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1 GREENBERG AND RUBY
INJURY ATTORNEYS, APC
2 EMILY RUBY – SBN 289433
eruby@caltrialpros.com
3 SERGIO R. CARDENAS – SBN 321239
scardenas@caltrialpros.com
4 6100 Wilshire Boulevard, Suite 1170
Los Angeles, California 90048
5 Tel. No.: (323) 782-0535
Fax No.: (323) 782-0543
6
ALPERS LAW GROUP, INC.
7 RICHARD C. ALPERS - SBN 254646
8 PO BOX 1540
APTOS, CA 95001
9 Tel. No: (855) 808-1174
Fax No: (855) 870-1129
10 Email: rca@alperslawgroup.com
11 Attorneys for Plaintiffs,
LOUIS MONTANO, JR.;
12 LOUIE MONTANO III; and MICHAEL MONTANO
13
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 COUNTY OF MONTEREY
16 LOUIS MONTANO, JR.; LOUIE MONTANO III; Case No.: 21CV003635
and MICHAEL MONTANO, Assigned to: Hon. Carrie M. Panetta
17 Dept. 14
18 Plaintiffs,
vs. PLAINTIFF MICHAEL MONTANO’S
19 SEPARATE STATEMENT IN SUPPORT
OF OPPOSITION TO DEFENDANT’S
CITY OF SALINAS; GINO’S RESTAURANT, MOTION TO COMPEL DEPOSITION
20
INC.; GINO’S FINE ITALIAN FOOD, INC.; RESPONSES
21 BLFA PROPERTIES LLC; NTN PROPERTIES
LLC; NGOCHAO THI NGUYEN; RALPH [Filed concurrently with Plaintiffs’
22 BOZZO; ROSAURA ARCOS PANIAGUA; Memorandum of Points and Authorities; and
Declaration of Sergio R. Cardenas with
23 AUSTIN ALARCON; and DOES 1-35, Exhibits]
24 Defendants. Date: May 19, 2023
25 Time: 8:30 am
AND RELATED CROSS-ACTIONS Dept.: 14
26
Action Filed: November 16, 2021
27 Trial: August 28, 2023
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1
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 Pursuant to the provisions of California Rule of Court 3.1345, Plaintiff Michael Montano submits
2 this Separate Statement in support of his Opposition to Defendants’’ Motion to Compel Deposition
3 Responses.
4 DEPOSITION TESTIMONY IN DISPUTE
5 Question and discussion from the deposition of Plaintiff MICHAEL MONTANO, Volume I,
6 which occurred on December 20, 2022.
7 PAGE:LINE 47:11-52:15
8 MS. ELZA: Okay. Did you have to receive any -- or did you receive any type of therapy or counseling
9 to assist you in being able to, you know, return to driving?
10 MS. RUBY: Objection. We're not making a claim for extreme emotional distress or any treatment related
11 to any emotional stress or anxiety?
12 MS. ELZA: Okay. But if he had counseling or if he received therapy to be able to return to driving, I
13 think I still get to ask about it because it's part of his treatment.
14 MS. RUBY: That's exactly what I said, not part of his treatment, so I'm going to instruct him not to
15 answer. We're not making a claim for that.
16 BY MS. ELZA: So how long -- Are you still receiving treatment and therapy today for the anxiety that
17 you suffer from when driving?
18 MS. RUBY: Object to form. Assumes facts not in evidence. Seeks information that's not relevant or
19 reasonably calculated to lead to the discovery of admissible evidence and unreasonable invasion of
20 privacy. I'm going to instruct him not to answer.
21 BY MS. ELZA: Mr. Montano, were you able to return to driving without therapy or counseling?
22 MS. RUBY: Same objections and same instructions.
23 MS. ELZA: Well, if I can't even determine – I mean, you're -- you're basically telling me he treated, but
24 you're just not going to let me know what that is and I still don't understand why. I mean, you don't get
25 to cherry pick his treatment. If he treated with someone and it's for the anxiety, I don't really understand
26 why we don't get to -- why that's not part of -- of the discovery process.
