Cases


Allen v. Pitchess (1973), 36 Cal.App.3d 321

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
  • Discovery at issue: Requests for Admissions
  • Holding: Trial court properly added attorney’s fees as sanctions against the Plaintiff for denying requests for admissions in bad faith, where the facts denied were unquestionably of “substantial importance.”

Plaintiff instituted an action to obtain a temporary restraining order and injunction. Id. at 325. The court issued the temporary restraining order but required Plaintiff to post a bond for any damages sustained by third parties because of the temporary restraining order, should the court finally decide that Plaintiff was not entitled to it. Id. at 326. After the court rejected Plaintiff’s prayer for an injunction and dissolved the temporary restraining order, a third party damaged by the temporary restraining order brought a motion to recover on the bond. Id. The court granted the motion, and invoked Section 3287(b) to award interest including attorney’s fees running from the date Plaintiff commenced the action. Id. at 327.

Plaintiff, in responding to requests for admissions, denied facts upon lack of information and belief, where the facts denied were unquestionably of “substantial importance.” Id. at 331. Respondents undertook extensive investigation and discovery on the question asked on the request for admission and the trial court awarded respondents sanctions pursuant to subdivision Code Civ. Proc. § 2034(c) as reasonable expenses in proving facts of substantial important to the litigation denied without good reason. Id. On appeal, the plaintiff contended that the trial court erred in awarding respondents sanctions, pursuant to Code Civ. Proc. § 2033. Id. at 323.

The Appellate court found substantial evidence supported the conclusion that Plaintiff’s denial of requests for admission was without good reason. Plaintiff’s conduct in improperly resisting discovery conducted by respondents with respect to the denied facts and its false responses evidenced that Plaintiff was acting not for “good reason” but in bad faith. For all those reasons, the trial court’s award pursuant to Code Civ. Proc. § 2034(c) was affirmed.

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Allen v. Superior Court (1984) 151 Cal.App.3d 447

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
  • Discovery at issue: Expert Witness Testimony
  • Holding: The requested discovery was declined as it required medical expert to produce documents that may have been obtained through less intrusive means.

Plaintiff sued defendant for injuries sustained in an automobile accident. Id. at 449.  At the defendant’s request, plaintiff was examined by the defense’s expert doctor. Id. Plaintiff reviewed the deposition of the expert doctor and served him with a subpoena duces mecum requiring him to produce financial documents, including income and tax documents from working with other patients relating to “his practice for the defense and insurance companies over the last five years.” Id. Defendant moved for a protective order requesting that the expert doctor only bring the documents related to the plaintiff’s case.  Id. The plaintiff opposed the protective order, contending that the records were needed to show the doctor was biased and to prove “unfairness on the part of an expert witness who consistently and frequently testifies for the defense.” Id.  at 450. The trial court denied the protective order for most of the requested documents.

After balancing the expert doctor’s right to privacy against a litigant’s need to seek evidence of bias, the Court found that the trial court abused its discretion, holding that the plaintiff’s requested discovery was unnecessary for the declared purpose of showing the witness’s purported bias. Id. at 453.  The Court reasoned that the expert doctor has a reasonable right to privacy under Cal. Const. art. I, § 1; therefore, it was improper to order disclosure of the private financial affairs of non-parties without careful scrutiny of the needs of the parties. Id. at 450. The Court noted there were less intrusive means available to prove bias, i.e., through questioning at a deposition and that, although the plaintiff could prove bias by discovering what percentage of the expert’s practice involved defense medical examinations and the amount of compensation received from that work, plaintiff was not entitled to learn the details of the expert’s billing and accounting records for the purpose of showing bias. Id.

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Appleton v. Superior Court (1988) 206 Cal. App. 3d 632

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
  • Discovery at issue: Response to Request For Admissions
  • Holding:Responses to requests for admissions that are unverified are legally deficient and “tantamount to no responses at all.”

Petitioner served on real parties in interest a set of three RFAs. Real parties in interest objected and provided a single purported answer to all three requests, but provided a single purported answer to all three requests. Id. at 634.  Petitioner moved to have his requests deemed admitted pursuant to § 2033 (k) — the trial court granted the motion, but denied sanctions. Id.

Petitioner sought a writ of mandate directing respondent superior court to grant his request for sanctions. Id. at 633. Petitioner contended that under the new discovery act sanctions are mandatory upon the granting of a motion to have requests for admission deemed admitted. Id.   
The Court of Appeals agreed with petitioner and ordered the writ to be issued.  Id.  Under the new discovery act, the burden is on the propounding party to file a motion under CCP § 2033(k) to have requests deemed admitted and whenever an opponent fails to serve answers, the moving party is entitled to sanctions. Id. at 635.  The Court found that § 2033(k) is “clear language”, making “sanctions… mandatory.”  Id. at 636.

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Benge v. Superior Court (1982), 131 Cal.App.3d 336

(Case summary by Rachael T. Soule, JD)
  • Discovery at issue: Attorney-Client Privilege
  • Holding: Discussions that occurred during the course of a meeting involving members of a union and attorneys retained by the union were protected by the attorney-client privilege.

Union members at an industrial plant attended a meeting with two attorneys and a physician. Id. at 342. In the subsequent lawsuit by the workers for damages from lead poisoning, the court inferred confidential intent by those at the meeting because of the closed nature of the meeting, with only members of the plant in attendance. Id. at 347. The union members had gone to the meeting for the purpose of discussing their legal rights against the employer and others for job-related injuries. Id. The court maintained that the natural expectation of the members present at such a meeting, given possible retaliation by the employer, was that statements made would remain confidential. Id. at 348. The court found privileged communication made at a closed union meeting attended by union members, two attorneys whose law firm was under a retainer agreement to provide legal advice to both the union and its members, and possibly a doctor. Id. 247-348.

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Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806

(Case summary by Rachael T. Soule, JD)
  • Discovery at issue: Business Records Subpoena
  • Holding: A party can be compelled to produce records located in another state if they are under that party’s control.

Plaintiff sued defendant, his former employer (PriceWaterhouse, a national firm), to recover retirement benefits. Id. at 808. Before trial, the plaintiff served a Los Angeles partner of PriceWaterhouse with a subpoena duces tecum calling for the production of business records regarding retirement of 13 former PriceWaterhouse partners. Id. at 810. The trial court granted defendant’s motion to quash the subpoena. Id. The Court of Appeals reversed, rejecting defendant’s contentions that the subpoena violates California Rules of Court, rule 222, was never properly served since its custodian of records was in New York, and that the subpoena was “burdensome” and not relevant. Id.

On the contrary, the Court held that the subpoena sought material, which was sufficiently relevant so as to require obedience, that the subpoena did not violate a rule prohibiting discovery within 30 days of trial, and that service on the local partner of defendant, rather on the out-of-state custodian, was proper. Id. at 810-811. The Court continued “if a subpoena is served on a nonparty, and requires the personal appearance of a custodian not resident in California, other means must be resorted to secure the documents; but where the documents sought are in the presence of a party, over whom the trial court has personal jurisdiction, that party may be required, by service on it in California, to produce the documents wherever situated.” Id.

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Bonds v. Roy (1999) 20 Cal.App.4th 140

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
  • Discovery at issue: Expert Witness Declarations
  • Holding: A trail court may preclude an expert witness from testifying at trial on a subject whose general substance was not previously described in an expert witness declaration.

Plaintiff sued defendant for medical malpractice during surgery, contending defendant had negligently severed a major nerve in plaintiff’s right arm. Id. at 290. The defendant stated in his expert witness declaration that his expert would testify only on the issue of damages. Id.  At the expert’s deposition, the expert “specifically confirmed he did not expect to be giving any testimony or any opinion concerning the standard of care issues that might be involved in this case.” Id. At trial, the defense counsel sought to expand the scope of the expert’s testimony to include the applicable standard of care. Id.  The trial court denied the request on two grounds: first, the plaintiff had expected the expert to testify only as to damages and “because [the expert] was the last defense witness, there was not enough time to adjourn and take his deposition”; second, expanding the “scope of [the expert’s] testimony at that point would be unfair, prejudicial, and a surprise to [the plaintiff].” Id.

The Supreme Court affirmed, explaining “the statutory scheme as a whole envisions timely disclosure of the general substance of an expert’s expected testimony so that the parties may properly prepare for trial.” Id. at 294. This allows the parties to assess whether to take the expert’s deposition, to fully explore the relevant subject area at any such deposition, and to select an expert who can respond with a competing opinion on that subject area.” Id. at 146-147. Allowing new and unexpected testimony for the first time at trial so long as a party has submitted any expert witness declaration whatsoever is inconsistent with the purpose. Id. at 293. To expand the scope of an expert’s testimony beyond what is stated in the declaration, a party must successfully move for leave to amend the declaration under the Code of Civil Procedure Section 2034(k). Id. at 292.

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Borse v. Superior Court (1970) 7 Cal.App.3d 286

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
  • Discovery at issue: Interrogatories
  • Holding: Interrogatories seeking names of witnesses held to be unduly broad and burdensome, warranting judicial limitation

Plaintiff brought a Federal Employer’s Liability Act case against defendant Railroad Company.  The defendant raised the special defense of a release signed by the plaintiff. Id. at 288.  Plaintiff wanted to prove that his signature on the release was induced by false representations of defendant’s claims adjuster by providing supporting evidence through a search of other claimants that may have been similarly misled. Id.  Plaintiff submitted interrogatories on the defendant, requesting claims adjustor contact information and the names and addresses of all employees ever involved in settlement negotiations over a period of six years. Id. at 288. The defendant failed to respond to the interrogatories and the plaintiff moved an order to compel answers. Id. at 289.  The trial court held that the information was not privileged and did not constitute work-product; however, “wholly sustained an objection of burden and oppression”. Id.

The Court of Appeals affirmed the trial court’s opinion that the plaintiff’s discovery requests covering all claims negotiations over a six-year period were “excessive, burdensome, and oppressive”; however, noted that the trial court failed to comply with liberal discovery policies by denying discovery completely. Id. at 289.  The court stated that the plaintiff was entitled to limited discovery, i.e. similar discovery covering a narrower time span, otherwise plaintiff’s attorneys “might be deprived of all reasonable opportunity to corroborate plaintiff’s claims”. The court noted that  “where fraud is charged, evidence of other fraudulent representation of like character by the same parties at or near the same time is admissible to prove intent.” Id. The Court held that it is the trial court who retains the discretion to weigh the burden of compliance against the likelihood of producing helpful information, to avoid duplicative production, and to narrow demands appropriate to balance the reasonable concerns of both parties. Id.

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Brigante v. Huang(1993) 20 Cal. App. 4th 1569

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
  • Discovery at issue: Request for Admissions
  • Holding: The trial court has discretion to grant appropriate relief from RFA’s is (1) the court is satisfied that the defendant is not evading the lawsuit or the discovery demand and is unaware or their pendency, and (2) that reasonable efforts have been made and are ongoing to find her and apprise her of the litigation and the discovery obligations it entails.

Defendant was involved in a multi-car accident, and plaintiff filed a lawsuit against her for injuries sustained as a result of the accident. Id. at 1572.  No one – not the other party, attorney, or insurance agent – was able to locate defendant. Id. Defendant’s insurance agent appointed a law firm to represent Defendant’s interests. Id. at 1571. Plaintiff then sent a request for admissions to defendant to admit or deny the allegations of plaintiff’s complaint; however, no properly verified response was ever filed because defendant could not be found. Id. at 1572.  Plaintiff then applied for an order that RFAs be deemed admitted.  Id.  The court granted the motion and plaintiff’s motion for summary judgment was granted based on matters deemed admitted. Id.
The issue in this case was whether the trial court had discretion to do anything other than order that the matters in the RFAs be deemed admitted. Id.  at 1571. The Court of Appeal asserted that the trial court had discretion and errored in failing to exercise discretion when asked to do so. Id. at 1575. The Court of appeal found that when there is a showing that defendant is not evading the lawsuit or the discovery demand, and is truly unaware of the lawsuit against her, and reasonable efforts have been made to locate and inform the defendant of the litigation and her discovery obligations, the court indeed has discretion to issue a protective order under section 2033, subdivision (e). Id. at 1583.

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Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
  • Discovery at issue: Requests for Admission
  • Holding: If a party denies a request for admission of substantial importance, in circumstances where the party lacked personal knowledge but had available sources of information and failed to make a reasonable investigation to ascertain the facts, such failure will justify an award of expenses under § 2033.420.

A plaintiff truck-driver who was injured after his truck hit a tree, sued a bus driver and the bus driver’s employer, claiming the bus driver crossed over the centerline, forcing plaintiff to swerve and crash. Id. 505  Plaintiff contended that his actions avoided a head-on collision. Id. The defendants sought two pretrial requests for admission, both of which the plaintiff denied. Id. at 507.  Plaintiff had been rendered unconscious in the accident and thus, could not admit or deny the first RFA: that his truck was over the centerline, in the defendant’s lane. Id. Still, plaintiff had knowledge of the California Highway Patrol’s accident report stating the plaintiff’s vehicle was over the centerline, and had no other contrary evidence upon which to base his denial of the request. Id. at 512. Plaintiff’s counsel failed to make a reasonable inquiry about the conclusion in the Highway Patrol’s report and the plaintiff did not contest the issues at trial. Id. at 512-513.  The trial court awarded defendant’s expenses pursuant to California Code of Civil Procedure section 2034, subdivision (c), as their reasonable expenses of establishing proof of this fact denied and the plaintiff appealed, arguing the sanctions were improper . Id. at 508.

The Court of Appeal found that the trial court’s award of sanctions was both proper and mandated. Id. at 511. The Court noted that “the primary purpose of requests for admissions is to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial” Id. at 509.  The Court held that when a responding party has no personal knowledge of facts related to the request, that party has a duty to conduct reasonable investigation to ascertain the facts in lieu of simply denying the request, failing to do so will justify an award for sanctions. Id. at 510-511. The Court continued that under section 2033.420, like its predecessor statutes, an award of sanctions “is not a penalty” but is designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission where the admission sought was “ ‘of substantial importance’ [citation] such that trial would have been expedited or shortened if the request had been admitted.” Id.

Moreover, plaintiff denied an additional requested admission of fact that the bus was not in his lane when he first saw the bus’s headlights, a denial of which defendant sought reimbursement for costs to prove that fact. The Court agreed with the trial court’s decision to deny reimbursement because plaintiff’s denial was based on the existence of reasonable grounds: an eyewitness testimony. Id. 512-513. The Court held that the determination of whether “there were no good reasons for the denial,” whether the requested admission was “of substantial importance,” and the amount of expenses to be awarded, if any, are all within the sound discretion of the trial court. Id at 508.

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Bunnell v. Superior Court (1967) 254 Cal.App.2d 720

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
  • Discovery at issue: Interrogatories
  • Holding: Where the information sought is equally available to the propounder of the interrogatory, the burden and expense of any research which may be required should be borne by the party seeking the information.

Plaintiff sued defendant for defamation. Id. at 721. A new trial was granted in the first trial and the second trial was declared a mistrial. Id. In preparation of a third trial, defendant submitted interrogatories seeking detailed information concerning the identity of witnesses. Id. Plaintiff responded by referring to deposition transcripts and prior discovery responses as the source of the information. Id.  Defendant filed a motion to compel further answers regarding the interrogatories; however, the plaintiff maintained that the requested information had been given in previous depositions and trials and was available to both parties. Id. at 722. The trial court imposed sanctions against the plaintiffs for the failure to provide further responses to the interrogatories. Id. at 724.

