Sophie Strasburg et al vs Santa Barbara Unified School District et al

Case Number

20CV00740

Case Type

Hearing Date / Time

Fri, 03/14/2025 - 10:00

Nature of Proceedings

5 Motions to Compel

Tentative Ruling

(1) For all reasons discussed herein, the motion of plaintiffs for an order compelling defendant the Santa Barbara Unified School District to provide responses or further responses to plaintiffs’ set one requests for admission is granted. On or before March 17, 2025, defendant the Santa Barbara Unified School district shall, pursuant to the parties’ agreement, serve responses or further responses to plaintiffs’ set one requests for admission nos. 8 through 19, 21 through 26, 28 through 33, 35, 37, 38, 40 through 42, 46, 47, 50, 53, 54, 59, 62, 64, 72, 73, 79, and 80.

(2) For all reasons discussed herein, the motion of plaintiffs for an order compelling defendant Santa Barbara Unified School District to provide responses or further responses to plaintiffs’ set two special interrogatories is granted. On or before March 17, 2025, defendant Santa Barbara Unified School District shall, pursuant to the parties’ agreement, serve responses or further responses to plaintiffs’ set two special interrogatory nos. 314 through 325.

(3) For all reasons discussed herein, the motion of plaintiffs for an order compelling defendant Shannon Saleh to provide responses or further responses to plaintiffs’ set one requests for admission is granted. On or before March 17, 2025, defendant Shannon Saleh shall, pursuant to the parties’ agreement, provide responses or further responses to plaintiffs’ set one requests for admission nos. 8 through 12, 14, 18, 19, 22, 25, 29, 50, 54, and 57 through 59.

(4) For all reasons discussed herein, the motion of plaintiffs to compel further responses to plaintiffs’ set one requests for admission from defendant Suzette McCormick is denied without prejudice.

(5) For all reasons discussed herein, the motion of plaintiffs to compel further responses to plaintiffs’ set two requests for production of documents from defendant Santa Barbara Unified School District is granted. On or before March 28, 2025, defendant Santa Barbara Unified School District shall serve verified, code compliant further responses, without the objections overruled herein except as to those based on privilege, to plaintiffs’ set two requests for production nos. 52 through 62, in accordance with this ruling. In addition, defendant shall, if necessary, produce a privilege log in accordance with this ruling.

Background:

The first amended complaint (FAC) filed on February 19, 2021, by plaintiffs Sophie Strasburg (Sophie), Gidget Strasburg (Gidget), Keven Strasburg (Keven), and Summer Strasburg (Summer), by her guardian ad litem Gidget (collectively, plaintiffs), is the operative pleading in this matter. (Note: To avoid confusion due to common familial surnames, the Court will refer to plaintiffs individually by their first names. No disrespect is intended.) As alleged in the FAC:

On February 22, 2019, Sophie, who was 17 years old at the time and attending San Marcos High School (San Marcos), was chosen to perform in a variety talent show for the theater department of San Marcos. (FAC, ¶¶ GN-1 & Prem.L-1.) The variety talent show was organized, sanctioned, and presented by defendants San Marcos, the Santa Barbara Unified School District (the SBUSD), Shannon Saleh (Saleh), Suzette McCormick (McCormick), and Alex Sheldon (Sheldon). (FAC, ¶¶ GN-1.) (Note: The record indicates that Sheldon was erroneously sued as “Alex Shelton”.)

Under the direction of San Marcos, Saleh, McCormick, and Sheldon, Sophie was directed to wear a hippopotamus costume as part of her act. (FAC, ¶ GN-1.) The costume Sophie wore was too large, poorly maintained, and created visual impairment. (Ibid.) In addition, the lighting in the auditorium was insufficient. (Ibid.) During her performance, Sophie fell off an elevated stage, severely injuring her left ankle. (FAC, ¶ GN-1 & Prem.L-1.) Sophie’s parents, Keven and Gidget, and Sophie’s younger sister Summer, were in the audience and witnessed Sophie fall and injure herself. (Ibid.) Keven, Gidget, and Summer each suffered mental anguish, emotional trauma, and distress from the event. (FAC, ¶ GN-1.)