27 MS. RUBY: It's not your claim and it's not your complaint, so you don't get to choose.
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2
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 MS. ELZA: But it -- but it is. He's asking for -- he's asking for emotional distress from the accident. And
2 he's -- he's articulated, Counsel, that his -- his emotional distress is anxiety, right? And you're now telling
3 me for the first time, because it wasn't in his discovery responses, that he did go through some type of
4 counseling or therapy.
5 MS. RUBY: Listen to what -- listen to what you just said which is exactly my point. It's not in his
6 discovery responses. And me objecting to that -- if you ask the witness, did you kill your dog yesterday,
7 that's just completely irrelevant. I would not –
8 MS. ELZA: Counsel, he's claiming anxiety from the accident. The dog wouldn't have anything to do with
9 this.
10 MS. RUBY: Right, but I'm telling you just the fact that I'm instructing him not to answer doesn't mean
11 that what you're –
12 MS. ELZA: Of course it does.
13 MS. RUBY: -- assuming is true.
14 MS. ELZA: Of course it does because his answer is no. If he didn't go to counseling and therapy, then
15 why wouldn't he just say, no, ma'am, I did not. No. That's it. That's the answer.
16 MS. RUBY: I'm his -- I'm his attorney and I'm instructing him not to answer.
17 MS. ELZA: Okay. We'll certify. We'll take it -- we'll take it up on a motion to compel.
18 MS. RUBY: Based on what? Let's have a meet and confer. How is that relevant when we're not claiming
19 that?
20 MS. ELZA: Because you're claiming anxiety. And if he's treated for -- and that's what you're claiming,
21 that's his whole -- I mean -- and I'll go through the rest of it. Like, it's detailed in his response. So if he's
22 treated for that –
23 MS. RUBY: That's –
24 MS. ELZA: Hang on. If he's treated for that, then -- then we're entitled to look at the next part of his
25 claim. You don't get to say, oh, he treated, but I'm going to hide -- you don't get to look at these records,
26 right? Because that immediately means to me there's something you don't want us to see. And it's kind
27 of ridiculous. I mean, it benefits his case, right? Like, it benefits his damage case. If you're asking for
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 policy limits, which I think is what's coming, then why wouldn't you say, yeah, he treated. And you can
2 cherry pick them, right? You can say, Laurie, I'll give you -- I mean, at this point you won't even let us -
3 - you won't even let us subpoena records. So, yeah, I mean, I'm just -- I don't get it. I don't -- I don't
4 understand how you can say it's anxiety, he has it, here's all the awful things he's still going through.
5 You're acting as if he hasn't been treated, but he has. Right? I mean, he has.
6 MS. RUBY: No one said that. No one said that.
7 MS. ELZA: Okay. Then why can't he answer the question? If he has not been treated, Counsel, why are
8 you even making an objection?
9 MS. RUBY: We're not making a claim for treatment related to his anxiety or emotional distress.
10 MS. ELZA: But then why does he get to testify to something, right? He gets to testify, and you're going
11 to put him on the stand. You're going to have him testify to this when he's been -- when clearly, you're
12 objecting to the treatment so he's been treated, right? And I don't know if he's still treating because you
13 won't even let him answer that. So I don't -- I don't follow how this is not -- I don't follow. But let's do
14 this. I'll certify -- I'll certify the question. We'll file a motion to compel. And let's take a break. It's like
15 12:37; we've been going an hour.
16 MS. RUBY: I think it's worth looking at Code of Civil Procedure Section 2032.320 Subsection (C).
17 MS. ELZA: Okay.
18 MS. RUBY: That plaintiff can stipulate that no claim being made for mental or emotional distress over
19 and above what is usually associated with physical injuries claimed and no expert testimony regarding
20 the usual mental distress –
21 MS. ELZA: Right. Right, Counsel, but that's not the issue here.
22 MS. RUBY: That's exactly the issue.
23 MS. ELZA: He's claiming -- he's claiming anxiety. He's claiming that he suffers still from anxiety, so I
24 just asked him if he treated and you're like, no, you don't get to know if he treated. Well, we do get to
25 know if he treated. I understand that you're saying we're not asking for emotional distress above and
26 beyond, but you have made his anxiety when driving, eating at a restaurant and in large, crowded groups
27 of people, that's now at issue because you –
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 MS. RUBY: Right. And it shows garden variety distress associated with his physical injuries that were
2 claimed.