The Court of Appeals concluded that the trial court abused its discretion in awarding sanctions and seeking further responses to the interrogatories since the information sought was in deposition and trial transcripts, which the propounding party had in its possession. Id. at 723. The Court maintained that information not in the responding party’s control, or equally available to the propounding party, need not be given. Id. The Court stated that, where research is required to answer an interrogatory, the burden of the research should be placed on the propounder of the interrogatory. Id. at 723-734. The Court held the plaintiffs had “substantial justification” for refusing to answer the requests and, therefore, an award for costs under section 2034, subdivision (a) cannot be made. Id.at 724.

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Burke v. Superior Court (1969) 71 Cal. 2d 276

(Case summary by Rachael T. Soule, J.D.)
  • Discovery at issue: Contention Interrogatories.
  • Holding: The liberal use of contention interrogatories should be allowed and encouraged.

Plaintiff filed an action against defendants for the sum of $95,000 plus interest claimed to be due on a promissory note. Id. at 278. Upon the issuance of a bond by defendant, plaintiff caused a writ of attachment to be issued and levied upon real estate owned by defendant. Id. Defendant won the underlying action. Id. Defendants/Petitioners then filed an action for wrongful attachment against the bonding company, of which the bonding company filed an unverified one-paragraph answer to petitioners’ complaint, denying all allegations of the complaint. Id. at 279.

In the action on the attachment bond, the bonding company defended against a claim for the expenses incurred in winning the underlying action, by claiming, through denials, that the attachment could have been dissolved without winning the case on its merits. The petitioners asked for an admission that the attachment was legal and valid on its face and that any motion to have it dissolved would not have been successful. Id. at 280. The trial court sustained the bonding company’s objection that the requests for admission called for legal opinion and conclusions. Id. Petitioners then propounded interrogatories asking for the bonding company’s contentions with respect to the validity of the attachment and to state all facts upon which it based its denial of all allegations of petitioner. Id. Objections that the interrogatories were ambiguous and called for legal opinions and conclusions were again sustained. Id. The petitioner then sought a writ of mandate to compel the trial court to vacate its orders that sustained the objections to petitioners’ requests for admissions.

The Supreme Court, in reversing the trial court’s refusal to compel responses to contention interrogatories, ruled, “when a party is served with a request for admission concerning a legal question properly raised in the pleadings he cannot object simply by asserting that the request calls for a conclusion of law.” Id. at 282. The Court granted petitioners’ request on the grounds that petitioners were using discovery, including interrogatories, to ascertain facts and to clarify contentions – an exercise that extends to all civil cases and that is “particularly important in a case such as this one involving the [bonding company’s] use of a type of general denial that has been justly condemned.” Id. at 282. “Discovery necessarily serves the function of ‘testing the pleadings,’ i.e., enabling a party to determine what his opponent’s contentions are and what facts he relies upon to support his contentions.” Id. at 181 (citations omitted). The Supreme Court held that “[t]o the extent that interrogatories are used to clarify the contentions of the parties, they are an adjunct to the pleadings, … Liberal use of interrogatories for the purpose of clarifying and narrowing the issues made by the pleadings should be permitted and encouraged by the courts.”  Id. (citations omitted).

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Calcor Space Facility, Inc. v. Sup.Ct. (1997) 53 Cal.App. 4th 216

(Case summary by Rachael T. Soule, JD)
  • Discovery at issue: Motion to compel the production of documents.
  • Holding: Under Cal. Civ. Proc. Code § 2020(d), the subpoena is required to describe the documents to be produced with reasonable particularity.

An action arose between two corporations based on plaintiff’s alleged failure to provide gun mounts according to contractual specifications. Id. at 219. Plaintiff sued Defendant alleging defendant failed to provide adequate engineering information, and Defendant then cross-complained, asserting Plaintiff was responsible for covering the increased costs. Id. The plaintiff filed a motion to compel a nonparty, the corporation with whom defendant entered into a contract after plaintiff’s alleged failure, to produce 32 categories of materials. Id. at 220. The subpoena did not identify any specific document, but merely described broad categories of documents and other materials. Id. at 219. In response to the subpoena served pursuant to Code Civ. Proc., § 2020, subd. (d), the nonparty filed a motion for a protective order; however, the trial court denied the protective order and granted the motion to compel. Id. at 220.

The Court of Appeal granted mandamus relief and found that the subpoena had been unduly burdensome to petitioner. Id. at 221. The Court found that both Code Civ. Proc., § 2020 (inspection demands on nonparties), and Code Civ. Proc., § 2031(inspection demands on parties), “require records sought to be produced be designated either by specifically describing each individual item or by reasonably particularizing each category of item.” Id. at 221-222.

The Court held the trial court erred in granting its order to compel the nonparty to produce the documents, serve a privilege log, and to serve responses, because the 32 requests imposed an unreasonable burden on the nonmoving party and no proof existed that the materials sought were reasonably calculated to lead to the discovery of admissible evidence. Id. at 222-223. In so doing, the court recognized that the discovery process is subject to frequent abuse, and that judges must become more aggressive in curbing the abuses. Id. at 221. The court held that “[i]n law and motion practice, factual evidence is supplied to the court by way of declarations” and since the documents submitted by the moving party alleging that there was good cause to order production were not verified, they did not constitute the evidence necessary to grant a motion to compel. Id. at 224.

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Carehouse Convalescent Hosp. v. Sup.Ct. (Sims) (2006) 143 Cal.App.4th 1558

(Case summary by Rachael T. Soule, JD)
  • Discovery at issue: Deposition of opposing counsel.
  • Holding: Depositions of opposing counsel are strictly restricted and require a showing of “extremely” good cause to overcome the presumption that they are improper.

Plaintiffs, relatives of a deceased hospital patient, sued defendant hospital for wrongful death and elder abuse. Id. at 1561. Following initial discovery focusing on alleged understaffing, plaintiffs brought a motion for permission to depose opposing counsel while the case was still pending (pre-trial) because they believed defense counsel had made independent decisions regarding the classification of certain employees of the hospital. Id. In response to plaintiffs’ motion, defendant’s counsel raised the attorney work product doctrine; however, the court granted plaintiff’s motion to compel discovery. Id. at 1561-62. Defendant then petitioned for a writ of mandate to challenge that order. Id. at 1562.

The Appellate Court noted “Depositions of opposing counsel are presumptively improper, severely restricted, and require `extremely’ good cause — a high standard” because, among other policy reasons, “attorney depositions… easily lend themselves to gamesmanship and abuse” and “serve as a potent tool to harass an opponent.” Id. (citations omitted). The Appellate Court applied California’s three-prong test, which considers the appropriateness of attorney depositions:

      1. Does the proponent have other practicable means to obtain the information?
      2. Is the information crucial to the preparation of the case?
      3. Is the information subject to a privilege? Id. at 1563.

The proponent has the burden of proof for the first two prongs; whereas, parties claiming the benefit of the work product rule have the burden for the third prong. Id. at 1563-64.

After applying the test, the court re-affirmed that “the adversarial system of justice presumes that the attorneys for each side oppose one another, not depose one another,” and plaintiffs failed to make requisite showing of “extremely” good cause to overcome that presumption. Id. at 1560. The court also found that plaintiffs could not seek testimony from opposing counsel because they failed to meet their initial burden of showing that the information sought could not be obtained from any “other practicable means”; however, as to the third prong, defendant showed that the information sought was protected work product under Code Civ. Proc., § 2018.030. Id. at 1564. The court granted the petition for peremptory writ of mandate and directed the trial court to vacate its prior order and to make a new order denying plaintiffs’ motion to compel and ordering that the attorney’s deposition not be taken. Id. at 1566-67.

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Carter v. Sup.Ct. (CSAA Inter–Insurance Bureau) (1990) 218 Cal.App.3d 994

(Case summary by Rachael T. Soule, JD)
  • Discovery at issue: Whether denial of inspection demand bars a litigant from seeking the same documents under a deposition notice served under section 2025.
  • Holding: Cal. Civ. Proc. Code § 2031(I) does not prescribe a waiver of a party’s right to use other discovery methods for obtaining the same documents or information.

Plaintiff sued defendant insurer for bad faith refusal to settle a claim. Id. at 996. Plaintiff served on defendant a demand for inspection of the complete claims file for the case; however, the defendant rejected the demand on attorney/client and attorney work product grounds. Id. Plaintiff then filed a motion to compel further responses. Id. The trial court denied the motion as untimely because plaintiff had filed beyond the 45-day limit set by section 2031, subdivision (1). Id. Plaintiff then requested that the insurer’s custodian of records bring with him to a deposition the complete claims file for the case. Id. The defendant moved for a protective order under the grounds that a litigant may not obtain through a second discovery request what has been lost by untimely prosecution of a first request. Id. The trial court granted the protective order and the plaintiff then petitioned the Court of Appeal for a writ of mandate to reverse the order. Id.

Defendants argued that the right to obtain the documents is forever waived when a party misses the deadline for compelling production of documents under section 2031, subdivision (I), thus plaintiff was barred from requesting those same documents under section 2025. Id. at 997. The plaintiff argued that the failure to meet a 45-day limit to bring a motion to compel “only does what the statue says, it causes a waiver of the right to compel further response ‘to the inspection demand.’ According to [plaintiff] the various discovery methods are independent and failure of one method does not bar use of another.” Id.

The Court of Appeals agreed with plaintiff, concluding “that the Legislature has provided two procedures for the same kind of discovery and that absent a finding of burden under section 2019, subdivision (b), or a similar section, failure of one does not bar use of the other.”  Id. at 996. The court continued, although section 2031, subsection (1) provides that a party who fails to bring a timely motion waives any right to compel a further response to the inspection demand, the party may nevertheless seek the same documents through a deposition notice served under section 2025. Id. at 997. The court then issued the peremptory writ of mandate directing the Superior Court to vacate its protective order and reconsider it’s ruling. Id. at 998.

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Cembrook v. Superior Court (1961) 56 Cal.2d 423

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
  • Discovery at issue: Requests for Admission
  • Holding:  A litigant is entitled to request admissions as a matter of right unless the opposing party successfully bears the burden of showing that they do not fall within the purview of the statute providing for such requests.

Plaintiff filed a complaint seeking damages for personal injuries against defendant, manufacturer of a drug, alleging to have been incurred by ingestion, over a long period of time, and in the manner recommended or suggested in defendant’s advertising, of their product. Id. at 426. Plaintiff served defendant a set of 12 requests for admissions regarding such matters as defendant’s knowledge of the harmful nature of its products; that it failed to warn of such harm; that plaintiff’s injuries were caused by the defendant’s product; and that plaintiff would require certain medical care as a result of the injuries. Id. at 427-428. Defendant moved to strike the requests on various grounds including that the requests were irrelevant to the subject matter of the action, were ambiguous, that they include matters that cannot be clearly admitted or denied and seek admissions of the truth of matters included in testimony on depositions previously taken. Id. at 428. The trial court granted defendant’s motion to strike “in toto”. Id. at 426.

In finding that the trial court abused its discretion in denying a motion to compel further responses, the Supreme Court found that “by objecting to the requests as a whole, without some attempt to admit or deny in part, and by making no attempt to answer with an explanation of its inability, it failed to show the ‘good faith’ required by the statute.” Id. at 430. The Court continued, explaining that requests for admissions are primarily aimed at settling a triable issue so that it will not have to be tried. Id. at 429. Therefore, “the fact that the request is for admission of [a] controversial matter, or one involving complex facts, or calls for an opinion, is of no moment.” Id.  If the litigant is able to make the admission, the time for making it is during discovery procedures, and not at the trial. Id. Even after acknowledging the “broad” nature of the requests, the Court noted that “some of the requests are obviously relevant and void of ambiguity. Id. at 427-428. If other reasons exists that make [defendant] unable to reply, [plaintiff] is entitled to a sworn statement from [defendant] setting forth those reasons in good faith.” Id. at 430.

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Chodos v. Superior Court of Los Angeles County, 215 Cal. App. 2d 318

(Case summary by Rachael T. Soule, JD)
  • Discovery at issue: Requests for Admission
  • Holding: In a request for admissions, a party without personal knowledge would be required to make a reasonable investigation to ascertain the facts when it affirmatively appeared that he had available to him sources of information as to the facts or matters involved.

Plaintiff property owners filed an action for an injunction and damages alleged to have been cause to their property as the result of a landslide caused by defendant neighbors. Id. at 320. The Plaintiff filed requests for admission pursuant to Cal. Civ. Proc. Code § 2033 seeking admission that the lot the defendants had created by filling a ravine “presents a greater probability of falling and sliding then it did before the landslide.” Id. at 321-22.

The defendants did not answer a majority of the requests claiming the requests “call[ed] for an expert opinion as to engineering practice” and, “as lay property owners,” they could not express an opinion. Id. at 322. The plaintiff then moved for an order to compel defendants to either admit or deny the unanswered requests. Id. at 321. The trial court granted the motion regarding certain requests but sustained the defendant’s objections to certain requests. Id.

The Appellate Court then granted plaintiffs’ petition for a writ of mandate to compel the trial court to set aside its order sustaining defendants’ objections. Id. at 324. The Court held that § 2033 required the defendants to set forth in detail the reasons why they could not truthfully admit or deny the matters involved. Id. at 322-23. The Court compared the duty owed when responding to interrogatories to the duty to conduct a reasonable investigation in responding to requests for admissions and found that the defendants’ reasons for not answering the requests were not tenable. Id. at 322.

The Court also found that requests for admissions are not limited to matters within personal knowledge of the responding party and, therefore, a party without personal knowledge has a duty to make a reasonable investigation to ascertain the facts when it affirmatively appeared that he had available to him sources of information as to the facts. Id. at 323. The Court further stated that if a party denies a request for admission in circumstances where the party had available sources of information and failed to make a reasonable investigation to ascertain the facts, such failure will justify an award of expenses. Id. at 324 (citing Haseltine v. Haseltine (1962) 203 Cal. App. 2d 48, 61). The court granted the peremptory writ sought by plaintiffs, vacated the trial court’s order, and directed the trial court to require defendants to respond to the requests by either admissions or denials. Id.

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City and County of S.F. v. Superior Court (1951) 37 Cal. 2d 227

(Case summary by Rachael T. Soule, JD)
  • Discovery at issue: Privileged Information
  • Holding: Where medical advice is required to interpret a client’s condition to his attorney, the information discovered upon a private examination of the client by a physician employed by the attorney falls within the scope of the rule protecting communications between attorney and client.

In a personal injury action, defendant deposed a physician who had evaluated the plaintiff’s injuries for the plaintiff’s attorneys. Id. at 231.  At the deposition, the physician claimed the physician-patient and attorney-client privileges when questioned about his evaluation of plaintiff’s condition. Id. Defendant sought a writ of mandamus to compel the physician to answer the questions. Id. The trial court denied defendant’s motion and the defendant petitioned for review of the trial court’s ruling. The Supreme Court held that  information conveyed by a physician to the lawyer for the plaintiff after examining the plaintiff at the lawyer’s request was protected by the attorney-client privilege; however, rejected physician’s contention that the physician-patient privilege was applicable. Id. at 234. The communication was protected because the information emanated from the client and the examination was merely a method of communicating it to the attorney; however, the court held that no physician-patient privilege existed since the plaintiff had placed his medical condition in issue. Id.  
“The whole purpose of the privilege is to preclude the humiliation of the plaintiff that might follow disclosure of his ailments. When the patient himself discloses these ailments by bringing an action in which they are in issue, there is no longer any reason for the privilege.” Id. at 232.  Because the doctor acted as an intermediate agent for communication between the claimant and his attorneys, the statements made by the claimant to the doctor were confidential and privileged. Id. at 236.