Sophie was taken to the emergency room where she was diagnosed with multiple fractures in her left ankle, foot, and the lower end of her left fibula. (FAC, ¶ GN-1.) As a result of Sophie’s injuries, she was required to utilize a knee scooter to travel around San Marcos. (Ibid.)

On April 23, 2019, Sophie was on her way to the theater department as required by San Marcos when she hit a curb. (FAC, ¶ GN-1 [fourth cause of action at p. 7].) San Marcos failed to provide safe handicap access around the campus for Sophie and to properly maintain its premises. (Ibid.) Sophie was thrown from her knee scooter, breaking her left elbow and suffering injuries to her face. (Ibid.)

Plaintiffs allege five causes of action: (1) negligence (against San Marcos, Saleh, McCormick, Sheldon, and the SBUSD); (2) premises liability (against San Marcos, Saleh, McCormick, Sheldon, and the SBUSD); (3) negligent supervision of a minor (against San Marcos, Saleh, McCormick, Sheldon, and the SBUSD); (4) negligence (against San Marcos and the SBUSD); and (5) premises liability (against San Marcos and the SBUSD).

On March 18, 2021, McCormick filed an answer to the FAC, generally denying its allegations and asserting twenty-five affirmative defenses. San Marcos, Saleh, Sheldon, and the SBUSD did not file a response to the FAC.

On October 19, 2023, the SBUSD, Saleh, McCormick, and Sheldon filed a cross-complaint against Christopher “Woody” Locke (Locke), asserting four causes of action for indemnification, apportionment of fault, negligence, intentional tort, and alleging that Locke’s willful failure to use reasonable care in supervising students for the Royal Blue Variety Show at San Marcos caused Sophie’s injuries.

Court records show that Locke has not filed a response to the cross-complaint of the SBUSD, Saleh, McCormick, and Sheldon.

On December 17, 2024, plaintiffs filed five motions: (1) a motion for an order (the SBUSD RFP Motion) compelling the SBUSD to respond to, and produce documents pursuant to, plaintiffs’ set two requests for production of documents and things (the SBUSD RFP); (2) a motion for an order (the SBUSD RFA Motion) compelling the SBUSD to provide further responses to plaintiffs’ set one requests for admission (the SBUSD RFA) nos. 8 through 19, 21 through 26, 28 through 33, 35, 37, 38, 40 through 42, 46, 47, 50, 53, 54, 59, 62, 64, 72, 73, 79, and 80; (3) a motion for an order (the SBUSD SI Motion) compelling the SBUSD to respond to plaintiffs’ set two special interrogatories (the SBUSD SI) nos. 314 through 325; (4) a motion for an order (the McCormick FI Motion) compelling McCormick to respond to plaintiffs’ set one form interrogatories (the McCormick FI) nos. 1.1, 2.0, 12.2, 12.3, 13.1, and 13.2; and (5) a motion for an order (the Saleh RFA Motion) compelling Saleh to provide further responses to plaintiffs’ set one requests for admission (the Saleh RFA).

In support of each of the motions described above, to which the Court will refer collectively as the discovery motions, plaintiffs submit a declaration of their counsel, Steven R. Andrade (Andrade), who states that plaintiffs served the SBUSD RFP, the SBUSD RFA, the SBUSD SI, the McCormick FI, and the Saleh RFA (collectively, the discovery requests) on July 9, 2024. (Andrade Decl., ¶¶ 3-6.) On August 5, September 9, September 23, and October 23, 2024, the SBUSD, McCormick, and Saleh (collectively, defendants) requested extensions of time to provide responses to the discovery requests. (Id. at ¶¶ 7-10 & Exhs. A-D.)

On November 1, 2024, defendants each separately served their respective responses to the discovery requests, which consisted of mostly objections. (Andrade Decl., ¶¶ 11-15 & Exhs. E-H.) Andrade further asserts that, with the exception of McCormick FI no. 17.1, McCormick failed to respond to the McCormick FI at issue in the McCormick FI Motion. (Id. at ¶ 15.)

