2016-00196976-CU-PO

Christopher Cvitanov vs. Innovative Maintenance Solutions

Nature of Proceeding: Motion to Compel Plaintiff’s Deposition Testimony

Filed By: Ullrich, Gabriel

Defendant Innovative Maintenance Solutions, Inc.’s (“IMS”) motion to compel Plaintiff’s deposition and production of documents is ruled upon as follows.

Overview

This is a personal injury action arising out of a slip-and-fall incident while plaintiff was in the lobby at 1215 K Street in Sacramento on 5/23/2015. Plaintiff alleges that the fall caused him serious injury, including multiple back surgeries. On March 7, 2018, IMS took Plaintiff’s deposition.

IMS’ counsel asked the following questions:

(1) What body parts are still bothering you today?

Plaintiff’s counsel responded “well, I’ll object that the question’s overbroad and he’s only asking, or he’s only seeking damages for his back pain so I’m going to instruct him not to answer unless we narrow the question down to his back; that’s the only injury that’s being claimed in this litigation.”

(2) Is it true that your left shoulder and left elbow pain have resolved?

Plaintiff’s counsel responded “I’ll object that it violates his right to privacy. He’s not making a claim for those injuries so I’m going to instruct him not to answer because it’s irrelevant to this proceeding.”

IMS moves to compel Plaintiff’s further deposition to answer these questions. IMS also moves for issue sanctions for Plaintiff’s failure to preserve the crutches he was using at the time of the fall. IMS seeks an issue sanction that “IMS has established that the crutches were in a worn condition supportive of comparative fault.”

Answer Deposition Questions

The motion to compel the answer to question no. 1 is GRANTED. Plaintiff did not object on grounds of privacy and privilege. Objections based on irrelevance or overbreadth are not grounds to instruct the deponent not to answer. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014;

The motion to compel the answer to question no. 2 is DENIED. Generally, instructions by counsel to a witness not answer a question in deposition are improper except as to privileged or protected information. (Code Civ. Proc. § 2025. 460(a); Stewart v.

Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014-15; Weil & Brown, California Civil Procedure Before Trial (TRG 2017) § 8:734.1 et seq.) According to IMS, Plaintiff waived the privilege (or the objection should be overruled) because Plaintiff produced medical records which included complaints of the neck, left shoulder and left elbow in support of his prayer for economic damages.

In opposition, Plaintiff insists that he did not waive his right to privacy because: (1) he produced the records which included complaints of neck, left shoulder and left elbow because he also complained of lower back pain during the doctor’s visit (and he is only seeking damages for lower back pain), and (2) he produced the documents subject to a right to privacy objection.

The Court agrees with Plaintiff. Given that Plaintiff is seeking damages for lower back pain only, IMS’ right to discovery does not outweigh Plaintiff’s right to privacy as to all his body parts. While Plaintiff has waived his right to privacy as to his lower back pain, he has not waived his right to privacy to his other body parts. IMS proffers no legal authority that Plaintiff waived his right to privacy merely because he produced his medical records (which included pain to body parts not at issue in this litigation),

subject to a his right to privacy. Since Plaintiff has disavowed his right to seek damages for physical injuries, other than his lower back, in the event he desires to introduce evidence of other physical injuries, or seek damages for those injuries, IMS has the opportunity to move to exclude such evidence.

Issue Sanctions

IMS moves for issue sanctions for Plaintiff’s purported spoliation of the crutches he was using at the time of the fall.

At the outset, the Court rejects Plaintiff’s suggestion that IMS was required to but failed to meet-and-confer prior to seeking issue sanctions. Code of Civil Procedure §2023.030 which authorizes the Court to impose monetary, issue, evidentiary and terminating sanctions does not contain the mandatory meet-and-confer provision found in other discovery statutes relating to motions for further responses like §2030.300(b), §2031.310(b)(2) and §2033.290(b) and motions for protective orders.

Plaintiff advances that IMS is not entitled to issue sanctions because he has not violated a prior court order compelling discovery nor did IMS request that he preserve his crutches.

Generally, “the court may impose an issue, evidence, or terminating sanction, however, only if a party fails to obey a court order compelling discovery.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1423.) “The statutory requirement that there must be a failure to obey an order compelling discovery before the court may impose a nonmonetary sanction for misuse of the discovery process provides some assurance that such a potentially severe sanction will be reserved for those circumstances where the party’s discovery obligation is clear and the failure to comply with that obligation is clearly apparent. (Id.) Absent a violation of a court order, issue sanctions have been granted in certain circumstances, such as when the responding party: (1) attempts to delay trial and withhold promised items of discovery,

(2) attempts to introduce evidence at trial which it failed to produce earlier, or (3) engages in a pattern of willful discovery abuse that causes the unavailability of evidence. (Id. at 1424-26.)

The motion for issue sanctions is DENIED. Here, there was no violation of a court order. Nor has IMS shown a pattern of discovery abuse. Indeed, when IMS sought to inspect the crutches, Plaintiff responded that he was no longer in possession of them. According to Plaintiff, he threw the crutches away because he goes through multiple pairs of crutches a year, due to the fact that his crutches naturally deteriorate over time. He did not think his crutches would be important to the lawsuit, as nothing was wrong with the crutches as the time of the fall. (Declaration of Christopher Cvitanov.)

Both parties’ requests for monetary sanctions are DENIED.