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City of Long Beach v. Superior Court (1976) 64 Cal. App. 3d 65

(Case summary by Rachael T. Soule, JD)
  • Discovery at issue: Work-Product Privilege
  • Holding: WDisclosure of a witness’s anticipated testimony at trial “clearly calls for production of a writing reflecting the attorney’s impressions, conclusions and opinions and thus falls within the absolute work product privilege.” Id. at 80.

Plaintiff in a negligent suit served an interrogatory requesting a list of all non-expert witnesses that his adversary intended to call at trial.  Id. at 67. Defendant objected claiming the work-product privilege. Plaintiff filed a motion to compel and the trial court ordered defendant “further answer fully and completely” the request. Id. at 68. A writ of mandate was granted by the Court of Appeals.  Id. at 69.
The Court of Appeal held that such a list was clearly protected as qualified work product: “[T]he complete list of trial witnesses sought in this case is a derivative product developed as a result of the initiative of counsel in preparing for trial. The forced revelation of this list would violate the work product doctrine because counsel’s decision in this respect is strategic; it necessarily reflects his evaluation of the strengths and weaknesses of his case.” Id. at 73. The Court explains that the decision to call or not to call a witness is made after consideration of the strengths and weaknesses of a case and the legal theory chose by the attorney. Id.

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Clement v. Alegre (2009) 177 Cal.App.4th 1277

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
      • Discovery at issue: Interrogatories
      • Holding: Interrogatories that reference other materials are only improper where the effect is to undermine the 35-rule limit for interrogatories.

Plaintiff sued defendant for specific performance and unspecified damages arising out of the sale of real property by plaintiffs to defendant. Defendant served special interrogatories, which plaintiff objected to on the grounds that they were “vague and ambiguous” and “not full and complete in itself.” Id.at 1282. Specifically, plaintiff objected to the term “economic damages” as vague and ambiguous, because the request did not specifically refer to Civil Code section 1431.2, which defines the term “economic damages.” Id. Furthermore, plaintiff objected certain interrogatories as not full and complete, because they requested explanations of previous interrogatory responses. Parties exchanged meet and confer letters, but plaintiffs did not withdraw their objections or supplement responses. Id. at 1287. Defendant filed a motion to compel further responses, to strike objections, and for monetary sanctions. The trial court granted the motion. Id. at 1284.

The Court of Appeal affirmed the motion, finding plaintiff’s objections without merit. The Court found that plaintiffs deliberately misconstrued the interrogatory regarding “economic damages,” and because plaintiff’s objection to the term “economic damages” was without substantial justification, sanctions were proper. Id. at 1286. The Court also held that referencing previous interrogatory responses in an interrogatory request did not violate the “full and complete in itself” requirement. Id. at 1287. Rather, interrogatories that reference other materials are only improper where the effect is to undermine the 35-rule limit for interrogatories. Id. at 1289.

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Cohen v. Superior Court (1976), 63 Cal.App.3d 184

(Case summary by Rachael Soule, JD)
      • Discovery at issue: Requests for Admissions.
      • Holding: A party is entitled to amend responses to requests for admissions pursuant to Code of Civil Procedure section 473 where justice so requires.

Plaintiff, an injured driver, filed a personal injury claim against defendant bar and codefendant, patron of the bar, claiming codefendant had consumed liquor in defendant’s bar and then struck plaintiff in a car. Id. at 185. The defendant served timely responses to plaintiff’s requests for admissions but supported its admissions and denials solely upon information and belief. Id. at 186. The trial court then declared the defendant’s responses ineffective because the defendant failed to verify the responses to requests for admission as required under local rule. Id. Defendant moved for relief on the basis of ignorance of the local rule and sought to amend his responses by providing an appropriate verification upon personal knowledge. Id. The trial court denied the motion under Cal. Civ. Proc. Code § 473 and all matters denied were deemed admitted by default. Id.

The Appellate Court allowed a writ of mandate to permit the answers pursuant to Cal. Civ. Proc. Code § 2033. Id. at 187. In determining that the trial court’s denial was in error, the Appellate Court first recognized “it is not true . . . that a denial for lack of information or belief is valueless.” Id. The Court noted, however, that the sanction, although specifically authorized by statute, was too severe in view of the fact that the “plaintiff is not prejudiced by petitioner’s denials.” Id. The Court reasoned that plaintiff was not prejudiced by permitting the amended answers because he had a remedy under Cal Civ. Proc. Code § 2034 (c) if it was later discovered that the amended answers were false. Id. It’s also important to note, the failure to serve competent responses was not a willful refusal to comply with discovery.

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Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611

(Case summary by Rachael T. Soule, JD)
      • Discovery at issue: Responses to request for admissions.
      • Holding: California Civil Procedure Code requirement is not only that the party respond to discovery, but also that the responses be complete and straightforward. A frivolous appeal warrants sanctions.

Plaintiff law firm filed a complaint against defendant clients alleging various causes of action for nonpayment of attorney fees. Id. at 1613. During discovery, plaintiff served defendants with form and special interrogatories, a demand for the production of documents, and requests for admissions. Id. at 1613-14. The defendants responded to the plaintiff’s contention interrogatories with stock answers that it was “compiling the information requested” and would provide more data when compilation was finished. Id. at 1614. The plaintiff objected to the evasive response and propounded other discovery requests, which defendants either ignored or objected to. Id. The trial court granted the plaintiff’s motion to compel and ordered defendants to produce the requested documents and further respond to interrogatories and requests for admissions by a set date. Id. The defendants “continued with their gamesmanship,” and failed to comply with the trial courts orders. Id. at 1613-15. The plaintiff then filed a motion to strike defendants’ answer, which the trial court granted for failure to cooperate with discovery and entered a default judgment in favor of plaintiff. Id. at 1615

The defendants appealed the decision of the trial court arguing, “that since this was their ‘first effort’ at drafting responses, the trial court should not have resorted to drastic sanctions of striking their answer.” Id. at 1618. The appellate court rejected that argument and affirmed the trial courts decision, holding the trial court had not abused its discretion by imposing such a severe sanction: “The point that defendants fail to acknowledge is that, while this may have been their first effort to respond, it was not plaintiff’s first effort at receiving straightforward responses. Defendants chose to ignore the many attempts, both formal and informal, made by plaintiff to secure fair responses from them. Accordingly, we find no abuse of discretion by the trial court.” Id. at 1618. The Court imposed sanctions against defendants and their attorneys for prosecuting a frivolous appeal by submitting briefs containing half-truths and raising meritless arguments. Id. at 1620-21.

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Costco Wholesale Corp. v. Superior Court (2009) 47 Cal. 4th 725

(Case summary by Rachael t. Soule, JD)
      • Discovery at issue: Attorney-Client Privilege
      • Holding: A court cannot require an in camera disclosure of privileged material in order to rule on a privilege claim.

An employer retained an attorney to provide legal advice regarding whether certain employees were exempt from California’s wage and overtime laws. Id. at 730. The attorney interviewed two managers working for the employer under the premise that the conversations would remain confidential. Id. The attorney wrote an opinion letter regarding the matter, which was then sought in a subsequent class action suit claiming Costco had misclassified some of its managers as exempt from the wage and overtime laws. Costco objected on grounds of attorney-client privilege and work product. Id. at 730-31. The trial court ordered a discovery referee, who produced a heavily redacted version that disclosed portions of the letter that included “factual information about various employees’ job responsibilities”. Id. at 731.
The California Supreme Court reversed, finding that the attorney-client privilege applies to a confidential communication “in its entirety, irrespective of the . . . content.” Id. at 731. The Supreme Court confirmed that California Evidence Code § 915(a) prohibits a court from ordering in camera review of information claimed to be privileged “in order to rule on the claim of privilege.” Id. at 739 [citations omitted]. The Court outlined the proper procedure for dealing with cases where a party seeks to obtain material that the possessor claims is subject to the attorney-client privilege. Id. at 733-36. First, the trial court must determine, based on an analysis of the facts surrounding the communication (but not the communication itself), if the communication was a confidential one between attorney and client. Id. at 734. Here, the Court held that the lawyer’s letter to her client was entirely covered by the attorney-client privilege, and that the Court could not require an in camera disclosure in order to rule on the privilege claim. Id. at 739.

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Coy v. Superior Court (1962) 58 Cal. 2d 210

(Case summary by Rachael t. Soule, JD)
          • Discovery at issue: Answers to Interrogatories.
          • Holding: Where interrogatories are sought, the party seeking them does not first have to establish good cause and the party required to respond to the interrogatories has the burden of showing facts supporting that the interrogatories were interposed for improper purposes.

In an action where the plaintiff was seeking punitive damages, plaintiff sought to amend his complaint to add damages for mental suffering while at the same time serve the defendants with a set of interrogatories. Id. at 214-215. Defendants objected to or failed to answer the bulk of the interrogatories stating they were irrelevant and immaterial to the case. Id. at 215. Plaintiff then served motions for orders requiring further response. Id. The trial court denied both plaintiffs’ motion to amend the complaint and the motion requiring further response. Id. The Supreme Court affirmed the trial court’s decision denying plaintiff’s motion to amend his complaint because there was no abuse of discretion; however, issued a writ of mandate directing the trial court to vacate orders denying plaintiff’s motions to require defendants to answer written interrogatories. Id.

First, the Court held that the defendants failed to comply with Cal. Civ. Proc. Code § 2030 by not objecting to some of the interrogatories. Id. at 216. Second, the Court found that defendant’s objections to interrogatories on the basis of irrelevancy and immateriality to the issues of the case were invalid because the test is based on relevancy of the subject matter. Id. at 217. The Court stated, “[a]n order denying a motion for further answer, if predicated solely on an invalid objection, must be deemed an abuse of discretion.” Id. Third, the Court held that the fact that some of the interrogatories were answered in depositions was “meaningless” because § 2030(b) “expressly permits the overlapping procedures” absent a showing of unjustness or inequity. Id. at 217-218.

Fourth, the Supreme Court discredits the defendant’s argument that one interrogatory referred to privileged communication, reasoning that the question only referred to the date the attorney-client relationship began, which was not protected by the attorney-client privilege. Id. at 219-220. Fifth, in response to the argument that the trial court’s orders should be upheld “because [plaintiff] failed to sustain the burden of proving that his interrogatories merited further answer,” the Supreme Court stated, “defendants here had the burden of showing facts from which the trial court might find that the interrogatories were interposed for improper purposes.” Id. at 220. “The statue does not require any showing of good cause for the serving and filing of interrogatories.” Id. at 221. Therefore, the burden of showing good cause does not exist in the case of interrogatories. Id. Sixth, the court rejected the defendant’s argument that discovery of defendant’s financial condition should be bifurcated until the issue of liability was resolved, the Supreme Court held that evidence of a defendant’s financial condition is admissible at trial for determining the amount that it is proper to award. Id. at 223. Based on the above arguments, the Supreme Court issued the writ of mandate ordering the trial court to require the defendants to answer plaintiff’s interrogatories because defendants had not provided sufficient objections to the questions. Id. at 225.

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Day v. Rosenthal (1985) 170 Cal.App.3d 1125

(Case summary by Rachael T. Soule, JD)
          • Discovery at issue: Expert Testimony.
          • Holding: Expert testimony is admissible to establish the elements of a cause of action for breach of fiduciary duty where the conduct is a matter beyond common knowledge.

Plaintiffs, a famous and wealthy couple, brought an action against defendant, their former attorney, for legal malpractice, breach of fiduciary duty, and fraud, claiming defendant attorney was reckless and embezzled monies through real estate transactions, tax filings, and subsequent tax court proceedings, hotel purchases, a bank bond transaction, and general investments. Id. at 1133. The evidence at trial established that the defendant attorney engaged in a chain of meritless litigation and business activities on behalf of his clients without disclosing that the activities were disadvantageous to the clients. Id. at 1135-1141. No expert testimony concerning the applicable standards of care was presented regarding the activities, with the exception of certain tax transactions. Id. at 1146-47 & n. 12. The plaintiffs obtained a judgment of over $25 million; however, the defendant appealed. Id. at 1133.

On appeal, the defendant argued the judgment had to be reversed because his negligence was not proven through expert testimony. Id. at 1144. In rejecting this argument, the Court of Appeals concluded that aside from the tax transactions, which involved specialized legal knowledge, expert opinion to prove the attorney’s negligence was not necessary. Id. at 1147. The court reasoned, an attorney’s duties to his client are conclusively established by the model rules, which the trial court was required to judicially notice: “[t]he standards governing an attorney’s ethical duties are conclusively established by the [California State Bar] Rules of Professional Conduct. They cannot be changed by expert testimony. If an expert testifies contrary to the Rules of Professional Conduct, the standards established by the rules govern and the expert testimony is disregarded.” Id. The defendant’s violation of those rules established his negligence even in the absence of expert testimony. Id. The trial court may allow expert testimony to establish the standard of care only when the standard of care is not a matter of common knowledge. Id. The court noted, “[a]n intentional failure to disclose is an actionable fraud in the presence of a fiduciary duty to disclose.” Id. at 1159. Based on the above argument, the Court of Appeals affirmed the decision of the trial court finding defendant attorney breached a fiduciary duty and committed legal malpractice as well as fraud.

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Demyer v. Costa Mesa Mobile Home States(1995) 36 Cal. App. 4th 393

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
          • Discovery at issue: Request for Admissions
          • Holding: CCP § 2033(k) gives parties a chance to cure for failure to respond to a request for admission and the statute could not be subverted by a shortening of the hearing date on the motion to deem maters admitted.

Defendants served on plaintiffs’ attorney a set of requests for admissions directed at each of the 30 plaintiffs, and plaintiffs’ counsel missed the deadline, apparently on the mistaken belief that there was no need to prepare responses. Id. at 397.  Defendant’s counsel then filed and served via mail a motion to deem the matters admitted. Id.  The discovery referee ordered that a hearing would be held in a shortened time frame. Id. at 397-98. Plaintiff filed the response to the requests for admissions after the hearing but within 20 days of the notice of the motion to deem matters admitted. Id. at 401. Thereafter, the trial court deemed the matters admitted, pursuant to CCP § 2033(k) “where the proposed responses are not submitted by the time of the hearing on the propounding party’s Motion for Order Establishing Admissions.” Id. at 398.

The Court of Appeals reversed the trial court’s decision holding that § 2033(k) functions as a substantive provision of law — acting as a time marker — insuring that before the devastating effects of failing to respond to a set of RFAs, the litigant will be afforded formal notice of the need to prepare responses and additional time to accomplish the task.  Id. at 400. The Court also found that the hearing contemplated in § 2033(k) does not entail a hearing on shortened time, and the appellants/plaintiffs managed to submit responses within 20 days of the notice of the motion to deem matters admitted. Id. at 402. Therefore the trial court had no choice but to deny the motion, and the resulting summary judgment should not have been granted. Id.

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Deyo v. Kilbourne (1978) 84 Cal.App.3d 771

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
          • Discovery at issue: Interrogatories
          • Holding: A discovery sanction may not place the party seeking discovery in a better position than it would have been in if the desire discovery had been provided and had been favorable.

Plaintiff-attorney sued a former client for unpaid fees. Id. at 777. Defendant, without retaining counsel, failed to respond, and plaintiff moved to strike defendant’s answer for failure to respond to the interrogatories. Id. at 778. The trial court denied the motion to strike, but ordered Defendant to respond to the interrogatories. Id. Defendant did so, but the responses were “clearly not fully responsive to the questions propounded.” Id. Plaintiff then filed a second motion to strike defendant’s answer, which the trial court granted. Id. Default judgment was entered against the defendant, who appealed. Id. at 779.