3 MS. ELZA: Right. And if he treated for it, we get to see it. And we'll file -- we'll file the motion. We'll
4 file the motion.
5 116:25-117:14
6 MS. ELZA: Okay. All right. Okay. That was... The other question that I'm going to ask you is prior to
7 this incident, had you ever received any type of counseling or therapy or other treatment for anxiety?
8 MS. RUBY: I'm going to object. It's not relevant or reasonably calculated to lead to the discovery of
9 admissible evidence. Unreasonable invasion of privacy. I'm going to instruct him not to answer.
10 MS. ELZA: OK. Mr. Montano, are you going to follow your attorney's advice and not answer that
11 question?
12 WITNESS: Yes.
13 MS. ELZA: OK. All right. I have no further questions. Thank you.
14 REASONS WHY PLAINTIFF SHOULD BE COMPELLED TO ANSWER THESE
15 QUESTIONS:
16 The information sought from Plaintiff is not protected by privilege, and in fact, at no point during
17 Plaintiff’s deposition regarding this line of questioning did Plaintiff’s counsel ever object based on
18 privilege. The trial court in Stewart v. Colonial Western Agency, Inc., (2001) 87 Cal.App.4th 1006, held
19 that it was not the attorney's job to instruct the witness not to answer questions, "unless the matter is
20 privileged...you don't assume the role of judge and instruct the witness not to answer a question at
21 deposition." Id. at 1011. The Court of Appeal upheld the lower court's ruling and held that: "Any party
22 may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved
23 in the pending action...if the matter is itself admissible in evidence or appears reasonably calculated to
24 lead to the discovery of admissible evidence." Id. at 1012. Further, any party may obtain discovery that
25 is relevant to the subject matter involved in the action, even if it is not admissible. (California Code of
26 Civil Procedure § 2017.010.)
27 The information sought from Plaintiff is relevant and is likely to lead to the discovery of
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 admissible evidence. "For discovery purposes, information is relevant if it 'might reasonably assist a party
2 in evaluating the case, preparing for trial, or facilitating settlement....' [Citation.] Admissibility is not the
3 test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence.
4 [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular
5 belief), fishing expeditions are permissible in some cases." (Gonzalez v. Superior Court (1995) 33
6 Cal.App.4th 1539, 1546, 39 Cal.Rptr.2d 896, quoting Weil & Brown, Cal. Practice Guide, Civil
7 Procedure Before Trial, (The Rutter Group 1994) Discovery, P 8:66.1, p. 8C-1.) Id. at 1012-2013.
8 The questions posed by counsel for Defendants is directly relevant to the issues at hand. Here,
9 information surrounding the Plaintiff and his emotional state is relevant because Plaintiff claims he “is
10 not making a claim for emotional distress, anxiety, depression, PTSD and/or other psychological or
11 emotional injury above that usually associated with the physical injuries claimed. Tri State prescribed
12 pills escitalopram for anxiety and sleeping problems as result of the incident.”
13 (Michael Montano’s Supplemental Responses to NTN Properties, LLC’s Special Interrogatory, Set 1,
14 Response No. 2.) (See p. 4; lines 23-24; Ex D at ¶ 11 to Zumstein Decl.) (emphasis added.)
15 Plaintiff has admitted that he is making an emotional distress claim, which will include general
16 damages, that is “usually associated with the physical injuries claimed.” Furthermore, Michael Montano
17 admits in his discovery response that he was prescribed pills for “anxiety and sleeping problems as a
18 result of the incident.” (Id.)
19 For the foregoing reasons, it is clear that Plaintiff’s counsel improperly acted as the arbiter of
20 what information will be deemed admissible at trial as a way to prevent Plaintiff from answering
21 questions. As noted in Stewart, unless the matter is privileged, a party may obtain discovery, through
22 deposition questions, so long as the question may lead to the discovery of admissible evidence. This is
23 textbook misuse of the discovery process. Therefore, Defendants move to compel further responses from
24 Plaintiff to the questions cited from Plaintiff’s deposition in this statement.
25 PLAINTIFF’S RESPONSE IN OPPOSITION:
26 Well-established law in this state prohibits the type of discovery sought by the Defendants, when
27 a Plaintiff is claiming only garden variety emotional distress, as in this case. In Davis v. Superior Ct.
