Case Number: BC622771 Hearing Date: January 16, 2018 Dept: 97

25

ramon gallegos,

Plaintiff,

v.

ryan chien, et al.,

Defendants.

Case No.: BC622771

Related with Case No.: BC650762

Hearing Date: January 16, 2018

[TENTATIVE] order RE:

(1) Plaintiff’s motion to compel further responses to form interrogatories 13.1 and 13.2

(2) plaintiff’s motion for protective order

(3) defendant’s motion to compel deposition of plaintiff

(4) defendant’s motion to compel neuropsychological examination of plaintiff

BACKGROUND

This action arises out of motor vehicle accident that occurred on April 15, 2016 between Plaintiff Ramon Gallegos (“Plaintiff”) and Defendants Ryan Chien (“Chien”), Hertz Equipment Rental Corp. (“Hertz”), and Select Electric Inc. (“Select”). Plaintiff commenced this action on June 6, 2016. The operative Second Amended Complaint (“SAC”), filed September 20, 2017, causes of action for motor vehicle negligence and intentional infliction of emotional distress.

At issue before the Court is several discovery motions filed by the parties, including: (1) Plaintiff’s motion to compel further responses to form interrogatories 13.1 and 13.2 (“FROG”); (2) Plaintiff’s motion for protective order; (3) Chien and Select’s motion to compel the deposition of Plaintiff; and (4) Chien and Select’s motion to compel the neuropsychological examination of Plaintiff. The motions are each opposed.

The Court discusses each motion in turn.

DISCUSSION

A. Plaintiff’s Motion to Compel Further Responses to FROG 13.1 and 13.2

Plaintiff moves to compel further responses from Chien to FROG 13.1 and 13.2.

FROG 13.1 asks whether Chien or anyone acting on his behalf conducted surveillance of any individual involved in the incident or any party to this action and, if so, for each surveillance to: (a) state the name, address, and telephone number of the individual/party; the time, date, and place of the surveillance; and (c) the name, address, and telephone number of the individual who conducted the surveillance. FROG 13.2 asks whether a written report has been prepared on the surveillance and, if so, for each written report to state: (a) the title; (b) the date; (c) the name, address, and telephone number of the individual who prepared the report; and (d) the name, address, and telephone number of each person who has the original or a copy.

To both of these FROG, Chien objected that this information was equally accessible and violates the attorney-client privilege and attorney work product doctrine with respect to defense counsel’s trial strategy regarding tactical witness testimonial information and reflects impeachment strategies.

The Court finds that the information sought by Plaintiff does not implicate the attorney-client privilege. Plaintiff only seeks identifying information of who potential witnesses are and if there are surveillance footage and records that Chien and his counsel have. Plaintiff is thus seeking only identifying information of witnesses by way of these requests and is not seeking the actual content of the documents or surveillance footage. (Compare Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166 [dispute involving the actual footage].) The disclosure of names and addresses of potential witnesses is a routine and essential part of discovery. (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249-50.)

Furthermore, the Court finds that the attorney-client privilege and work product doctrine do not apply to the FROG requests. The attorney-client privilege is a privilege to refuse to disclose, and to prevent another form disclosing, a confidential communication between the client and the lawyer. (Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1521.) Here, the requests in the FROG do not appear to implicate the attorney-client privilege as the FROGs seek identifying information on who may have taken surveillance and when such surveillance occurred.

As for the attorney work product doctrine, this applies to “[a] writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (CCP §2018.030(a).) While the actual surveillance footage and the reports written (if any) may be covered by the work product doctrine,[1] the identifying information sought without disclosing any attorney-client communications or Chien’s counsel’s impressions, conclusions, opinions, or legal research or theories is still discoverable. This is not a situation where Plaintiff is seeking from Chien a list of witnesses he intends to call at the time of trial—which would violate the work product doctrine—but rather, Plaintiff is seeking a list of witnesses generally who may provide relevant information this action.

Accordingly, the motion to compel further responses to FROG 13.1 and 13.2 is granted. Chien is ordered to provide code compliant responses without objection within twenty (20) days of notice of this order.

Chien and his counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,110.00 to Plaintiff, by and through counsel, within twenty (20) days of notice of this order.

Chien’s evidentiary objections are sustained as to objection nos. 1-2, and overruled as to nos. 3-4.

B. Plaintiff’s Motion for Protective Order and Defendants’ Motion to Compel Plaintiff’s Deposition

“The defendant may serve a deposition notice without leave of court at any time after that defendant has been served or has appeared in the action, whichever occurs first.” (CCP §2025.210(a).) “An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.” (CCP §2025.270(a).)

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (CCP §2025.420(a).) On a motion and for good cause, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice. (CCP §2019.020(b).)

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (CCP §2025.450(a).)

Plaintiff moves for a protective order precluding Defendants from deposing Plaintiff until “such time” as certain new parties are brought into the action and have an opportunity to attend and participate in Plaintiff’s deposition. Plaintiff argues he seeks to prevent being deposed multiple times and thus will prevent him from being subjected to harassment, annoyance, and burden, particularly since Plaintiff believes that Defendant has commanded investigators to harass and stalk Plaintiff.

Chien and Select move to compel Plaintiff’s deposition on the basis that he failed to appear for his deposition five times (i.e., January 26, 2017, June 21, 2017, August 10, 2017, September 20, 2017, and October 17, 2017). Chien and Select argue that any allegations by Plaintiff that he is being stalked is not a ground for him to evade being deposed on the subject matter of this case.