The Court of Appeal reversed the judgment, finding that the trial court had no jurisdiction to strike the defendant’s answer. Id. at 798. Instead, in response to plaintiff’s motion to compel, the trial court only had jurisdiction to direct defendant to file further responses to the interrogatories. Id. Furthermore, defendant complied with the court’s discovery order by responding to the interrogatories. Id. at 797. Therefore, the trial court could not issue sanctions for refusal to comply with the order. Id. at 798.

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Emerson Electric v. Superior Court (1997) 16 Cal. 4th 1101

(Case summary by Rachael T. Soule, JD)
      • Discovery at issue: Responses at a Deposition
      • Holding: A deponent could be required to give nonverbal responses at a videotaped deposition.

Plaintiff, sued defendant, a retail store and manufacturer, for injuries he suffered while using their product. Id. at 1104. During a videotaped deposition, defendant asked plaintiff to diagram the location of the saw and himself at the time of the injury; however, the plaintiff’s attorney instructed him not to answer because he could not be required to give a nonverbal response at a deposition. Id. at 1104-05. Defendant than moved for an order compelling plaintiff to provide the nonverbal testimony. Id. at 1105. The trial court denied the motion based on a Court of Appeals’ decision in Stermer v. Superior Court (1993) 20 Cal. App. 4th 777, holding that nonverbal responses cannot be compelled. Id. The Appellate Court affirmed the decision of the trial court and held that Cal. Civ. Proc. Code § 2025(o) included nonverbal and verbal responses at videotaped depositions, which may require “a physical demonstration or reenactment of an incident”. Id. at 1107 (citations omitted).

The Supreme Court affirmed the Court of Appeals decision and held that a deponent could be made to give a nonverbal response and that “the trial court may impose a sanction, including evidence preclusion, if a deponent refuses to comply with an order compelling that a nonverbal ‘answer’ be given.” Id. at 1104-12. Still, instead of granting the motion to compel itself, the Supreme Court acknowledged the trial court’s “wide discretion” to grant or deny discovery and remanded the case to “the superior court for a new hearing, so that it may exercise its discretion and make such further order as is appropriate.” Id. at 1107-13. The Supreme Court confirmed that the overriding policies of the Discovery Act of 1986 govern each individual statutory form of discovery. Id. at 1121-22. “The Civil Discovery Act of 1986 was enacted as a ‘comprehensive revision of the statutes governing discovery’ intended to ‘bring California law closer to the discovery provisions of the Federal Rules of Civil Procedure.” Id. at 1108.

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Fellows v. Superior Court (1980) 108 Cal. App. 3d 55

(Case summary by Rachael T. Soule, JD)
      • Discovery at issue: Work Product Privilege
      • Holding: The attorney’s work product privilege survives the termination of the litigation or matter in which the work product is prepared and may be claimed in subsequent litigation by a client whenever the attorney is not present to claim it.

Plaintiff retained an attorney to seek settlement of an uninsured motorist claim, which defendant insurance carrier refused to settle. Id. at 59. After the claim was determined in arbitration, Plaintiff’s attorney turned his file over to the plaintiff. Plaintiff then hired another attorney and sued Defendant for violating its duty of fair dealing by refusing to negotiate a good faith settlement in the underlying claim. IdThe Defendant filed a motion seeking disclosure of documents in plaintiff’s previous attorney’s file of which Plaintiff objected to, asserting the work product privilege. Id. at 60.  Defendant argued only the attorney could assert the work product rule because it belonged only to the attorney, citing Lohman v. Superior Court (1978) 81 Cal. App. 3d 90. Id. at 64. The trial court ordered the motion to compel disclosure to the Defendant under the premise that the attorney’s work product privilege automatically terminated at the conclusion of the original dispute and could not be asserted in subsequent litigation between Plaintiff and Defendant. Id. at 59-61.
The Court of Appeals held that the trial judge erred in ordering production of the documents. Id. at 62. Although the work product rule was recognized as belonging only to the attorney, the privilege survives the termination of litigation during which it was developed. Id. The Court maintained that, similar to the Evidence Code privileges which give persons other than the holder of the privilege the right to assert the privilege, the work product rule may be asserted by a client on behalf of a former attorney who is absent from the litigation. Id at 64-65. The Court pointed out that the work product privilege was created in the interest of the client as well as the attorney and simply “provides a basis for a judicial interpretation of Code of Civil Procedure section 2016 to permit a client to claim the attorney’s work-product privilege whenever the attorney is not present to claim it himself.” Id. at 64. In addition, the former attorney’s transmittal of the case file, containing privileged work product does not constitute a waiver by the holder because the disclosure is not to disinterested parties or third parties, but rather, is limited to the client “whose interest in nondisclosure is supported by the policy reasons which underline the creation of the privilege. CCP § 2016(g)” Id. at 66.

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Fireman’s Fund Ins. Co. v. Superior Court (2011), 196 Cal. App. 4th 1263

(Case summary by Rachael T. Soule, JD)
          • Discovery at issue: Attorney-client privilege
          • Holding: The attorney-client privilege is broad enough to protect confidential communications with another attorney in the same firm and with a non-attorney agent.

In a dispute regarding property damage claims made by the insured, the insured sought to depose the former counsel for the insurer about conversations the attorney had with another attorney of her firm regarding the case. Id. at 1272. The trial court ordered the former counsel to answer the questions. Id.

The court of appeal directed the trial court, on remand, to vacate its order and enter another order sustaining the objections to the deposition questions, except to part of a question involving a payment. Id. at 1282. The Court held that  “[w]hile most instances in which an assertion of the privilege is upheld involve communications between an attorney and client, the statutory language is not so narrow.” Id. at 1273. The Court explained that Evid. Code § 952 provides that a “confidential communication” remains confidential when it is disclosed “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.” Id
Third persons to whom the information (in this case, an attorney’s legal opinions) may be conveyed without destroying confidentiality include other attorneys in the law firm representing the client. “Indeed, Evidence Code section 954 emphasizes that the relationship between attorney and client exists between the client and all attorneys employed by the retained law corporation.” Id.  at 1274. Under Evid. Code § 952, legal opinions also may be shared with non-attorney agents retained by the attorney to assist with the client’s representation without losing their confidential status, because those agents fall into the category of “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”. Id. at 1274. In sum, the attorney-client privilege not limited to communications between an attorney and his or her client. Rather, it broad enough to cover communications related to a client’s matter or interests among and between multiple counsel (or other reasonably necessary parties) who are representing the client. Id. at 1275.

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Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438

(Case summary by Rachael T. Soule, JD)
          • Discovery at issue: Answers to Interrogatories
          • Holding: Sanctions were not justified because the original answers were not without substantial justification and defendant had not willfully failed to answer.

Plaintiff, an employee of defendant manufacturing company, sued defendant for an injury he sustained while using a machine. Id. at 441. Defendant filed affidavits and answered interrogatories admitting it built the machine. Id. Then, 18 months later defendant discovered that the machine was manufactured by a third party and filed (1) a leave to file supplemental responses to interrogatories to correct its previously given answers or (2) relief under Code of Civil Procedure Section 473. Id. The plaintiff believed that the defendant’s mistake was intentional and filed a motion for sanctions. Id. The trial court found in favor of the plaintiff and ordered defendant to pay $15,000 in attorneys’ fees. Id. at 442.

On appeal, the defendant contended that the imposition of attorneys’ fees was incorrect, because it had an affirmative duty to amend answers to interrogatories. Id. The defendant also argued that even if the relief under Cal. Civ. Proc. Code § 473 was correct, it cannot be unconditionally ordered to pay the fees and the fees were excessive. Id. The Appellate Court agreed, holding “a party wishing to amend its answers to interrogatories need only serve the corrected answers on the proponent. If the contents are relevant, as they were here, to a motion for summary judgment, a party may lodge the responses with the court in conjunction with a motion to file them pursuant to section 2030, subdivision (b).” Id. at 444. The Court held that “[a] willfully false answer to an interrogatory must be treated as the equivalent of no answer at all” for purposes of section 2030. Id. at 446 The original noncompliance of the defendant in this case was not “without substantial justification” and the defendant had not “willfully fail[ed]” to to answer and therefore defendant’s amended answers were permitted and could be relied upon to support defendant motion for summary judgment. Id.

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Hillman v. Stuits, (1968) 263 Cal. App. 2d 848

(Case summary by Rachael T. Soule, JD)
          • Discovery at issue: Requests for Admissions
          • Holding: Sanctions are appropriate when a party improperly resists discovery by wrongfully denying facts; however, 2034 does not provide for penalties, but for reimbursement of expenses for going to trial as a result of the unjustified denials.

Plaintiff, a former prisoner, transferred and conveyed in trust, real and personal property, to his sister at the time of his incarceration. Id. at 859-60. The sister was dead and consequently, the property in trust was substituted through her husband who became the administrator and the defendant in this case. Id. at 860. Plaintiff brought an action to establish the existence of the trust and require an accounting and therefore, during discovery, plaintiff propounded requests for admissions concerning the genuineness of certain documents, e.g. the initial trust letter allegedly signed by his sister. Id. at 862. The defendant denied the genuineness of the documents and argued that: a trust was never created; the trust violated the statute of frauds; the trust letter was never delivered by the sister to plaintiff; the plaintiff lacked the capacity to create any trust because of his conviction and sentence to life imprisonment; the plaintiff’s civil rights could not be restored to any degree; and, if a trust had been created, the defendant should have been compensated for his services. Id. at 863. Plaintiff prevailed and under former Code Civ. Proc. § 2034(c) (now Code Civ. Proc. § 2033.420), he was able to recover the costs of proof of matters that defendant had wrongfully denied. Id. The trial court noted that the unjustified denials were part of a continuing course of conduct by defendants to delay the course of the litigation and to force plaintiff to settle. Id. Defendant appealed.

The Appellate Court affirmed, stating that “[w]hile the Adult Authority has control over the person of the inmate, his outside property does not come within its supervision or control,” because “the Penal Code provides that no conviction results in a forfeiture of property except when expressly imposed by law.” Id. at 873. The Court also held that sanctions were appropriate because defendant’s denials were dilatory and evasive and resulted in both an obstruction of justice and a depletion of the trust property; however, the Court found that the sanctions imposed were excessive. Id. at 883-885. Former Code Civ. Proc. § 2034 does not provide for penalties, but for reimbursement of expenses for going to trial as a result of the unfounded and unjustified denials. Id. at 884.

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Holguin v. Superior Court, (1972) 22 Cal. App. 3d 812

(Case summary by Rachael T. Soule, JD)
          • Discovery at issue: Requests for Admissions
          • Holding: A court cannot force a litigant to admit any particular fact that have clearly been denied if he is willing to risk a perjury prosecution or financial sanctions.

Plaintiffs, husband and children, filed a suit against defendant doctors for wrongful death of the wife and mother of plaintiffs during childbirth. Id. at 815. Plaintiffs filed a variety of interrogatories, which were answered promptly. Id. The plaintiffs then served defendant doctors with requests to admit certain facts regarding various medical matters; however, defendants denied all the requests. Id. at 815-816. The plaintiffs then filed multiple motions for an order compelling further answers to the requests or deem them admitted. Id. at 816-817. Some of the requests were identical to ones already filed. Id. at 817. The defendant admitted a few; however, denied a majority of them. Id. The plaintiffs then filed interrogatories asking whether the denials were true arguing that certain matters that defendant had denied were so unquestionably true that they could not be denied. Id. at 820. The trial court denied plaintiffs’ motion and plaintiff then filed a petition for writ of mandate to compel reversal of the trial court’s order. Id. at 816.

The Appellate Court denied the petition reasoning that plaintiffs were not entitled to different answers just because they felt the answers were not true. Id. at 821. They also held that defendant was not required to conduct an investigation in order to obtain information to respond to the interrogatories. Id. The Court opined that a litigant cannot be forced to admit any particular fact if that litigant is willing to risk financial sanctions or a perjury prosecution. Id. at 820-822.

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Hooser v. Superior Court (2000) 84 Cal. App. 4th 997

(Case summary by Rachael T. Soule, JD)
          • Discovery at issue: Attorney-client privilege vs. privacy rights
          • Holding: Information not protected by statutory privilege may nonetheless be shielded from discovery, despite its relevance, where its disclosure would invade an individual’s right to privacy.

Plaintiff sued his attorney, defendant, for misappropriation of funds. Id. at 344. The court entered a judgment in Plaintiff’s favor. Id.  To collect the judgment, Plaintiff served Defendant with an order to appear for a judgment debtor’s examination and a subpoena duces tecum seeking for the defendant to provide the judgment creditor with the names, addresses and telephone numbers of his current clients, a list of his current claims and cases, and bank statements related to his attorney-client trust account. Id.  Defendant filed a motion to quash the subpoena duces tecum on the ground that it sought discovery of matters protected by the attorney-client privilege and his clients’ rights of privacy. Id. The trial court denied the motion and Defendant filed a petition for writ of mandate. Id.

The Court of Appeals noted that “[g]enerally, the identity of an attorney’s client is not within the protection of the attorney-client privilege.” Id. at 347 [citations omitted] As the attorney made no argument that a recognized exception to this rule applied in his case, the court concluded that the attorney-client privilege did not apply. Id.

Still, the Court concluded that, based on the clients’ privacy interests, Defendant could not have been compelled to disclose the identities of clients whose relationship with the attorney has not been disclosed to third parties, or client specific information regarding funds held by the attorney in a client trust account.Id. at 348-349. The “identity of an attorney’s clients is sensitive personal information that implicates the client’s’ right of privacy.” Id. at 347. The trial court was directed to modify its order granting in part and denying Defendant’s motion to quash that sought the discovery regarding the names of undisclosed clients and that Defendant may redact any client-specific information set forth from bank statements relating to client trust account(s) maintained by him. Id. at 350.

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Jones v. Moore (2000) 80 Cal.App.4th 557

(Case summary by Rachael T. Soule, JD)
          • Discovery at issue: Expert Testimony
          • Holding: A trial court may properly exclude expert witness testimony to the extent that the testimony goes beyond opinions sought but not stated at the expert’s deposition.

Plaintiff brought a legal malpractice suit against defendant, her former attorney. Id. at 559-560. During the plaintiff’s expert’s deposition, the expert testified that defendant’s conduct fell below the standard of care during a certain period of time when he negotiated the plaintiff’s underlying divorce settlement. Id. at 562. The expert affirmatively stated that those were the only opinions he would offer at trial regarding the defendant’s duty toward plaintiff. Id. at 565. The trial court then limited the trial testimony of the plaintiff’s expert witness, excluding any testimony regarding other conduct by the defendant after the time frame addressed in the expert’s deposition. Id. a 564. At trial, the plaintiff sought to elicit expert testimony from her expert regarding defendant’s conduct for a task unrelated to negotiating the underlying divorce settlement. Id. The defendant objected, arguing the question called for an opinion beyond the scope of the expert’s deposition testimony and the trial court sustained the objection and the jury found that the defendant was not negligent. Id. The plaintiff then appealed, contending the trial court erred in excluding the testimony of her expert and in permitting defendant’s expert witness to testify as to matters beyond the scope of defendant’s expert witness declaration. Id. at 561.

The Court of Appeal affirmed the trial courts decision, holding, that “[w]hen an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to offer additional opinions at trial.” Id. at 564-565. The Court of Appeal also held that the trial court did not abuse its discretion in permitting defendant’s expert to testify because the defendant’s expert witness declaration was sufficiently broad to permit such an opinion. Id. at 566.

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Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
          • Discovery at issue: Discovery Sanctions
          • Holding: In choosing among its various options for imposing a discovery sanction, a trial court exercises discretion, subject to reversal only for manifest abuse exceeding the bounds of reason.