Andrade further states that on October 23, 2023, he attended the deposition of Locke, during which Locke testified that before Sophie’s accident, Locke had concerns about the February 22, 2019, variety show at San Marcos, felt that “they” were under prepared and under rehearsed for a show with so many moving parts, and that he had discussed his concerns with Saleh and Sheldon. (Andrade Decl., ¶ 16.) During a mediation on December 4, 2024, plaintiffs and Andrade learned of a sub rosa video taken by defendants. (Id. at ¶ 17.) Though plaintiffs requested the production of documents relating to Locke’s personnel file, plaintiffs received only a two-page job description for a Theater Technician. (Id. at ¶ 22.)

Andrade asserts that he did not “complain to or press defense counsel” regarding defendants’ purportedly inadequate responses to the discovery requests prior to December 4, 2024, because Andrade believed the parties were “serious about resolving the case” at the December 4, 2024, mediation. (Andrade Decl., ¶ 18 & Exh. I [correspondence regarding mediation, selecting a mediator, and date for mediation].)

On December 12, 2024, Andrade sent a letter to defendants’ counsel for the purpose of meeting and conferring regarding defendants’ responses to the discovery requests. (Andrade Decl., ¶ 19 & Exh. J.) In that letter, Andrade suggested or requested an extension of time for plaintiffs to file motions to compel defendants’ further responses to the discovery requests. (Id. at ¶ 20 & Exh. J.) Upon receiving no response, Andrade again suggested or requested an extension of time for plaintiffs to file motions to compel. (Id. at ¶ 21 & Exh. K.)

The SBUSD separately filed oppositions to the SBUSD RFA Motion and the SBUSD SI Motion, in which the SBUSD asserts that the parties “have reached an agreement whereby [the SBUSD] will respond, without objection, to [the SBUSD SI and the SBUSD RFA], by March 17, 2025.” (Opp. SBUSD RFA Motion and SBUSD SI Motion at pp. 2, ll. 1-2.)

Saleh filed an opposition to the Saleh RFA Motion in which Saleh also asserts that the parties “have reached an agreement whereby [Saleh] will respond, without objection, to [the Saleh RFA], by March 17, 2025.” (Opp. Saleh RFA Motion at p. 2, ll. 1-2.)

In McCormick’s opposition to the McCormick FI Motion, McCormick asserts that she “inadvertently omitted” responses to the McCormick FI at issue, and contends that further responses to McCormick FI nos. 1.1, 2.1, and 12.1 through 13.2 have been provided. (Opp. McCormick FI Motion at p. 2, ll. 4-6.) McCormick further states that, except as to McCormick FI nos. 12.1 through 13.2, the further responses of McCormick to the McCormick FI do not include objections. (Id. at p. 2, ll. 6-7.)

In addition, the SBUSD separately filed a substantive opposition to the SBUSD RFP Motion which is ostensibly supported by a declaration of its counsel, Cyrus Khosh-Chashm (Khosh-Chashm). Khosh-Chashm asserts that the discovery at issue includes over 363 different requests. (Khosh-Chashm Decl., ¶ 3.)

Khosh-Chashm further states that, at the outset of this litigation, his office met with Locke at the instruction and on behalf of the SBUSD, while Locke was still employed with the SBUSD. (Khosh-Chashm Decl., ¶ 2.) For this reason, Khosh-Chashm contends, the documents sought by plaintiffs involve or reflect counsel’s impressions, conclusions, opinions, legal research, and theories, and contain privileged information which the SBUSD does not waive. (Ibid.) Khosh-Chashm also asserts that revealing the identity of witnesses who provided statements would disclose counsel’s impressions about this case because defendants obtained these statements at the direction and on behalf of Khosh-Chashm’s office. (Id. at ¶ 6.)

In addition, Khosh-Chashm asserts that his office retained a licensed investigator to conduct surveillance of Sophie for the purpose of testing Sophie’s claims in this action. (Khosh-Chashm Decl., ¶ 4.) Khosh-Chashm contends that the first time plaintiffs discovered the existence of this surveillance was at a mediation held on December 6, 2024, when plaintiffs were shown a “clip” of the surveillance which, according to Khosh-Chashm, revealed that Sophie had not been truthful regarding the nature and extent of her alleged injuries. (Ibid.) Khosh-Chashm asserts that this “revelation set off the maelstrom of [p]laintiffs’ motions to compel.” (Ibid.)

