under the circumstances.” (Emphasis in the original).
Weil & Brown, Civ. Proc. Before Trial (The Rutter Group, 2019 rev) ; 8:1476.
The opposition here at best includes a declaration of Collision Dynamics’ principal consultant who states, “The scope of the records sought are not readily available and would require at least dozens of hours to compile and produce.” [Naramore Decl.¶ 7]. It is not clearly explained how long it would take, why it would take so long, or that “dozens” of hours would be unreasonable.
With respect to any attorney-client or work product privilege, it would similarly be the initial burden of the party seeking to withhold a document from discovery to show that a privilege applies. See Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 (“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,” citing D.I Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729).
As for privacy, again, the initial burden is on the party claiming the privilege to establish the basis for it, which has not been done here. See Williams v. Superior Court (July 13, 2017) 3 Cal.5th 531, 556-557 (“The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and
a threatened intrusion that is serious…. Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion…”). It will be discussed at the hearing if it would be acceptable for personal identifying information of other insureds to be redacted.
The objections here have not been established as appropriate, so are overruled, and the motion to compel is granted.
The reply discusses case law from other jurisdictions in which reports from an insurer’s expert have been found discoverable. [See RFJN, Exs. 1-4]. It would appear that in such cases, there should be some limitation to reports concerning incidents similar to that in the action in which bad faith is urged. This issue will be discussed at the hearing, as, depending on how many reports would be responsive over the five-year period at issue, it might be reasonable to limit the reports to be produced to those, for example, concerning automobile accidents involving property damage. Hussey v. State Farm Lloyds Insurance Company (E.D. Texas 2003) 216 F.R.D. 591, for example, involved a request for engineering reports, “on residential foundation claims where damage was alleged to be caused by a plumbing leak.” [Ex. 1, Hussey, at 593]. Some similar limitation may be discussed here.
Plaintiff’s Motion to Compel Percipient Witness, Collision Dynamics, LLC Compliance with Business Records Subpoena is GRANTED. Objections are OVERRULED.
Production required by Items 1, 3, 4 and 5 of Deposition Subpoena for Production of Business Records issued on September 27, 2019 to Collision Dynamics, LLC is to be made by March 27, 2020.
Get Deeper Insights on Court Cases