2017-00208894-CU-PA

Dennis Cieri vs. Brooks Ashley Joel Brown

Nature of Proceeding: Motion to Compel Further Deposition Testimony (Jancie Cieri)

Filed By: McQuillan, Steven M.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the specific discovery requests that will be addressed at the hearing. Counsel are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

Defendants’ motion to compel plaintiff Janice Cieri’s (“Janice”) to answer certain deposition questions and produce documents specified in defendants’ notice of deposition is DENIED except as noted otherwise, as follows.

The notice of motion does not provide notice of the court’s tentative ruling system, as required by Local Rule 1.06, and does not provide the correct address for Dept. 53/54. Moving counsel is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the court’s tentative ruling procedure and the manner to request a hearing, along with the correct address for Dept. 53/54. If moving counsel is unable to contact opposing counsel prior to hearing, moving counsel is ordered to appear at the hearing in person or by telephone.

Factual Background

This action arises from a motor vehicle accident. Plaintiffs assert that defendant Brooks Brown was driving a vehicle owned by defendant Robert Brown. According to defendants, Brooks Brown has no recollection of the accident as a result of a sudden medical episode immediately before it occurred.

Both plaintiffs were deposed in October 2017. In November 2017, defendants accepted Dennis Cieri’s (“Dennis”) settlement offer but plaintiff Janice’s claims remain unresolved.

Moving Papers. Defendants now move to compel Janice’s answers to certain deposition questions and her production of documents identified in the deposition notice. Specifically, defendants contend Janice was improperly instructed not to answer several questions and failed to produce a number of documents. Defendants maintain that this discovery is relevant to the ongoing claims by Janice. Defendants also seek monetary sanctions of $1,786.

Opposition. Plaintiffs oppose, arguing that the question by defendants about Janice’s current medications not only invade her right to privacy but also exceed the scope of permissible discovery, while the question about her own definition of “anxiety” improperly seeks an expert opinion. With respect to the requests for documents, the opposition maintains that they are identical to defendants’ earlier Requests for Production and that the responsive documents were previously produced. Finally, contending this motion is entirely meritless, plaintiffs seek monetary sanctions of $1,750.

Analysis

At the outset, the court must remind all counsel but especially defendants’ that given the number of motions such as this which must be addressed on a daily basis, there are simply not enough judicial resources available to resolve each and every discovery dispute that could have and should have been resolved informally. This serves to highlight the critical need for counsel’s legitimate, reasonable and good faith meet-and-confer efforts before filing any discovery motion. Although it dealt with a motion to compel answers to deposition questions, the decision of Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 is instructive in that it clarifies that the meet-and-confer process is not intended to be some perfunctory formality but rather it “requires…a serious effort at negotiation and informal resolution.” (Id., at 1438.) Nevertheless, the court will here address another discovery dispute that should have been resolved without the need to use finite judicial resources.

Questions at Issue. The first deposition question for which defendants now seek an answer from Janice is, ‘Are you currently taking any medications?’ Objections based on privacy and overbreadth were asserted. The court will sustain both of these objections. In short, without limiting this question either to those medications which might affect Janice’s ability to provide accurate testimony or which are otherwise related to the injuries alleged as result of the subject accident, this unqualified question is impermissibly overbroad and invades Janice’s right to privacy. Thus, the court will not order Janice to provide an answer to this question.

To the extent defendants suggest Janice’s response to form interrogatories (stating the medications prescribed as a result of the subject accident ‘included but were not limited to…’) was unclear or incomplete, they should have filed an appropriate motion at that time. Likewise, while defendants may be entitled to explore whether any medications Janice is taking may be contributing to any of the complaints she is attributing to the subject accident, the unqualified question asking her to list all medications she is currently taking is not narrowly tailored to obtain the type of information which defendants seek and as such, it impermissibly invades her right to privacy in matters not having directly relevance to the current litigation. (See, e.g., Alch v. Superior Court (Time Warner Entertainment Co.) (2008) 165 Cal.App.4th 1412, 1432-1433 [where privacy rights are involved, party seeking discovery must show information sought is not only “directly relevant” and “essential” to the case]; Tien v. Superior Court (Tenet Healthcare Corp.) (2006) 139 Cal.App.4th 528, 539-540; In re Marriage of Harris (2004) 34 Cal.4th 210, 244 [discovery into private matters must be “narrowly tailored” and it must be shown there are no less intrusive means to obtain it].)

The next questions at issue relate to (1) Janice’s understanding as to the difference between mental and physical conditions, (2) whether she would characterize her claimed anxiety as a mental or physical condition, and (3) how she defines “anxiety.” Several objections were asserted to these questions and Janice was instructed not to answer. The court finds this series of questions to be improper as they seek information on which is Janice is not qualified to testify and is otherwise irrelevant. Accordingly, no answers to these questions will be compelled here.

Documents at Issue. According to defendants’ separate statement, the following are the specific document requests at issue:

Any and all photographs and other WRITINGS in YOUR possession which

depict any injuries and/or damages sustained as a result of the occurrence giving rise to this lawsuit.

Any and all photographs or other WRITINGS in YOUR possession which depict damage to any personal property involved in the occurrence giving rise to this lawsuit.

With respect to these photographs, defendants insist that Dennis admitted to taking and possessing photographs of both his vehicle and the scene of the subject accident but both he and Janice have unreasonably refused to produce them. The opposition, on the other hand, insists that all post-accident photographs of the vehicle are already in defendants’ possession and that Dennis, who suffered a brain injury in the accident, was mistaken about having taken photographs of the scene.

Even assuming they exist, the court will not order Janice to produce any photographs of the scene of the accident since such photographs are not responsive to either of the two requests for photographs. These requests are, by their own terms, limited to photographs of the “injuries and/or damages” and “damage to any personal property.” Defendants have not cited any request for production of photographs of the scene of the accident.

Finally, while it appears plaintiffs have already produced photographs of the vehicle damage, the court will in an abundance of caution order Janice to verify under oath that all photographs of the vehicle damage in her possession, custody or control have already been produced. If any have not been produced, they shall be promptly produced.

Conclusion

In light of the foregoing, the motion to compel is DENIED except as to the requests for photographs of the vehicle damage caused by the subject accident. Janice shall no later than 3/9/2018 either verify under oath that all such photographs in her possession, custody or control have been produced and if not, produce all which were not previously produced.

Finding that this motion was not substantially justified under the circumstances, plaintiffs are awarded monetary sanctions against defendants in the amount of $700, representing two (2) hours of attorney time. Sanctions to be paid no later than 3/21/2018 and if not paid by that date, plaintiffs may prepare for the court’s signature a formal order granting the sanctions, which may then be enforced as a separate judgment against defendants. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)