Analysis:

(1) The SBUSD RFA Motion, SBUSD SI Motion, and Saleh RFA Motion

Apart from the representations further detailed above regarding the SBUSD and Saleh’s respective agreements to provide, by March 17, 2025, objection-free responses to the SBUSD RFA, the SBUSD SI, and the Saleh RFA at issue, neither the SBUSD nor Saleh advance or offer any reasoned argument otherwise substantively opposing the SBUSD RFA Motion, the SBUSD SI Motion, or the Saleh RFA Motion.

The Court understands the representations made by the SBUSD and Saleh, further detailed above, as a concession by the SBUSD and Saleh that the points raised by plaintiffs in the SBUSD RFA Motion, the SBUSD SI Motion, and the Saleh RFA Motion, have merit. For this reason, the Court will grant the SBUSD RFA Motion, the SBUSD SI Motion, and the Saleh RFA Motion.

The Court will order the SBUSD to, on or before March 17, 2025, provide responses or further responses to SBUSD RFA nos. 8 through 19, 21 through 26, 28 through 33, 35, 37, 38, 40 through 42, 46, 47, 50, 53, 54, 59, 62, 64, 72, 73, 79, and 80, and SBUSD SI nos. 314 through 325, pursuant to the parties’ agreement. (See SBUSD RFA Motion and SBUSD SI Motion Sep. Stmts. [identifying by set and number the discovery requests at issue in the SBUSD RFA Motion and SBUSD SI Motion].)

In addition, the Court will order Saleh to, on or before March 17, 2025, provide responses or further responses to Saleh RFA nos. 8 through 12, 14, 18, 19, 22, 25, 29, 50, 54, and 57 through 59, pursuant to the parties’ agreement. (See Saleh RFA Motion Sep. Stmt. [identifying by set and number the discovery requests at issue in the Saleh RFA Motion].)

(2) The McCormick FI Motion

As further discussed above, in both the opposition to the McCormick FI Motion and in McCormick’s response to the separate statement submitted by plaintiffs in support of the McCormick FI Motion, McCormick contends that she has now provided responses to the McCormick FI at issue in the McCormick FI Motion. (See, e.g., McCormick Resp. Sep. Stmt. at pp. 2-4, 7, 10, & 16.)

Though plaintiffs have filed a reply to the SBUSD’s opposition to the SBUSD RFP Motion, plaintiffs offer no information or evidence to dispute that McCormick has provided responses or further responses to the McCormick FI at issue in the McCormick FI Motion. Plaintiffs also have not filed a reply or other response to the opposition of McCormick to the McCormick FI Motion.

Where a responding party provides discovery requested in a motion to compel and the moving party proceeds with the motion, the court has substantial discretion to determine how to rule on the motion based on the circumstances of the case. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) The court may take the motion off-calendar, deny the motion as moot or unnecessary, or narrow its scope to the issue of sanctions. (Id. at p. 409; see also Cal. Rules of Court, rule 3.1348(a) [sanctions may be imposed “even though … the requested discovery was provided … after the motion was filed”].)

The undisputed record indicates that McCormick has provided responses or further responses, without objections, to McCormick FI nos. 1.1 and 2.0, and provided responses or further responses to McCormick FI nos. 12.1 through 13.2, each of which are the only discovery requests at issue in the McCormick FI Motion. Plaintiffs do not include a request for an award of sanctions in the McCormick FI Motion.

Under the circumstances present here and for all reasons discussed above, the Court will deny the McCormick FI Motion as moot, without prejudice to the filing of any appropriate future motion to compel to the extent plaintiffs contend that the responses or further responses of McCormick to the McCormick FI remain deficient. The Court expects the parties to fully meet and confer in good faith to informally resolve any remaining disputes as to the McCormick FI presently at issue.