Plaintiff, a former boy scout, filed suit against the Boy Scouts and the church where scout meetings were held for alleged sexual molestation by a scoutmaster. Id. at 384. Plaintiff failed to adequately respond to numerous interrogatories and document requests. Id. at 385-386. The responses consisted solely of “objections, nonspecific incorporations of other information, and a long ephemeral statement simply reiterating the allegations made in the complaint.” Id. at 387. The trial court granted a motion to compel responses, including monetary sanctions. Id. Plaintiff filed additional responses that added no new information, and the court granted a second motion to compel. Id. Plaintiff filed a third set of responses, which were substantively identical to the previous responses. Id. at 388. In response, the trial court entered evidence and issue preclusion sanctions for failure to comply with the court’s previous orders. Id.

On appeal, the Court of Appeal upheld the sanctions. The Court maintained that the purpose of discovery rules is to “enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise.” Id. at 389. The Court found that plaintiff deliberately engaged in uncooperative and obstructive tactics to conceal the facts behind plaintiff’s allegations. Id. at 390. Furthermore, “[T]he appropriate sanction when a party repeatedly and willfully fails to provide certain evidence to the opposing party as required by the discovery rules is preclusion of that evidence from the trial—even if such a sanction proves determinative in terminating plaintiff’s case.” Id.

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Kayne v. The Grande Holdings Limited (2011) 198 Cal. App. 4th 1470

(Case summary by Rachael T. Soule, JD)
          • Discovery at issue: Request for Production of Documents
          • Holding: Sanctions justified where defendant failed to explain disorganized condition of documents it produced.

Plaintiff investors’ demanded the production of documents prepared in the course of business by defendant holding company in a securities fraud action. Id. at 1472. Defendant produced plastic garbage bags stuffed with thousands of pages of financial records, including 5,000 pages of partial computerized general ledger records “in complete disorder.” Id. at 1473. Defendant refused plaintiffs’ request to label and organize the documents in accordance with Code Civ. Proc. § 2031.280(a). Id. Plaintiffs then hired additional attorneys to organize the documents and filed a motion for sanctions in the sum of $74,809 – the costs they incurred organizing the documents. Id.

Defendant asserted that it had found the documents in the same disordered condition they had produced them and thus, complied with Code Civ. Proc. § 2031.280(a), which states documents can “be produced as they are kept.” Id. at 1473. Defendant even offered two declarations of employees to provide evidence of the documents disorder; however, the declarations did not reflect first-hand knowledge of how the documents were kept in the usual course of business nor the condition in which they were found. Id. The trial court granted plaintiffs’ sanctions motion for defendants’ willful abuse of discovery procedure and failure to comply with Code Civ. Proc §§ 2023.010, 2031.320, 2023,030. Id. at 1474. Defendant appealed the trial court’s judgment; however, the Court of Appeals affirmed the sanctions holding that the trial court acted within its discretion. Id. at 1475. The Court found that the defendants did not provide evidence nor explanation for the disorganized condition of the documents and therefore, the defendant was responsible for the disordered condition of the documents. Id at 1475-76.

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Kennemer v. State of California (1982) 133 Cal.App.3d 907

(Case summary by Rachael T. Soule, JD)
          • Discovery at issue: Expert Testimony
          • Holding: A party must “disclose the substance of the facts and the opinions to which the expert will testify, either in his witness exchange list, or in his deposition, or both.”

Plaintiffs, husband and wife, sued defendant state in an automobile personal injury action, after plaintiff wife was badly injured when the car she was driving crashed on a state highway in icy conditions. Id. at 911. A defense accident reconstruction expert testified, basing his opinion on tire tracks on the road, that the accident was caused when plaintiff steered her car to the left across the centerline into the path of another vehicle. Id. at 912. Plaintiff then sought to call an expert at trial to rebut the defense testimony and offered an opinion regarding accident reconstruction relating to the highway conditions. Id. In three pre-trial depositions, however, the plaintiff’s expert had consistently limited his testimony to the condition of the vehicle as a cause of the accident, claiming he had no opinions regarding roadway issues. Id. at 912-913. The trial court precluded the expert testimony finding that Cal. Civ. Proc. Code § 2037.5 prohibited use of an expert witness, except for purposes of “impeachment,” when a party failed under Cal. Civ. Proc. Code § 2037.3 accurately to disclose the general substance of the expert’s testimony. Id. at 915-17.

The plaintiffs appealed. The Court of Appeal affirmed, holding a party must disclose the substance of the facts and the opinions to which the expert will testify, either in his witness exchange list, or in his deposition, or both. Id. at 918-119. The Court also held that ‘impeachment’ under § 2037.5, had to be construed narrowly and therefore, plaintiff’s expert’s “impeachment” testimony could not be allowed to go into the realm of general rebuttal. Id. at 921-22. Because plaintiffs did not offer their expert for deposition by defendant on the subject of the rebuttal testimony, the trial court’s ruling was without error. Id. at 926.

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 Lieb v. Superior Court (1962) 199 Cal.App.2d 364

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
          • Discovery at issue: Request for Admissions
          • Holding: The requests for admissions asked for matters that the plaintiff could admit, deny, or explain and thus the trial court erred in sustaining plaintiff’s objections to RFA.

Defendant and Plaintiff are competing claimants to an interest in real estate. Id. at 366. Defendant propounded admissions to the plaintiff as to title of the disputed real estate and the plaintiff objected to certain requests on the grounds that they required him to make a conclusion of law. Id. at 366-67. The trial court sustained the objections, and the Defendant sought a writ of mandamus. Id. at 367. The writ was granted. Id.

The Appellate Court noted that the objective for a request for admissions is to obtain admission of uncontroverted facts learned through other discovery methods, and thereby to narrow the issues and save the time and expense of preparing for unnecessary proof. Id. The Court held that by objecting to the request as a whole, without some attempt to admit or deny in part, and by having made no attempt to answer with an explanation of its inability, the plaintiff failed to show the “good faith” required by Cal. Civ. Proc. Code § 2033 to have allowed the objection. Id. at 368-69. The requests clearly had asked for matters that the plaintiff could admit, deny, or explain and thus the trial court erred in sustaining objections to the request. Id. at 369.

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 Lindgreen v. Superior Court (1965), 237 Cal.App.2d 743

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
          • Discovery at issue: Request for Admissions
          • Holding: In certain burdensome circumstances, a responding party is not required to investigate.

In a Divorce action, the plaintiff husband deposed a third party who gave a deposition damaging to the wife defendant. Id. at 744. The defendant then filed a request for admissions asking plaintiff to admit that certain statements in the deposition were false, in order to discredit the deponent, but the plaintiff claimed he was unable to answer because he had “no way of knowing”. Id. at 745 Defendant moved to strike the response or to require further answers claiming the plaintiff could investigate to find the answers. Id.

The court noted that the plaintiff’s disclaimer of knowledge regarding the admission was not limited to lack of personal knowledge, and, consequently, not subject to an inference that the husband had knowledge or information from other sources. Id. at 746. The husband expressly stated he had no means of ascertaining the information requested. Id. at 747. The Court also noted that no facts appeared in the record that cast serious doubt on the plaintiff’s disclaimer of knowledge and of means of knowledge. Id.

The Court held that the plaintiff had no obligation to conduct an investigation at his own expense in order to admit or deny the veracity of a third party’s testimony. Id. at 748. Based on these circumstances, the trial court should have accepted petitioner’s sworn statement of reasons why he could not truthfully admit or deny the admissions. Id. A writ of mandate was issued directing the superior court to vacate its order striking the plaintiff’s response to the request for admissions and denying the defendant’s motion to compel further answers. Id.

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Lipton v. Superior Court (1996) 48 Cal.App.4th 1599

(Case summary by Rachael T. Soule, JD)
          • Discovery at issue: Production of Records Relating to Liability Reserves
          • Holding: Liability reserves are subject to the same relevancy standard for discovery as other information.

Plaintiff, an insured attorney, brought a bad faith suit against defendant, a professional liability insurer, alleging that the defendant’s actions with respect to the handling of the defense amounted to a breach of the implied covenant of good faith. Id. at 1605 -07. Plaintiff sought discovery of documents regarding defendant’s reinsurance records and records relating to liability reserves. Id. at 1605. The defendant contended not only were the documents not likely to lead to the discovery of admissible evidence, but were subject to several privileges. Id. at 1608. The trial court denied the discovery. Id. at 1611. Plaintiff then sought review by petition for a writ of mandate. Id.

The Court of Appeals concluded that the trial court erred in denying the plaintiff any discovery as to the requested reserve and reinsurance documents. Id. at 1616. The Court held, at least for purposes of discovery Code Civ. Proc. § 2017(a), loss reserve information cannot be deemed, a priori, irrelevant because such information may well lead to the discovery of evidence admissible on the issues raised by the plaintiff in his bad faith action against the insurer. Id. at 1605. The Court explained, for discovery purposes, information is relevant if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.” Id. at 1611 (citations omitted). “Admissibility is not the test and information, unless privileged, is discoverable if it might lead to the discovery of admissible evidence.” Id. at 1611-12 (citations omitted). The Court further expressed that, determining whether reserves are discoverable is a “question of relevancy which [is] related to the trial and the admissibility of evidence.” Id. at 1614. The Court directed the trial court to re-conduct an in camera review of each item sought separately in order to determine whether it was relevant or would lead to relevant information. Id. at 1620.

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Lohman v. Superior Court(1978) 81 Cal. App. 3d 90

(Case summary by Rachael T. Soule, JD)
      • Discovery at issue: Work-Product Privilege
      • Holding: Attorney-client privilege is not waived by plaintiff by testifying to communications about her prior attorney regarding the lawsuit; however, the attorney, as the exclusive holder of the work product privilege, can waive the privilege and the plaintiff cannot object.

Plaintiff had been placed in temporary conservatorship and thereafter sued the conservator and her attorney who represented him. Id. at 93. Plaintiff subpoenaed records from several of her former attorneys regarding their representation in the action against the conservator. Id. at 94. The Defendants sought to depose Plaintiff’s former attorney to question him about his opinions formed while representing plaintiff and the communications plaintiff testified about. Plaintiff objected, asserting both the attorney-client and work-product privileges. Id. at 93. The deponent-attorney testified anyway.  The Defendant argued that the privilege protected the content of the communication between attorney and client, and once a significant part of that content had been voluntarily disclosed – by plaintiff issuing the subpoenas and testifying about the communications herself- the content could no longer be protected against disclosure. Id. at 95.
The Court disagreed with Defendant’s argument, holding that “it is not the content of the communication but the relationship that must be preserved and enhanced” by the existence of a privilege.” Id. at 97. The Court instead held that the attorney’s work product privilege belongs to the attorney. As holder of the privilege, if the attorney is willing to waive the privilege, the former client can not validly assert the privilege or object to the attorney’s waiver to prevent the attorney from so testifying. Id. at 95. The Court maintains that “it appears that the whole thrust of the work product privilege was to provide a qualified privilege for the attorney preparing a case for trial and protecting the fruits of his labor from discovery.” Id. at 101 [fn. omitted].

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London v. Dri-Honing Corp.(2004) 117 Cal. App. 4th 999

(Case summary by Rachael T. Soule, JD)
      • Discovery at issue: Timing of Monetary Discovery Sanctions
      • Holding: A motion for discovery sanctions may be filed at a later time than a motion to compel responses.

The plaintiff in this case moved for a motion to compel further responses to an inspection demand after the defendant refused to produce documents. Id. at 1002.  The defendant chose to accept an evidentiary limitation rather than to comply, so the trial court asked the plaintiff to document the fees and costs incurred in litigating the motion so the court could impose a discovery sanction under former Code of Civil Procedure section 2031, subdivision (m).  Id.  The court thereafter imposed a monetary discovery sanction.  Id.

Defendant claimed on appeal that since a motion to compel further response under section 2031, subdivision (m), must be made within a 45-day time limit, the movant’s request for monetary sanctions regarding that motion must also be made within that time frame.  Id. at 1004.  The Court of Appeal rejected the argument and determined that “a motion for discovery monetary sanctions may be made after an underlying motion to compel further response to an inspection demand is litigated.”  Id. at 1001.
The court noted that while “a motion for monetary sanctions may be filed separately from a motion to compel further response under section 2031”, timeliness is still of importance and is “subject to the trial court’s discretion. Id at 1008-09.

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Maldonado v. Sup.Ct. (ICG Telecom Group, Inc.) (2002) 94 Cal.App.4th 1390

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
          • Discovery at issue: Deposition of “the persons most knowledgeable”
          • Holding: Discovery sanctions are permissible only when a party violates a specific discovery order or the court finds a party repeatedly and willfully refused to produce documents.

In a wrongful termination of employment action, plaintiffs former employees, sent deposition notices to the defendant, former employer, seeking to depose “the person or persons most knowledgeable” on a variety of subject described in the deposition notice and to have those persons bring with them certain documents. Id. 1392. Defendant sent persons to the depositions who knew very little about the designated subjects and did not bring the designated documents. Id. at 1393-94.

Plaintiff than brought a motion to compel further deposition responses from new corporate representatives actually knowledgeable about the subjects. Id. at 1394. The trial court denied plaintiff’s motion to compel, so plaintiff sought a writ of mandate. Id. at 1395

The Court of Appeal issued the writ directing the trial court to grant plaintiffs’ motion to compel. Id. at 1399-1400. The Court pointed out that, as to the persons most knowledgeable, Code Civ. Proc § 2025, subd. (d)(6) (now Code Civ. Proc. § 2025.30) applies only to those “currently in [the company’s] employ”; however, the defendant should have been ordered to bring its deponents back with proof that they had undertaken some effort to familiarize themselves with the areas of their supposed “knowledge.” Id. at 1298. The Court concluded that even if the “most knowledgeable” persons were no longer with the company that was not an excuse for not producing the requesting documents. Id. The Court also noted that discovery sanctions are permissible only when a party violates a specific discovery order or the court finds a party repeatedly and willfully refused to produce documents, neither of which was shown in this case. Id. 1398-99.

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Miller v. Metzinger (1979) 91 Cal. App. 3d 31

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
          • Discovery at issue: Attorney-Client Relationship
          • Holding: When a party seeking legal advice consults an attorney at law and secures that advice, the relationship of attorney and client is established prima facie.

Plaintiff consulted with Defendant attorney for the purpose of filing a wrongful death action. Id. at 33. Defendant had decided that he could not take the case because he did not have sufficient expertise handling such matters, and he referred plaintiff to another law firm. Id. at 33-34. When Plaintiff’s suit was barred by the statute, she brought a negligence suit against Defendant for malpractice claiming Defendant failed to warn her of the approaching SOL. Id.  The trial court granted Defendant’s summary judgment motion, finding no attorney-client relationship existed. Id. at 38.


The Court of Appeal reversed Defendant’s summary judgment finding that issues of fact remained as to whether an attorney-client relationship was established and as to the duration of that relationship.
Id. at 39. The Court stated that, if the Defendant attorney knew upon withdrawal of representation that the relevant statute of limitations would expire shortly, a breach of duty to plaintiffs would exist because no advice was given as to the limitations period. Id. at 42. In this case, the Plaintiff testified that, although no fee had been paid, Defendant had agreed to obtain her medical records, evaluate her claim, and advise her as to the appropriate action and evidence suggested that Defendant knew the SOL would expire less than a month before he referred the case to another attorney. Id. at 35. Under the circumstances of this case, the Defendant should have advised the client that the limitations period was running and that the client should promptly seek replacement counsel. Id. at 42.