Here, Defendants are within his rights as parties to the action to notice and conduct the deposition of Plaintiff. The fact that other parties are being added to this action and Plaintiff may possibly be deposed on multiple occasions, may amount to an “inconvenience,” but is not a ground to delay a properly noticed deposition. Furthermore, as stated in CCP §2025.010, parties to the action may each seek to depose a party in the action. By filing this action against multiple parties, the necessary reality is that Plaintiff may encounter some inconvenience in pursuing his claim.

The Court also does not find that Plaintiff has established good cause to establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice. While Plaintiff’s desire to be deposed once may be convenient to him, Plaintiff has not stated when he will have completed serving unnamed defendants. Plaintiff has also not addressed how delaying his deposition further to an unknown date is in the interests of justice. Moreover, any argument by Plaintiff that delaying his deposition on the basis that he was stalked by Defendants’ investigator is not a ground for delaying his deposition.

Based on the rules under the Civil Discovery Act, the Court finds that Chien and Select are entitled to take the deposition of Plaintiff on a properly noticed and mutually convenient date and time. The taking of Plaintiff’s deposition need not take place once all the unnamed third-parties/defendants have been named and served in the action.

Accordingly, Plaintiff’s motion for protective order is denied.

Defendants Chien and Select’s motion to compel the deposition of Plaintiff is granted. Plaintiff and his counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,110.00 to Defendants Chien and Select, by and through counsel, within twenty (20) days of notice of this order.

C. Defendants’ Motion to Compel the Neuropsychological Examination of Plaintiff

CCP §2032.310 provides that if any party desires to obtain discovery by a physical (other than as described in section 2032.210) or mental examination, the party shall obtain leave of court. The motion for examination must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty (if any) of the person(s) who will perform the examination. The motion must be accompanied by a meet and confer declaration. The court shall grant a motion upon good cause shown. (CCP §2032.320(a).)

Chien and Select move for an order compelling Plaintiff to submit to a neuropsychological examination with Kyle Boone, Ph.D., ABPP/ABCN, a clinical neuropsychologist. They argue that Plaintiff responded to FROG 6.2, claiming injuries for neck pain, cervical whiplash with strain and myospasm, left shoulder strain with tendinitis and low-grade impingement, back pain, headaches, blurry vision, memory loss, trouble concentrating, cognitive deficits, dizziness, depression, and lack of sleep due to pain. (Dao Decl., ¶2, Ex. A.) Thus, Defendants seek to investigate Plaintiff’s psychological and cognitive deficit claims.

Plaintiff opposes, arguing that the motion is procedurally defective because Defendants failed to specify the tests to be administers pursuant to CCP §2023.310(b) and the declaration is insufficient of Dr. Boone is insufficient.

The Court finds that Dr. Boone’s declaration sufficiently specifies the time, place, manner, conditions, scope, and nature of the examination, as well as his specialty and qualifications to perform the examination. The moving papers state that the mental/psychiatric IME is sought to take place on January 11, 2018 at 9:30 a.m.[2] with Dr. Boone at 24564 Hawthorne Boulevard, Suite 208, Torrance, CA 90505. (Mot. at p.5; Boone Decl., ¶10.) In his declaration, Dr. Boone estimates that the examination will take about 6 hours and that no part of the test will involve physical examination or invasive or painful procedures. (Boone Decl., ¶¶5, 9.) He states that the first part of the examination will involve history taking and observation, interviewing Plaintiff, eliciting a detailed account from Plaintiff of the onset and course of his neuropsychological problems, reviewing Plaintiff’s current emotional/mental/physical complaints. (Id., ¶¶5-6.) He states that the second part of the examination will consist of an administration of several standard, validated psychological and neuropsychological tests, that are listed in paragraph 8 of his declaration. (Id., ¶¶7-8.) Dr. Boone states that based on his understanding of the case, he believes it is necessary and sufficient to do a thorough evaluation of Plaintiff’s claims of memory loss, trouble concentrating, cognitive deficits, dizziness, and depression. (Id., ¶3.)

As Defendants have established good cause to compel Plaintiff to a mental examination, the motion is granted. In granting the motion, the Court takes into consideration Plaintiff’s request for reasonable limitations. The examination will not start before 9:00 a.m., is limited in time to 5 hours, and Plaintiff is entitled to take reasonable breaks and a lunch break. The examination and all tests to be administered will be performed by Dr. Boone only. Dr. Boone will not ask Plaintiff about the substance of his communications with his counsel that are protected by the attorney-client privilege. Audio recording of the examination may be taken. Defendants shall produce a copy of Dr. Boone’s written report to Plaintiff’s counsel no later than 30 days after the examination, including raw data and test results. Defendants are also agreeable to Dr. Boone not asking about Plaintiff’s sexual history, as he has not made a loss of consortium claim.

The parties’ request for sanctions is denied.

CONCLUSION AND ORDER

Plaintiff’s motion to compel further responses to FROG 13.1 and 13.2 is granted. Chien is ordered to provide code compliant responses without objection within twenty (20) days of notice of this order.

Plaintiff’s motion for protective order is denied. Defendants Chien and Select’s motion to compel the deposition of Plaintiff is granted.

Defendants Chien and Select’s motion to compel the neuropsychological examination of Plaintiff is granted. The examination is ordered to take place on a mutually agreeable date and time with Dr. Boone. The examination will be granted with the limitations described in more detail as discussed above.

Plaintiff and Defendants were each ordered to pay sanctions in the amount of $1,110.00 to the other party. As these sanction amounts cancel one another, no sanctions will ultimately be awarded as a result of these motions.

Each party is to provide notice of their respective motion’s order(s).

[1] The Court does not make an actual determination regarding whether the surveillance or documents are actually privileged or under the work product doctrine as that issue is not before the Court.

[2] The motion was originally set for hearing on January 10, 2018, but was continued by the Court to this date so that it could be heard with the other motions.