(3) The SBUSD RFP Motion

Though in the notice of the SBUSD RFP Motion, plaintiffs state that they seek an order compelling the SBUSD to respond or further respond to SBUSD RFP nos. 52 through 63, plaintiffs’ separate statement submitted in support of the SBUSD RFP Motion provides information regarding SBUSD RFP Nos. 52 through 62 only. In addition, plaintiffs have failed to submit with the SBUSD RFP Motion a full copy of the SBUSD RFP at issue.

A separate statement must provide “all the information necessary to understand each discovery request and all the responses to it that are at issue” and “be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” (Cal. Rules of Court, rule 3.1345(c).) As the separate statement submitted by plaintiffs does not include any information regarding SBUSD RFP no. 63, the separate statement is incomplete as to this request. Therefore, the Court will deny the SBUSD RFP Motion as to SBUSD RFP no. 63. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)

A motion to compel further responses to an inspection demand must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc. §2031.310, subd. (b)(1).) “[U]nless there is a legitimate privilege issue or claim of attorney work product, [the] burden [of showing good cause] is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

In SBUSD RFP nos. 52 through 62, plaintiffs request that the SBUSD produce, respectively: all “written, recorded or signed statements” of any party to this action or that party’s employees, and of “witnesses, investigators, representatives”, that concern the subject matter of this litigation; “written reports” or recordings that document or relate to any “interviews” of, or “conversations with” Locke, including reports, recordings, or interviews made or taken by the SBUSD, Khosh-Chashm, “Molly Thurmond, Amy Scott, and Pat Tombarello”; non-privileged documents contained in Locke’s employment file, including those which relate to the incident at issue in this litigation; any written reports relating to any surveillance of Sophie at any time after February 22, 2019; any video recordings, audio recordings, or photographs made or taken of Sophie at any time after February 22, 2019; and “screen shots” of any “social media” site owned by Sophie or Sophie’s “social media” friends which contain images of Sophie or “social media” comments containing references to Sophie. (SBUSD RFP Motion Sep. Stmt. at pp. 5-13.)

The term “screen shots” is defined in the SBUSD RFP to include a screen capture or screen grab which contains a digital image showing the contents of a computer or cell phone screen. (SBUSD RFP Motion Sep. Stmt. at p. 3.) The term “social media” is defined as “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos).” (Id. at p. 4.)

Plaintiffs contend that good cause exists for the documents described in SBUSD RFP nos. 52 through 62 because the SBUSD claims that Locke’s negligence caused Sophie’s injuries, and that any surveillance of Sophie is discoverable to the extent it was obtained to impeach Sophie’s testimony. (SBUSD RFP Motion Sep. Stmt. at pp. 5-13.)

Plaintiffs have offered sufficient information and evidence to show that the documents described in SBUSD RFP nos. 52 through 62 may contain information that pertain to the issues raised in this litigation, including Sophie’s claim for damages. (See, e.g., Code Civ. Proc., § 2017.010 [describing the scope of discovery].) The SBUSD offers no reasoned factual or legal argument to show why good cause does not exist for the production of the documents described in the SBUSD RFP at issue and described above. For all reasons described above, the information provided by plaintiffs is sufficient to show the potential direct relevance of the documents sought in SBUSD RFP nos. 52 through 62, and constitutes a sufficient showing of good cause for their production.

With one exception as to SBUSD RFP no. 55 further discussed below, the SBUSD includes only objections in its responses to SBUSD RFP nos. 52 through 54 and 56 through 62. “Once good cause is shown, the burden shifts to the responding party to justify its objections. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221; Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

The response of SBUSD to SBUSD RFP no. 52 includes objections that this request is “overbroad and, therefore, unduly burdensome as it is asking for every document related to this lawsuit.” (SBUSD RFP Motion Sep. Stmt. at p. 5.) SBUSD further objects to this request on the grounds that it “seek privileged documents … which may violate third-party privacy rights.” (Ibid.)

Wholly absent from the responding separate statement and opposition of the SBUSD is any reasoned argument or evidence showing “the quantum of work required” to respond to SBUSD RFP no. 52, or “an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417; see also Williams v. Superior Court (2017) 3 Cal.5th 531, 549 (Williams) [“the party opposing discovery has an obligation to supply the basis for this determination”].) The SBUSD also fails to offer any factual or legal argument showing why SBUSD RFP no. 52 does not fall within the scope of the subject matter of this litigation, does not in any way relate to the claims or issues raised by plaintiffs, or is not reasonably calculated to lead to the discovery of admissible evidence. (See Williams, supra, 3 Cal.5th at pp. 542-549.)