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Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282

(Case summary by Rachael T. Soule, JD)
          • Discovery at issue: “Records Only” Deposition
          • Holding: A nonparty deponent from whom privileged information is sought through a “records only” or a “records and testimony” deposition subpoena is not required to file a motion to quash in order to challenge a request, and instead such party is permitted to simply object to the request for information.

Plaintiff, the head of a medical practice group, sued defendants, several physicians, for unfairly competing to secure a managed care contract from a health care provider. Id. at 620. The plaintiff did not initially name the health care provider as a defendant, but served a “records only” deposition subpoena on the provider’s custodian of records as a nonparty witness. Id. The provider produced some of the documents but withheld others, raising trade secrets and privacy objections. Id. at 620, 622. Plaintiff then amended his complaint for the third time, naming the health care provider as a defendant. Id. at 622. Plaintiff also moved to compel production of the documents not produced arguing that the objections had been waived because the provider had not obtained an order to quash or a protective order. Id. The provider opposed the motion and suggested an in camera inspection, claiming that discovery sought sensitive financial, business, and technical information unrelated to plaintiff’s cause of action. Id. The trial court, sua sponte, agreed with plaintiff and found that the provider, as a nonparty at the time of the discovery request, could only object via a motion to quash. Id.

The Court of Appeal reversed the trial court’s decision, holding that the discovery rules do not discriminate against nonparty deponents and a simple objection to the request was sufficient. Id. at 620. The Court explained that Code Civ. Proc. § 1987.1 contains permissive, not mandatory, language regarding motions to quash stating that, although the nonparty petitioner could have sought relief form the trial court before the production, it was not required to do so. Id. at 623-624. The Court also expressed concern about the potential for abuse if a harsher rule were created for nonparties than for parties. Id. at 625 (citations omitted). The Court ordered a peremptory writ of mandate directing the trial court to vacate its order granting the motion to compel further production and to set the matter of a new hearing on the grounds stated in the motion. Id. at 626.

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Nacht & Lewis Architects, Inc. et al v. Superior Court (1996) 47 Cal. App. 4th 214

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
      • Discovery at issue: Work Product Privilege
      • Holding: Recorded witness statements are entitled to work product protection and information sought by form interrogatory is entitled to qualified work product protection.

Plaintiff employees brought an action against defendant former employer. Id. at 216. Defendants objected and refused to answer interrogatories asking for “the identity of and information regarding individuals concerning the incident.” Id. Defendants based their objections stating that the information was protected by the attorney-client privilege and work product doctrin. Id. at 217. The Plaintiff filed for a motion to compel further responses and the trial court granted the motion. Id.

The Appellate Court reversed, distinguishing between cases in which the attorney merely is collecting information (such as statements by witnesses who had previously offered written or recorded recollections) and those in which the attorney is engaged in an ongoing evaluation of the case and is interviewing witnesses to aid in the effort. Id. at 217. The Court held that compelling the production of a “list of potential witnesses interviewed by defendant’s counsel, which interviews counsel recorded in notes or otherwise would constitute qualified work product because it would tend to reveal counsel’s evaluation of the case by identifying the persons who claimed knowledge of the incident from whom deemed it important to obtain statements.” Id.

Still, the Court maintained that unlike interview notes prepared by counsel, statements written or recorded independently by witnesses neither reflect an attorney’s evaluation of the case nor constitute derivative material, and therefore are neither absolute nor qualified work product. Id. at 218. The Court therefore vacated the order to compel further responses and remanded the case to determine the extent to which defendant’s counsel obtained independently written or recorded statements from one or more of the employees interviewed by counsel, noting that those independently prepared statements would not constitute qualified work product. Id. at 218-19.

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OXY Resources California, LLC v. Superior Court (2004) 115 Cal. App. 4th 874

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
      • Discovery at issue: Work Product Privilege
      • Holding: Work product privilege “is not waived except by a disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney’s work product and trial preparation.”

Plaintiff natural gas company sued defendants two resources companies on a variety of theories, all related to an alleged deprivation of its preferential purchase rights under a contractual agreement. Id. at 627. Plaintiff sought the production of close to 200 documents reflecting communications that took place between the two defendants both before and after they finalized their transaction, but before plaintiff filed its lawsuit. Id. Defendant sought to shield the documents from discovery on the grounds that they were protected by the attorney-client privilege and attorney work product doctrine as well as a joint defense agreement. Id. Plaintiff moved to compel the production of the documents arguing the defendant waived any privilege by disclosing communications “to an adverse party on the opposite side of a business transaction.” Id. at 630. The trial court granted plaintiff’s motion to compel discovery as to some of the documents, but denied it with respect to others. Id. at 631. Both plaintiff and one defendant petitioned for writs of mandamus. Id. at 632.

The Court of Appeal held that the trial court abused its discretion in denying plaintiff’s motion to compel the production of pre-acquisition documents based merely on the joint defense agreement between the two defendants. Id. at 638-39. The Court went on to explain that the joint defense agreement could not serve as the sole ground for withholding the documents. Id. at 638. Instead, the agreement evidenced the expectation of confidentiality necessary to avoid waiver by disclosure to someone outside the attorney-client relationship, but could not protect the documents from disclosure unless they contained or reflected attorney-client communications or attorney work product. Id. at 893. The Court maintained that under the common interest doctrine, an attorney can disclose work product to an attorney representing a separate client without waiving the attorney work product privilege if (1) the disclosure relates to a common interest of the attorneys’ respective clients; (2) the disclosing attorney has a reasonable expectation that the other attorney will preserve confidentiality; and (3) the disclosure is reasonably necessary for the accomplishment of the purpose for which the disclosing attorney was consulted. Id. at 891.
The Court required that the documents be submitted for in camera review to “permit the court to determine whether the disclosures were reasonably necessary to accomplish the lawyer’s role in the consultation.” Id. at 895-96. The Court held that the non waiver protections of Evid. Code §§ 912 and 952 are not limited to communications disclosed during the course of litigation and a waiver does not occur if the participants in the exchange have a reasonable expectation that the disclosed information will remain confidential and if the disclosure is made to advance their shared interest in securing legal advice on a common matter. Id. at 890-891.

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Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App. 4th 285

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
      • Discovery at issue: Discovery Sanctions
      • Holding: The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action.

Plaintiff employee sued defendants, former employer and employees, alleging employment-related torts and breaches of contract. Id. 289. The plaintiff failed to comply with discovery by refusing to testify at his first court-ordered deposition; walking out of his second deposition prior to its termination; failing to attend his third; and, refusing to provide answers to interrogatories. Id. at 292. The trial court, ex parte, issued an order to compel and awarded monetary sanctions against the plaintiff. Id. at 292. The plaintiff still did not comply with the discovery process so the trial court sanctioned plaintiff by dismissing his complaint. Id. at 293 Plaintiff appealed and challenged the discovery sanctions. Id.

The Appellate Court held that an award of sanctions in favor of a party who did not propound the discovery is justified only if the nonpropounding party shows it suffered a detriment as the result of the sanctioned party’s misuse of the discovery process. Id. at 301-02. The Court held the trial court had erred in imposing terminating sanctions in favor of parties who did not propound discovery themselves or show how they were prejudiced by plaintiff’s failure to comply with discovery requests propounded by others. Id. at 301-02. The Court thus affirmed the trial court’s judgment and its monetary sanction relating to the motion to compel further responses to interrogators, but reversed all other judgments. Id. at 302.

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People v. Gionis (1995) 9 Cal. 4th 1196

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
          • Discovery at issue: Attorney-Client Privilege
          • Holding: Finding defendant’s statements to his attorney friend as neither privileged nor prejudicial as they were made while not under the pretense of his friend acting as an attorney.

Defendant husband’s wife filed for a divorce against husband. Id. at 1201.  The wife and a friend were then assaulted and Defendant was arrested. Id. At trial, Defendant’s friend an attorney testified about several of the defendant’s statements. Defendant’s attorney friend made it clear prior to testifying that he was not willing to be involved in the matter as a lawyer. Id. Defendant objected to his attorney friend’s statements claiming the statements violated the attorney-client privilege. Id. at 1202.  The trial court overruled the objections and convicted defendant of conspiracy to commit an assault, conspiracy to commit a trespass, assault with a deadly weapon, and assault with a firearm. Id.
Defendant appealed and the Court of Appeals reversed based on the testimony and the prosecutor’s comments that were made during closing arguments. Id. The Court maintained that in the absence of a statute, no person has the privilege to prevent another from testifying or from disclosing any matter pursuant to Cal. Evid.  Code § 911(c).  Id. at 1207. Here, the defendant’s statements to his friend, an attorney, were all made after the attorney had declined to represent him, and thus were not privileged. Id. at 1210-1212. Therefore, the Court of Appeals held that the statements were not privileged nor were they prejudicial and thus not inadmissible under Cal. Evid. Code § 352.  Id. at 1221.

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Province v. Women’s Health Care Centers, Inc. (1993) 20 Cal.App.4th 1673

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
              • Discovery at issue: Expert Witness
              • Holding: If not designated as an expert, a treating physician may only testify to percipient observations as a non-expert.

A medical malpractice plaintiff appealed a jury verdict in favor of defendant doctor and health center for, among other things, prejudicial admission of expert witness testimony. Id. at 1677. The plaintiff contended that the defendants committed medical malpractice while she was in labor and the baby suffered severe brain damage as a result. Id. The matter was tried twice, and the doctor who testified at both trials had not been designated as an expert witness or deposed. Id. at 1681-83. The expert testimony concerned a crucial question as to when the knot in the umbilical cord occurred, possibly days before the baby was due, and whether it limited circulation to the fetus. Id at 1683.  The trial court allowed the opinion despite a prior ruling that the expert’s testimony be limited to his percipient observations, and despite plaintiff’s repeated objections. Id. at 1681; 1682-1683.

The Court of Appeals found that the trial court erred in allowing the testimony, as the testimony exceeded its limitation and touched on topics of expert opinion. Id. at 1683-1684. The Court maintained that “[T]he exchange of information about expert witnesses is a critical event in the course of any civil litigation and well-defined procedures are needed to insure fairness to the parties and efficient resolution of disputes. . . To prepare for trial, each side needs to know which expert will testify for the other side and what they will have to say.” Id. at 1683.  The Court articulated the purpose of California’s discovery statutes, stating that the statutes are meant to “assist the parties and the trier of fact in asserting the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delays; and to safeguard against surprise.” Id. at 1683-84 quoting Greyhoud Corp. v. Superior Court, (1961) 56 Cal. 2d 355, 376. The Court held that by permitting an undesignated expert to give expert opinions at a second trial after the granting of an in limine order precluding such testimony at the first trial, the trial court committed reversible error and that before retrial, the doctor must be deposed if he was going to give expert testimony. Id. at 1684.

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Rijkind v. Superior Court (1994) 22 Cal.App.4th 1255

(Case summary by Rachael T. Soule, JD)
              • Discovery at issue: Legal Contention Questions
              • Holding: Legal contention questions while proper in interrogatory form are improper in a deposition.

Plaintiff, an attorney, sued defendant, another attorney, regarding a fee dispute. Id. at 1256. At deposition, the defendant was asked “to state all facts, list all witnesses, and identify all documents that support the affirmative defenses”. Id. The defendant objected to the questions as improperly calling for legal conclusions and suggested that plaintiff propound the same questions through interrogatories. Id. at 1258. The plaintiff failed to use interrogatories to obtain the answers to its questions, but moved for a motion to compel defendant to answer. Id. The trial court issued plaintiff’s motion to compel defendant to answer the legal contention questions and ordered sanctions against defendant for refusing to answer. Id. Defendant challenged the order. Id.

On appeal, the Court held that a trial court may not require a deponent to answer “legal contention” questions that require a party to make a law-to-fact application that is beyond the competence of most lay people; however, such questions are appropriate for written interrogatories. Id. at 1261-63. The Court reasoned that the “basic vice” of such questions when used at deposition was their unfairness in “call[ing] upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot. There is no legitimate reason to put the deponent to that exercise.” Id. at 1262. Interrogatories are the proper tool to obtain such information because the deponent has “time for reflection,” the “assistance of counsel,” and the opportunity “to engage in a rather sophisticated process of legal reasoning”. Id. at 1262-63. Still, the Court held that questions asking a deponent about the basis for, or information regarding, a factual conclusion or assertion, are appropriate for a deposition. Id. at 1255, 1259. The Court directed the trial court to vacate and set aside its order compelling defendant to answer the deposition questions, dismissing the sanctions, and to enter a new order denying plaintiff’s motion to compel without sanctions. Id. at 1263-64.

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San Diego Unified Port Dist. v. Douglas Barnhart Inc. (2002) 95 Cal. App. 4th 1400

(Case summary by Rachael T. Soule, JD)
              • Discovery at issue: Discovery Costs.
              • Holding: When a party requires discovery “involving significant ‘special attendant’ costs beyond those typically involved in responding to routine discovery…”, the party who is demanding should bear the extra costs.

Plaintiff filed a lawsuit against defendants for professional negligence and related causes of action based on alleged defects in the construction of a new terminal at San Diego International Airport. Id. at 1402. The trial court deemed the litigation complex and issued a case management order “to reduce the cost of litigation, to assist the parties in resolving their disputes if possible, and… to reduce the costs and difficulties of discovery and trial.” Id. Defendants appealed the trial court’s order requiring defendants to contribute to the cost of destructive testing on the terminal’s stone floor. Id.

The Court of Appeal found that the trial court lacked authority to order defendants to pay because it found no legal basis for that exercise of discretion. Id. at 1404. Recognizing that “a trial court’s discretion in discovery matters is broad, if there is no legal basis for an exercise of that discretion it must be held that an abuse of discretion occurred (internal citations omitted).” Id. The Court opined that ordinarily each party finances their own suit, and that principle is “violated when a party is ordered to pay for discovery sought by another party.” Id. The Court held that when a party requires discovery “involving significant ‘special attendant’ costs beyond those typically involved in responding to routine discovery…”, the party who is demanding should bear the extra costs. Id. at 1405. The Court maintained that the trial court’s inherent power to exercise reasonable control over discovery matters did not authorize it to order defendant to pay for destructive testing they did not want, and therefore their order was an abuse of discretion. Id.

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Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64

(Case summary by Rachael T. Soule, JD)
              • Discovery at issue: Legal Contention Questions
              • Holding: Legal contention questions while proper in interrogatory form are improper in a deposition.

Plaintiff, husband and wife, sought compensation for asbestos-related injuries against multiple defendants, including a general contractor. Id. at 67. Plaintiff alleged he had been injured from asbestos exposure during his work as a laborer and electrician. Id. Defendant contractor moved for summary judgment claiming plaintiff lacked evidence to support causation because, during deposition, plaintiff failed to identify any jobsite where Defendant was a general contractor. Id. The trial court granted summary judgment in favor of the contractor defendant because plaintiff never explicitly placed the contractor at any of his worksites. Id. Plaintiff appealed. Id.

The Court of Appeals reversed the trial court’s decision noting that the plaintiff had not been asked at his deposition by any defendant, including defendant contractor, to identify any jobsite where defendant contractor was present; defendant contractor, in fact, asked no questions at the deposition nor did he conduct any other discovery. Id. Plaintiff claimed that defendant contractor had not carried its statutory burden of “showing” that the element of causation could not be established and the Court of Appeals agreed. Id. The Court held that while a defendant’s summary judgment motion can consist of “factually devoid” discovery responses from which an absence of evidence can be inferred, “we can infer nothing at all with respect to questions which were neither asked nor answered.” Id. at 80, 81. The Court found that the defendant contractor failed to meets its initial burden-shifting duty of presenting some affirmative evidence, rather than pointing to a mere lack of evidence on plaintiffs’ part. Id. at 81-84. The Court thus reversed the trial court’s grant of summary judgment in favor of defendant.