Also absent from the SBUSD’s opposition and responding separate statement is any information or evidence sufficient to establish any legally protected privacy interest in any document requested in SBUSD RFP no. 52, or an objectively reasonable expectation of privacy in the documents. (Williams, supra, 3 Cal.5th at p. 552.)

For all reasons further discussed above, the SBUSD has failed to justify its objections that SBUSD RFP no. 52 is overbroad, unduly burdensome, or seeks documents which may violate third-party privacy rights. Therefore, the Court will overrule these objections.

SBUSD also objects to SBUSD RFP no. 52 through 54 and 56 through 62, on the grounds that these requests violate, or seek documents subject to or protected by, the attorney client and work product privileges. (SBUSD RFP Motion Sep. Stmt. at p. 5-13.)

As to SBUSD RFP nos. 52, 53, and 54, which concern documents relating to, among other things, interviews or conversations with Locke, the SBUSD contends that Locke met with its counsel at the instruction or direction of the SBUSD and while Locke was still employed with SBUSD. (SBUSD RFP Motion Opp. Sep. Stmt. at p. 6.) Therefore, the SBUSD argues, the documents requested in SBUSD RFP nos. 52 through 54 contain or include confidential communications between the SBUSD and its counsel, and reflect its counsel’s impressions, conclusions, opinions, legal research, theories, industry, and efforts. (Id. at pp. 5-6.) For these reasons, the SBUSD argues, these documents are protected by the attorney client and work product privileges. (Ibid.)

Though SBUSD RFP no. 53 appears to request the production of “writings” made by the SBUSD’s counsel which may reflect counsel’s “impressions, conclusions, opinions, or legal research or theories” (see Code Civ. Proc., § 2018.030, subd. (a)), information provided by the SBUSD regarding the basis for its privilege objections to SBUSD RFP nos. 52 through 54 does not appear in the SBUSD’s responses to these requests. Further, it is unclear from the responses of SBUSD whether only part of the documents or materials described in SBUSD RFP nos. 52 through 54 are objectionable. By way of example, SBUSD RFP no. 52 includes statements made by Locke without regard to the manner in which these statements were made, and persons other than Locke. Moreover, the requests stated in SBUSD RFP nos. 52 through 54 also include within their scope interviews conducted by employees of SBUSD, and not its counsel.

“Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.) As plaintiffs may discovery the identity of persons identified in SBUSD RFP nos. 52 through 54 to the extent these persons possess knowledge of discoverable matter, the SBUSD has failed to sufficiently explain why the entirety of the documents or materials described in SBUSD RFP nos. 52 through 54 are privileged.

In addition, to the extent only part of the documents described in SBUSD RFP nos. 52 through 54 are objectionable, the responses of SBUSD fail to comply with Code of Civil Procedure section 2031.240, subdivisions (a) and (b)(1), under which the SBUSD must include a statement of compliance or a representation of inability to comply with the remainder of the items and to identify “with particularity” any documents “falling within any category of item in the demand to which an objection is being made.” (Code Civ. Proc., § 2031.240, subds. (a) & (b)(1).) The responses of the SBUSD to SBUSD RFP nos. 52 through 54 also fail to “provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Code Civ. Proc., § 2031.240, subd. (c()(1).)

For all reasons further discussed above, the Court will grant the SBUSD RFP Motion as to SBUSD RFP nos. 52 through 54, and require the SBUSD to serve further responses to these requests, without the objections overruled herein as to SBUSD RFP no. 52, and with the exception of objections based on privilege. The further responses of the SBUSD must be verified in compliance with Code of Civil Procedure section 2031.250, be fully code compliant in all respects including as to the provisions of Code of Civil Procedure section 2031.240, and must include sufficient factual information to enable plaintiffs and the Court to evaluate the merits of the SBUSD’s claim of privilege including, if necessary, a sufficient privilege log. (See Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130 [describing requirements for a privilege log].)