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Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
              • Discovery at issue: Expert Witness Testimony
              • Holding: Code. Civ. Proc. § 2034 does not require the submission of an expert witness declaration for a treating physician, who can provide both fact and opinion testimony.

In an automobile accident case, plaintiff designated his treating physicians as expert witness, but did not submit expert witness declarations. Id. at 33. The trial court ruled, “the physicians could testify as percipient witnesses but not as experts” – precluding the physicians from opining at trial that plaintiff’s injuries were caused by the accident. Id. The trial court found for the defendant, and the appellate court affirmed. Id.

The Supreme Court reversed, holding that a treating physician does not become a retained expert within the meaning of Code Civ. Proc. § 2034(a)(2) and therefore, the declaration requirement for expert witnesses does not apply. Id. at 34-36. The Court explained the difference between a retained expert (retained for the purpose of forming and expressing an opinion in preparation for trial) and a treating physician (“not consulted for litigation purposes . . . but because of the underlying physician-patient relationship”) and stated – “that does not mean that his [the treating physician’s] testimony is limited only to personal observations” and can include opinions regarding causation and standard of car. Id.

The court noted that the defendants were on notice that plaintiff intended to offer opinion testimony by her treating physicians because “the treating physicians in this case were designated as expert witnesses,” as required by Code Civ. Proc. §§ 2034(a)(1) & (f)(1)(A). Id. at 34. The Court thus reversed and remanded the case, finding that trial court erred in precluding plaintiff’s treating physicians’ causation testimony. Id. at 40.

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Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
              • Discovery at issue: Motion to Compel Production of Documents
              • Holding: The time within which to make a motion to compel production of documents is mandatory and jurisdictional under § 2031(I)

Plaintiff sued defendant hospital for negligence. Id. at 1405.  Defendant filed a demand for production of documents of which plaintiff objected. Defendant attempted to resolve the objections with plaintiff; however, never requested an extension of time to file a motion to compel.  Id. Defendant then filed a motion to compel the production of documents over two months after receipt of plaintiff’s response – well beyond the 45-day timeline provided for by CCP § 2031(I). Id.  Plaintiff filed written opposition papers to the motion to compel; however, did not raise the issue of timeliness.  Id.  At a motion hearing, Plaintiff orally made a motion to dismiss based on timeliness but the trial court would not rule on the motion. Id. at 1410.
Plaintiff then sought a writ of mandate. The Appellate Court granted the writ compelling the trial court to deny defendant’s motion to compel as untimely. Id. at 1408. The Court examined the legislative history of CCP § 2031(I) (now CCP § 2031.310) and found that legislature did not intend to vest any authority in the court to permit discovery that was not timely made. Id. at 1409-10. The Court thus held that the statutory 45-day limitation of CCP § 2031(I) (now CCP §2031.310(c)) was “mandatory and jurisdictional, just as it is for  motions to compel further answers to interrogatories.” Id. at 1410 [citations omitted]. The Court explained further that the 45-day limit was jurisdictional  in the sense that it renders “the court with authority to rule on motions to compel other than to deny time.” Id. at 1410.

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Shannon v. Superior Court (1990) 217 Cal. App. 3d 986

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
          • Discovery at issue: Attorney-Client Privilege
          • Holding: Receiver was entitled to the benefit of the attorney-client privilege with respect to the communications and the trial court did not have the authority to compel disclosure.

In a fraud suit against a corporation in receivership, the board of directors sought to obtain copies of communications to the receiver from counsel employed by the receiver to advise him regarding the fraud suit. Id. at 989.  The trial court ordered petitioner to disclose the documents. Id. at 992. The receiver contested the order. Id.  The Court of Appeal issued a writ of mandate and reversed the trial court’s order holding that neither the receiver nor his counsel were agents of the corporation and that the receiver, not the corporation, was the client of the attorney. Id. at 995.  The court compared the relationship between a receiver and his or her counsel with that of an executor acting in fiduciary obligations and found the two relationships synonymous: “what has been said about executors in the law of probate may generally be said, at least as to general principles, about trustees in the law of bankruptcy.” Id. at 993-94 [citations omitted]. The court maintained that the “Legislature’s unqualified protection of the privilege requires it be preserved…” Id. at 995 [citations omitted]. The Court also rejected the argument that because the receiver is an officer of the court he must yield to the court’s direction to disclose his communications with his attorney. Id. at 993.

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Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
              • Discovery at issue: Monetary Sanctions for Late Responses to Interrogatories.
              • Holding: Monetary sanction under Code Civ. Proc. §§ 2030.290(c), 2023.030 was proper for violation of order compelling responses.

In a breach of contract action, plaintiff propounded interrogatories to defendants. Id. at 396-97. The defendants served responses to the interrogatories after the requested deadline and just before a hearing on a motion to compel further responses. Id. at 398. In the responses to interrogatories, defendant answered some of the questions by indicating that he was unable to respond due to lack of knowledge. Id. The trial court granted the plaintiff’s motions to compel. Id. at 399. The defendants did not file any opposition to the motions nor did they provide further interrogatory answers in response to the motions to compel. Id. at 400-401. The trail court thus granted monetary sanctions against defendants based on failure to comply with the order compelling responses. Id. at 401. Defendants appealed. Id.

The Court of Appeals held the trial court has discretion regarding whether to proceed with a motion to compel responses when interrogatory responses are untimely, whether or not the late responses were made in a good faith effort. Id. at 408-09. Still, a response to some interrogatories does not divest a trial court of authority to hear and grant a motion to compel answers under Code Civ. Proc. § 2030.290(b). Id. at 407. The Court also maintained that Code Civ. Proc. § 2030.210(a) does not permit a party to respond to interrogatories just be asserting inability to respond and therefore, affirmed the trial court’s sanction order. Id. at 406, 412.

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Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
              • Discovery at issue: Expert Witness
              • Holding: Information and opinions of an expert relevant to his status as a witness are discoverable through interrogatories or depositions.

Plaintiff, a church, filed a negligence action against defendant contractor for fire damage allegedly caused by defendant when repairing the church. Id. at 429. The plaintiff served interrogatories on defendant that sought the extent of defendant’s expert’s experience, training, and education. Id. at 429-430. In response to certain interrogatories, defendant state he had no additional information and objected to obtaining the information requested from his expert witness, at his own expense. Id. at 430. Instead, the defendant advised the plaintiff to depose the expert itself and pay for the expert’s time. Id. The plaintiff filed a motion for sanction. Id. at 431.

The trial court granted plaintiff’s motion and ordered the defendant to pay the plaintiff’s attorney’s fees, submit the expert for deposition, and pay for the expert’s time. The defendant filed a writ of mandate. Id. at 431-32. The Appellate Court held that when an attorney retains an expert, the attorney vouches for the expert’s competence, and has a duty to obtain from the expert whatever information was necessary to support the expert’s competence. Id. at 433. The Court held the sanctions imposed by the trial court were a proper exercise of its discretion. Id. at 434.

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Singer v. Superior Court (1960) 54 Cal.2d 318

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
              • Discovery at issue: Interrogatories
              • Holding: Discovery serves the function of “testing the pleadings,” i.e., enabling a party to determine what his opponent’s contentions are and what facts he relies upon to support his contentions.

The plaintiff brought a personal injury action against defendant. Id. at 320. The plaintiff propounded contention interrogatories on defendant asking “what fact or facts form the basis” of defendant’s affirmative defenses of contributory negligence and assumption of the risk. Id. at 321. The defendant objected to the interrogatories, arguing that: “plaintiff was in a better position to know the answers”; the interrogatories sought discovery of conclusions and opinions rather than fact; and, by answering all the facts upon which defendant bases his defenses, defendant would be limited from relying upon any other facts or evidence which might subsequently come to its knowledge. Id. at 321-23. The trail court denied plaintiffs motion requiring defendant to answer and instead sustained defendants refusal to answer. Id. at 321.

The Supreme Court issued a writ of mandate to compel the answers to interrogatories finding that “[n]o rule or authority is cited which authorizes refusal to answer an interrogatory simply on the ground that the answer is known to the party seeking the information.” Id. at 324. In addition, the Court maintained that interrogatories could not be used to “trap” a party so as to limit them to facts then known and prevent it from producing subsequently developed facts. Id. at 325. Noting the propriety of pleading such defenses in the answer, the court found that interrogatories should have been answered even though they pertained to the pleadings. Id. The Court held that, pursuant to Cal. Civ. Proc. Code § 2016(b), interrogatories may cover any matter, not privileged, relevant to the subject matter involved in the action, including claims or defenses of any party. Id. at 323.

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Smith v. Circle P. Ranch Company, et al. (1978) 87 Cal.App.3d 267

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
              • Discovery at issue: Cost of Proof Sanctions
              • Holding: A party need not be the prevailing party in order to recover costs incurred in proving that the responding party failed to admit.

Plaintiff sued multiple defendants for personal injuries arising out of the operation of a grain elevator. Id. at 271. The defendants refused to admit the authenticity of certain photographs and documents during discovery, which were later authenticated during trial. Id. at 271. The jury returned a general verdict in favor of plaintiff against certain defendants and a special verdict of lack of negligence against the remaining defendants. Id. Plaintiff moved for an award of sanctions against all defendants for wrongful denial of requests for admissions. Id. at 277. The trial court imposed the sanctions only against the prevailing defendants. Id. The prevailing defendants appealed on the ground that the trial court erred in imposing expenses on a prevailing party. Id. at 271.

The Appellate Court held that the general finding that the defendant was not negligent was not coextensive in justifying defendants’ denials to the requests for admissions, or in precluding the plaintiff’s ability to prevail on a motion for sanctions under former Code Civ. Proc. 2034(c) (see now Code Civ. Proc. 2033.420). Id. at 274. The Court held that the defendants’ denial of admission requests entitled the plaintiff to sanctions for cost of proving the matters but the reasonableness of the sanctions could not be determined. Id. at 280. The Court thus reversed the order imposing sanctions and remanded the matter for redetermination regarding expenses and attorney’s fees reasonably related to proof of the matters wrongfully denied by defendants. Id.

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Smith v. Laguna Sur Villas Community Assoc. (2000) 79 Cal. App. 4th 639

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
              • Discovery at issue: Attorney-Client Privilege
              • Holding: A condominium association was the holder of the attorney-client privilege and individual homeowners could not demand the production of privileged documents, except as allowed by the association.

Condominium association sued the developer for construction defect. Id. at 639. Plaintiff, two individual members of the condominium association and condo owners, brought an action against defendant condominium association for declaratory and injunctive relief. The actions were consolidated. Id. at 640. The plaintiff sought work product and legal bills from the law firm hired by the defendant association to represent it in the construction defect litigation; however, the association objected that the documents were protected by the attorney-client and work product privilege. Id. at 639-40. The trial court ruled that the association, rather than its individual owners, was the holder of the attorney-client privilege. Id. at 640. The plaintiff appealed.
The Appellate Court affirmed the trial court’s holding, finding that because the Plaintiff members/owners were not individually named as plaintiffs in the Association’s construction defect litigation against the developers, the owners could not be allowed to access the privilege information. Id. at 642. The court rejected plaintiffs’ argument that they were holders of the privilege as the “true clients” of the attorneys retained by the association because the condominium association could only act in a representative capacity. Id. 644. The Court pointed out that corporations do have a separate legal identity and enjoy the benefit of the attorney-client privilege. Id. Although directors do have rights to request privilege information in their capacity as fiduciaries, neither of the two individuals in the present case was a director of the association they sued. Id. The court explain, “[l]ike closely held corporations and private trusts, the [association] is the entity that retained the attorney to act on its behalf.” Id. at 643. Thus, “[w]here the association sues in its own name without joining with it the individual unit owners, the association, no the unit owners, holds the attorney-client privilege.” Id. The court added that any indirect payment of attorney’s fees by the association members did not determine the ownership of the attorney-client privilege.

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Spectra-Physics, Inc. v. Sup.Ct. (Teledyne) (1988) 198 Cal.App.3d 1487

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
              • Discovery at issue: Depositions of Opposing Counsel
              • Holding: The practice of deposing opposing counsel should be severely restricted, and permitted only under a showing of extremely good cause.

Plaintiffs sought damages for personal and property injuries allegedly sustained due to contamination of groundwater. Id. at 1490. In a motion to determine the good faith of the settlement under Code civ. Proc. § 877.6, a settled party defendant sought to depose the attorney for a non-settled party defendant on the issue of whether he had acted in bad faith in impeding the settlement process. Id. at 1490-92. The trial court ordered that the opposing counsel submit to discovery. Id. 1493. The non-settled party defendant filed a petition for mandate asserting the lower court abused it discretion in allowing the discovery. Id.

On appeal, the Appellate Court noted that deposing opposing counsel is: disruptive and lowers the standards of the profession; adds to the already burdensome time and costs of litigation; detracts from the quality of client representation; and, has a chilling effect on attorney-client communications. Id. at 1494. Still, the Court maintained that deposition of opposing counsel can be justified if: (1) No other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the case. Id. at 1494-45.

Applying the above, the Court found that the settling party did not meet the first or third requirements because defendant had other means of obtaining the information and did not produce sufficient evidence to justify the discovery. Id. at 1496.-97. The Court of Appeal issued a writ of mandate ordering the trial court to vacate its order and enter a new order denying permission to take the deposition. Id. at 1498.

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St. Mary v. Superior Court(2014) 233 Cal. App.4th 762

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
              • Discovery at issue: Request For Admissions
              • Holding: Actual compliance with all statutory requirements for a response to RFAs is not required where the proposed response is facially a good-faith effort to respond to RFAs in a manner that is substantially code compliant.

Plaintiff brought an action for damages, alleging fraud and other claims. Id. at 766. Defendants propounded 119 request for admissions directed to plaintiff.  Id. After submitting two written requests for extension to respond, which were denied a day after the due date, counsel for plaintiff served responses to the RFAs four days late.  Id. at 766-67.  Defendant then filed a motion requesting that the RFAs be deemed admitted, pursuant to CCP § 2033.280 (b), without any attempt to meet and confer. Id.  The court granted the Motion as to the RFA’s, deemed 41 RFAs admitted, and awarded sanctions in favor of defendants.  Id.

The Court of Appeals held that the trial court erred in deeming the RFAs admitted. Id. at 767.  “A responding party’s service of a tardy proposed RFA response that is substantially code compliant will defeat a deemed admitted motion. Id. at 778 [citations omitted]. The Court maintained that unlike the other 5 discovery tools which seek to obtain proof, RFAs seek to eliminate the need for proof. Id. at 775.  The Court claimed that Plaintiff’s response was filed before the hearing on the Motion and even before the Motion was filed and found that the Plaintiff’s RFAs substantially complied with section 2033.220 as they were: (1) verified by the party; (2) contained responses to a majority of the individual RFAs that were code compliant; (3) contained substantive responses; and, (4) was served well before the hearing.  Id. at 782.  The Court further concluded that the respondent court abused its discretion and misapplied section 2033.280 in granting the deemed admitted Motion in part and denying it in part.  Id. at 780.

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Standon Co. v. Superior Court (1990) 225 Cal. App. 3d 898

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
              • Discovery at issue: Motion to Compel
              • Holding: A discovery motion to compel must “be made within 45 days of service of the response” and failure to do so “waives” the right to bring such a motion.

In a personal injury action arising from an auto accident, Defendants served on Plaintiff a demand for inspection and production of documents under CCP § 2031. Id. at 900. Plaintiff objected to some of the requests as privileged, but agreed to produce other documents requested. Id. at 901. Defendants filed a motion to compel further response, directed at the documents not produced. Id. at 902. The trial court found Defendant’s motion untimely, as it was filed more than 45 days after the response date and imposed a $1 sanction. Id.  Defendants petitioned for a writ of mandate. Id. at 900.
The Court of Appeal issued a peremptory writ directing the trial court to vacate its order awarding sanctions; however, in all other respects the petition was denied. Id. The Court held that failure to file a motion to compel within the 45 day time-limit constitutes a waiver of any right to compel further response. Id. at 902. The Court also held that the trial court is not required to award monetary sanctions against an unsuccessful party. Id. at 904. The trial court should exercise its discretion and consider whether the losing party acted with “substantial justification,” or whether “other circumstances make the imposition of the sanction injury.” Id. Because it was unclear whether the trial court had made those considerations, the issue was sent back for reconsideration. Id. 904-905.

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Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
                  • Discovery at issue: Relevancy of Deposition Questions
                  • Holding: Relevancy objections at deposition are unnecessary and improper, unless deposing counsel’s insistence on inquiring into irrelevant areas is based on counsel’s intent to harass, annoy, embarrass, or oppress the deponent.

Plaintiff brought a breach of contract action alleging wrongful termination from defendant employer. Id. at 1009-10. During the deposition by plaintiff’s attorney of defendant’s employee, the defense attorney directed the deponent not to answer certain questions. Id. at 1010. The trial court ordered a motion to compel further responses against defendant and granted sanctions to plaintiff for defendant’s failure to respond. Id. at 1011. Defendant appealed, arguing that the questions the deponent was instructed to answer would not produce admissible evidence and the sanctions were erroneous because plaintiff failed to engage in a good faith effort to meet and confer the motion to compel. Id. at 1012.

The Appellate Court found that the trial court did not err in finding that the efforts by plaintiff’s counsel to meet and confer were adequate and that the questions defendant refused to answer could have led to discovery of admissible evidence. Id. at 1013. The Court noted that under Code Civ. Proc. § 2025.460(c), “[o]bjections to . . . the relevancy, materiality, or admissibility at trial of the testimony . . . should be held in abeyance until an attempt is made to use the testimony at trial.” “Deponents counsel should not even raise an objection to a question counsel believes will elicit irrelevant testimony.” Id. at 1014. The Court maintained that irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition and thus the trial court’s imposition of sanctions were proper. Id. at 1014.

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Stony Brook I Homeowners Ass’n. v. Superior Court (2000) 84 Cal.App.4th 691

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
                  • Discovery at issue: Expert Testimony
                  • Holding: To show bias or prejudice of an expert, a party need not learn the details of his billing and accounting of the specifics of his prior testimony and dispositions.

The plaintiff sought to propound evidence about the defense expert’s prior earnings from serving as an expert witness in other cases. Id. at 694. The trial court ordered defendant to produce a summary of the records of its expert witness, showing the experts total compensation for defense and plaintiff related legal-work over the past four years. Id. The expert claimed that compiling such information would consume too much time, disrupt his practice, and invade his privacy. Id. The trial court ordered the production of information. Id. at 697. Defendants filed a write of mandate and relief from the trial court’s orders. The defendants petition was granted. Id. at 698.

The Appellate Court held that although experts were generally required to provide such information to demonstrate any bias or prejudice, precise information about experts billing and accounting excessively intruded upon the expert’s privacy interests. Id. at 699. The court noted that the expert could voluntarily choose to have a third party compile the data necessary with the cost borne by plaintiff. Id. at 700. The Court issued a writ overturning the trial court’s order and directed the trial court to enter a discovery order requiring the defense expert to provide more limited information based on estimates of defense and plaintiff related work and income generated from said work. Id.

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Stull v. Sparrow (2001) 92 Cal.App.4th 860

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
                  • Discovery at issue: Cost of Proof Sanctions
                  • Holding: An award of cost of proof sanctions is designed to reimburse reasonable expenses incurred by a party in proving the truth of a request admission, such that trial would have been expedited if the requested had been admitted.

In a personal injury lawsuit, defendants refused to admit liability in response to the plaintiff’s requests for admissions. Id. at 862-63. Immediately before trial, defendant conceded liability, obviating the need for proof on the issue. Id. at 864. The plaintiff filed a motion seeking an order awarding expenses incurred in proving matters that the defendant had admitted. Id. The trial court denied the motion. Id.

The Appellate Court affirmed the trial court’s decision that plaintiff was not entitled to an award of expenses noting that the plaintiff did not submit any proof of liability and simply preparing to submit proof on an issue does not justify expenses under Code Civ. Proc. § 2033. Id. at 865. The Court held that the trial court held discretion in “determin[ing] whether a party proved the truth of matter that had been denied” recognizing that “until a trier of fact is exposed to evidence and concludes that the evidence supports a position, it cannot be said that anything has been proved.” Id. at 865-66.

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Terry v. SLICO (2009) 175 Cal. App. 4th 352

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
                  • Discovery at issue: Trial Subpoenas vs. Deposition Subpoenas
                  • Holding: The specific provisions of Code Civ. Proc. § 2020.510 superseded the general provisions of § 1987.5.

A nonparty witness was served with a subpoena compelling testimony and production of documents at a deposition. The nonparty witness failed to object or appear to depositions on two occasions. Id. at 355. A motion to compel was filed requesting attendance and sanctions. Id. The nonparty witness opposed the motion on the ground that the subpoena served on him was invalid because it was unaccompanied by a supporting affidavit or declaration. Id. The trial court found service of the deposition subpoena effective. Id.

The Appellate Court found that the trial court had not abused its discretion in imposing reasonably monetary sanctions for failure to comply with the subpoena and agreed with the trial court that service of the deposition subpoena was effective despite the absence of a supporting affidavit or declaration. Id. at 359. The Court observed that under Code Civ. Proc. § 1987.5, a subpoena duces tecum requiring appearance and the production of matters at the taking of a deposition was not valid unless a supporting affidavit or declaration was attached; however, under Code Civ. Proc. § 2020.510(b) a deposition subpoena commanding the attendance and testimony of a deponent did not need to be accompanied by an affidavit or declaration. Id. at 357-359.

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Toyota Motor Corp. v. Superior Court (2011) 197 Cal. App. 4th 1107

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
                  • Discovery at issue: Geographical Limits for Deposing Non-Party Witnesses
                  • Holding: A witness who is not a resident of California at the time of service of the deposition notice or subpoena cannot be compelled to attend a deposition in California.

In a product liability action, the plaintiffs moved to compel the deposition of non-party witnesses under Code Civ. Proc. § 2025.260, which authorized a court to extend geographical limits on site of deposition. Id. at 1111-12. The trail court accepted the plaintiff’s argument and ordered the depositions. Id. at 1112.

The Appellate Court reversed the trial court’s decision, holding the trial court’s order violated Code Civ. Proc. § 1989. After extensively reviewing the legislative histories of both Sections 1989 and 2025.260, the Court concluded that Section 1989 applied to non-resident deponents. Id. at 1114-22. While the Court noted that Code Civ. Proc. § 2025.260 grants the trial court authority to extend the mileage limitations for ordering attendance at a deposition, such depositions were subject to the residency restriction in § 1989. Id. at 1117-18. The Court held that Code Civ. Proc. § 1989 precludes a trial court from using Section 2025.260’s “balancing test” to compel a non-resident party witness to travel to California for a deposition. Id. at 1117.

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Tucker v. Pac. Bell Mobile Servs. (2010) 186 Cal.App.4th 1548

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
                  • Discovery at issue: Deposition Sanctions
                  • Holding: A trial court does not have authority to award the costs of future deposition as the party seeking those sanctions was not yet liable for those expenses.

Consumer plaintiffs brought an unfair competition suit against defendant service provider. Id. at 1550. During deposition, plaintiff’s attorney was coaching his client during deposition by showing the client notes on a legal pad and refusing to show the notes to opposing counsel. Id. The trial court imposed monetary sanctions against plaintiffs for misconduct during deposition, including a sum for a future deposition of the client. Id. at 1551. Plaintiff appealed, contending the trial court should have denied defendants’ motion because they did not move to compel deposition responses before moving for sanctions. Id. at 1561.

The Court of Appeal rejected plaintiffs’ arguments, finding that plaintiff’s reliance on Code Civ. Proce. § 2025.480(a), (b) was misplaced as the statute does not require a party to move to compel answers before seeking monetary sanctions pursuant to Code Civ. Proc. § 2023.030. Id. In addition, the Court maintained that Code Civ. Proc. § 2023.030(a) does not authorize the trial court to award the costs of a future deposition as a discovery sanction because the cost had not yet been incurred. Id. at 1562-64. The Court reversed the trial court’s order to the extent it had awarded monetary sanctions for costs related to the taking of a future deposition and remanded to the trial court with instructions to recalculate the amount of sanctions. Id. at 164-65.

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Union Bank v. Superior Court (1995) 31 Cal.App.4th 573

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
                  • Discovery at issue: Interrogatory Answers
                  • Holding: A defendant may rely on a plaintiff’s factually insufficient discovery responses to show that a plaintiff cannot establish an essential element of the plaintiff’s cause of action.

Plaintiff investors in a limited partnership leased a medical scanner then defaulted on payments for the scanner, which lead to the repossession of the scanned by defendant bank. Id. at 577. Plaintiff than sued the defendant for negligent and intention misrepresentation used to solicit plaintiffs to lease the scanner. Id. at 576-77. The defendant moved for summary judgment but the trial court denied the motion. Id. at 577-79. The defendant petitioned for a writ of mandate pursuant to Code Civ. Proc. § 437c(1) to require the trial court to grant the summary judgment motion. Id. at 579.

In support of defendants motion for summary judgment, the defendant produced the plaintiffs’ discovery responses, which were devoid of any evidence supporting claims that the defendant made fraudulent misrepresentations or that the defendant participated in a conspiracy to defraud. Id. at 580. The Court held defendant could rely on plaintiffs’ interrogatory answers in its separate statement of undisputed facts. Id. at 590. The Court of Appeal held that the defendant had met its initial burden of production under Section 437(c) by showing that the nonmovant lacked evidence sufficient to prevail at trial. The trial court was ordered to enter summary judgment in favor of defendant. Id. at 591-592.

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Urban Pac. Equities Corp. v. Sup.Ct. (1997) 59 Cal.App.4th 688

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
                  • Discovery at issue: Business Records Deposition Subpoena
                  • Holding: A party cannot use a business records deposition subpoena to compel a court reporter to make a deposition transcript in lieu of paying the reporter its copying fee.

Plaintiff sued defendant for legal malpractice. Id. at 690. Defendant served on a court reporter with a “business records deposition subpoena” for a large deposition transcript to avoid the court reporter’s expensive fee for photocopy a deposition transcript. Id. The plaintiff moved to quash the subpoena, complaining it was a misuse of a discovery tool. Id. at 690-91. The trial court granted the motions to quash and the defendant filed a petition for a writ of mandate. Id. at 692.

The Appellate Court rejected defendant’s argument that the transcript was a product of business and not a “businesses record”, concluding that “business records” are “an item, collection, or grouping of information about a business entity;” and they do not include “the product of a business entity” within the meaning of Code Civ. Proc. § 2020. Id. at 693. The Court held a deposition could not be subpoenaed from the court reporter who transcribed it on the ground that it was a business record of the reporter. Id. at 694. The Appellate Court denied petitioner’s writ of mandate concluding that petitioner could not void the high cost of a court recorder’s transcript by means of a deposition subpoena. Id. at 695.

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Vasquez v. California Sch. of Culinary Arts, Inc. (2014) 230 Cal. App. 4th 35

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
                  • Discovery at issue: Subpoena Seeking Electronically Stored Information
                  • Holding: A subpoena for electronically stored information can specify the form or forms in which each type of information is to be produced.

Plaintiff, former students, brought breach of contract and related claims against defendant school, alleging defendant defrauded them into enrolling in school by misrepresenting graduation rates, employment prospects and income levels. Id. at 37. Plaintiffs issued a subpoena seeking electronically stored information regarding loan files to be produced “in a format that is electronically searchable and sortable”. Id. at 38. Defendants refused not only to comply with the subpoena but also to provide a requested cost estimate, even though respondents repeatedly asked appellant for such an estimate. Id. Defendant filed a motion to quash, which the trial court denied. Id. at 39. The trial court granted plaintiffs’ request for attorney fees, finding defendant’s motion to quash was without substantial justification. Id. at 40.

The Appellate Court agreed with the trial court that the defendant lacked substantial legal and factual justification for its refusal to comply with subpoena seeking electronically stored information. Id. at 41. Within the scope of permissible discovery under Code Civ. Proc. § 1985.8, a party is required to translate any data compilations included in subpoena into a reasonably usable form. Id. Therefore, the Appellate Court found the trail court’s order under Code Civ. Proc. § 1987.2(a) awarding respondents attorney fees they incurred opposing appellant’s motion to quash was not an abuse of discretion. Id. at 45

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West Pico Furniture Co. v. Superior Court (1997), 56 Cal. 2d 407

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
                  • Discovery at issue: Objections to Interrogatories
                  • Holding: An objection to an interrogatory on the grounds of burden and expense is not valid unless the burden results in injustice.

Plaintiff furniture company brought suit against defendant loan company. Id. at 413. Plaintiff sought answers to interrogatories from defendant, who answered some of the interrogatories and filed objections based on the burden of answering interrogatories that requested the names and addresses of all employees who participated in various transactions and the dates of those transactions. Id. at 413. The trial court sustained the defendant’s objections; the plaintiff then sought a writ of mandamus to compel the court to set aside its order. Id. at 413.

The writ was granted. Id. The Supreme Court held the trial court abused its discretion in granting the objections, finding the requests for information was proper as such information would allow the party to make a reasoned decision as to which of those individuals it would depose. Id. at 416. The Court further held that the objection of burdensomeness was “valid only when that burden is demonstrated to result in injustice.” Id. at 418. The Court asserted that the trial court is not empowered to sustain an objection based on burden entirely, but instead should have recognized its discretionary power to grant in part and deny in part, to balance equities including costs — or, to “balance the purpose and need for the information as against the burden which production entails…” Id. The Court maintained that instead of simply denying certain interrogatories, which it described as “shotgun questions,” completely, the trial court could have required the interrogatories be rephrased. Id.

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Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618

(CASE SUMMARY BY RACHAEL T. SOULE, JD)
                  • Discovery at issue: Request for Admission
                  • Holding: To escape paying opponent’s costs of proof, a party must at a minimum attempt to contest with admissible evidence the facts it refused to admit under a request for admission.

The plaintiff was injured when the fork assembly of his bicycle broke. He brought a strict product liability action against the defendant distributor. Id. at 623. The defendant denied plaintiff’s requests seeking an admission that a defect in defendant’s product was a proximate cause of his injuries and that his medical expenses were reasonable and necessary. Id. at 624.

The Court of Appeals held that the trial court abused its discretion in denying plaintiff’s costs of proof motion: “Failure to award [plaintiff] expenses incurred in proving the fork assembly was defective and the legal cause of his injuries, is an abuse of discretion.” Id. at 636-637. The Court reversed the trial court’s denial of plaintiff’s motion for expenses incurred in proving the matters denied by defendant. Id. at 638. The court remanded the matter to the trial court for its determination of an appropriate cost award, noting that plaintiff’s request appeared to include expenses incurred before defendant denied the requests for admission. Id. The Court said that the award may only include expenses incurred in proving matters denied; it may not include expenses incurred before the request for admission was denied. Id. at 637.

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