As to SBUSD RFP no. 56, in which plaintiffs request the production of written reports related to the surveillance of Sophie by the SBUSD, the SBUSD asserts that it retained a licensed investigator to conduct surveillance of Sophie which is directed specifically to test Sophie’s claims of injuries as reported or testified to in this lawsuit. (SBUSD RFP Motion Opp. Sep. Stmt. at p. 11.) The SBUSD further asserts that the existence of this surveillance was disclosed to plaintiffs. (Id. at pp. 12.)

The SBUSD contends that the disclosure of any surveillance of Sophie would inform plaintiffs of what the SBUSD has learned about Sophie’s purportedly false statements, leaving plaintiffs free to abandon or otherwise “remedy” the statements or to continue with other statements that the SBUSD has not yet uncovered, which the SBUSD contends would unfairly burden its ability to defend against Sophie’s claims and would permit plaintiffs to take undue advantage of the SBUSD’s industry and efforts. (SBUSD RFP Motion Opp. Sep. Stmt. at pp. 12 & 14.) For these reasons, the SBUSD argues, any surveillance of Sophie by the SBUSD constitutes work product that is not subject to disclosure. (Id. at p. 13.)

The SBUSD also contends that plaintiffs will not suffer prejudice if its surveillance of Sophie is protected from disclosure because Sophie knows how, when, and where she was truthful and where she was not, knows what activities she has engaged in since her fall in February 2019, and she knows with whom she has shared those activities. (SBUSD RFP Motion Opp. Sep. Stmt. at p. 14.) In addition, the SBUSD contends that the surveillance videos will be used only if and to the extent plaintiffs testify at trial as to injuries that are shown to not exist, or any inability to engage in activities in which Sophie claims she cannot engage. (Id. at pp. 14-15.) Because plaintiffs are not seeking to discover information which is unknown to plaintiffs or exclusively in the possession of the SBUSD, and as plaintiffs can avoid disclosure of any surveillance of Sophie by testifying truthfully at trial as to Sophie’s injuries and their effects, the SBUSD argues, plaintiffs will not be prejudiced by any nondisclosure of any surveillance of Sophie and instead will gain an undue and unfair advantage over the SBUSD to the extent plaintiffs use the surveillance to unfairly tailor their trial testimony. (Ibid.)

The SBUSD asserts the same arguments further described above to support its objections to SBUSD RFP nos. 57 through 59, which seek the production of audio and video recordings of Sophie and photographs.

Surveillance materials do not constitute privileged communications. (Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166, 176-177 (Suezaki).) The SBUSD fails to explain why any surveillance of Sophie sought in the SBUSD RFP qualifies as a “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories….” (Code Civ. Proc., § 2018.030, subd. (a).)

To the extent the SBUSD contends that all surveillance of Sophie is entitled to protection under Code of Civil Procedure section 2018.030, subdivision (b), which applies to the “work product of an attorney, other than a writing described in subdivision (a)”, if the disclosure of an attorney’s work product would allow the opposing party to take undue advantage of the attorney’s efforts or impair the privacy necessary for the attorney to investigate aspects of the case, qualified protection applies. (Code Civ. Proc., § 2018.030, subd. (b); Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 4725.)

“The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (Code Civ. Proc., § 2018.030, subd. (b); see also American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 594 [the work product rule creates “a qualified privilege against discovery of a general work product and an absolute privilege against disclosure of documents containing the attorney’s ‘impressions, conclusions, opinions, or legal theories.’”].) The term “work product” is left to judicial interpretation. (Coito v. Superior Court (2012) 54 Cal.4th 480, 494 (Coito).) Whether specific material constitutes work product must be resolved on a case-by-case basis. (Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 135; see also Suezaki, supra 58 Cal.2d at pp. 178-179 [general discussion regarding the facts the trial court may consider].) 

A party asserting the attorney work product privilege has the burden of proving preliminary facts demonstrating the doctrine applies to the information or material in question. (League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 993; see also Mize v. Atchison, T. & S. F. Ry. Co. (1975) 46 Cal.App.3d 436, 447–448 [a “preliminary fact” is “a fact upon which depends the admissibility or inadmissibility of evidence and includes therein such facts as show the existence of a privilege”]; Coito, supra, 54 Cal.4th at pp. 495-496 [upon adequate foundational showing that disclosure would reveal attorney work product, the trial court “should then determine, by making an in camera inspection if necessary, whether absolute work product protection applies to some or all of the material”].) Once the preliminary facts necessary to support a claim of privilege are established, the opponent bears the burden of establishing that the privilege does not apply. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 732.)

The SBUSD has failed to show why all of the documents and materials described in SBUSD RFP nos. 56 through 59, are, by themselves, privileged. The SBUSD also fails to cite any binding authority holding that, absent the existence of preliminary facts establishing a claim of privilege, all surveillance is protected from disclosure.

For example, the SBUSD has not set forth in its responses to SBUSD RFP nos. 56 through 59, any preliminary facts, including any underlying facts referenced within a qualifying communication, which would support a claim that all of the documents or materials described in these requests are protected by the attorney client or work product privilege. Therefore, neither the Court nor plaintiffs can determine whether the privilege asserted by the SBUSD applies, or whether there exist discoverable documents or other materials within the scope of the requests stated in SBUSD RFP nos. 56 through 59. (Coito, supra, 54 Cal.4th at p. 495 [discussing essential facts necessary to inform the court’s analysis of whether absolute or qualified work product privileges apply].)

For all reasons discussed above, the Court will grant the SBUSD RFP Motion as to SBUSD RFP nos. 56 through 59, and require the SBUSD to provide verified further responses to these requests. The verified further responses of the SBUSD shall include any preliminary facts which are necessary to support a claim that any documents or materials sought by these requests are protected by either an absolute or qualified work product privilege. In addition, to the extent the SBUSD has withheld from its production any documents based on the attorney client privilege, the verified further responses must also include all facts necessary to support a claim based on that privilege. The preliminary facts must also be sufficient to enable plaintiffs and, if necessary, the Court, to determine whether any privilege asserted by the SBUSD applies, or whether there exist discoverable underlying material referenced within a qualifying communication.

As to SBUSD RFP nos. 60 through 62, the SBUSD advances in its responding separate statement effectively the same arguments as those further discussed above with respect to SBUSD RFP nos. 56 through 59. The same analysis and reasoning apply.

For all reasons discussed above, the Court will also grant the SBUSD RFP Motion as to SBUSD RFP nos. 60 through 62, and require the SBUSD to provide verified further responses to these requests which must also include any preliminary facts necessary to support a claim that any documents or materials are protected by either a work product privilege, or the attorney-client privilege. As noted above, the preliminary facts or information included in the further responses must be sufficient to enable plaintiffs and, if necessary, the Court, to determine whether any privilege asserted by the SBUSD applies, or whether there exist discoverable documents or materials, including those referenced within a qualifying communication.

SBUSD’s further responses to SBUSD RFP nos. 56 through 54 and 56 through 62, as ordered herein, must also otherwise fully comply with applicable code requirements.

Noted above, SBUSD’s response to SBUSD RFP no. 55 does not include any objections. In its response to this request, the SBUSD states that “[d]espite a diligent search and a reasonable inquiry to comply with the demand, [the SBUSD] is unable to comply because to the extent that there are any responsive documents, they have already been produced. (SBUSD RFP Motion Sep. Stmt. at p. 8.)

The Court understands SBUSD’s response to SBUSD RFP no. 55 to indicate or suggest that documents responsive to this request exist. Therefore, it is unclear to the Court on what basis the SBUSD contends that it is unable to comply with this request. (See, e.g., Code Civ. Proc., § 2031.230 [describing contents of required statement].) Further, to the extent documents responsive to SBUSD RFP no. 55 exist as suggested by SBUSD’s response, the SBUSD has failed to include a statement of compliance as required by Code of Civil Procedure section 2031.210 and 2031.220.

For all reasons discussed above, the Court finds that SBUSD’s response to SBUSD RFP no. 55 is deficient and fails to fully comply with code requirements. Therefore, the Court will also grant the SBUSD RFP Motion as to this request, and order the SBUSD to serve a verified, code compliant further response to SBUSD RFP no. 55.