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 (1992) 7 Cal. App. 4th 1008, the Court of Appeal held, “that the mere act of filing a personal injury action
2 asking for general damages for pain and suffering does not tender the plaintiff's mental condition so as
3 to make discoverable post-injury psychotherapeutic records.” (Davis, at 1011.) In determining whether
4 one has waived the right of privacy by bringing suit, our Supreme Court has noted that although there
5 may be an implicit partial waiver, the scope of such waiver must be narrowly, rather than expansively
6 construed, so that plaintiffs will not be unduly deterred from instituting lawsuits by fear of exposure of
7 private activities. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842, quoting Britt v. Superior
8 Court (1978) 20 Cal.3d 844, 859.) An implicit waiver of a party's constitutional rights encompasses only
9 discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the
10 lawsuit. (Vinson v. Superior Court, supra, 43 Cal.3d at p. 842.)
11 There must be a compelling and opposing state interest justifying the discovery. (Britt v. Superior
12 Court, supra, 20 Cal.3d at p. 855.) Even when discovery of private information is found directly relevant
13 to the issues of ongoing litigation, it will not be automatically allowed; there must then be a careful
14 balancing of the compelling public need for discovery against the fundamental right of privacy. (Binder
15 v. Superior Court (1987) 196 Cal.App.3d 893, 900.)
16 In Davis, the court explained:
We recognize that an allegation of pain and suffering from a physical injury
17 permits a party to recover for a range of emotional injuries. Pain
18 and suffering have included physical pain, fright, nervousness, grief,
anxiety, worry, mortification, shock, humiliation, indignity,
19 embarrassment, apprehension, terror and ordeal. (Capelouto v. Kaiser
Foundation Hospitals (1972) 7 Cal.3d 889, 892–893.) However, our
20 Supreme Court has recognized that the extent to which a mental component
may be in issue in a particular suit depends upon the facts of a particular
21
case. (Cf. Roberts v. Superior Court, supra, 9 Cal.3d 330, at 338–339.)
22
Further, as the court in Roberts v. Superior Court (1973) 9 Cal. 3d 330 stated:
23
“We must of course recognize that any physical injury is likely to have a
24 ‘mental component’ in the form of the pain suffered by the injured person,
at least insofar as he is conscious of the physical injury. Presumably, the
25 perception of pain from a particular injury will vary among individuals.
Thus, in every lawsuit involving personal injuries, a mental component may
26
be said to be at issue, in that limited sense at least. However, to allow
27 discovery of past psychiatric treatment merely to ascertain whether the
patient's past condition may have decreased his tolerance to pain or whether
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
the patient may have discussed with his psychotherapist complaints similar
1 to those to be litigated, would defeat the purpose of the privilege established
2 by section 1014.” (Roberts v. Superior Court, supra, at p. 339.)
There is no disputed fact in consequence to the determination of this action concerning any
3
psychological injury because Plaintiff is not claiming a psychological injury. Instead, Plaintiff is merely
4
claiming emotional distress normally associated with the physical injuries of the type he sustained. That
5
by no means opens the doors to Plaintiff's psychiatric history, as recognized by the Supreme Court in
6
Roberts.
7
The information Defendant claims to need has been provided through discovery responses, meet
8
and confer correspondence, and during Michael Montano’s deposition. On August 30, 2022, Plaintiff
9
Michael Montano (“Plaintiff”) served discovery responses to Defendant NTN Properties, LLC’s
10
(“NTN”) Special Interrogatories (“SROGS”), Set One, on all Defendants, including the moving party.
11
SROGS no. 2 asks “IDENTIFY each HEALTH CARE PROVIDER who has treated YOU for emotional
12
distress, anxiety, depression, PTSD and/or other psychological or emotional injury which YOU contend
13
was caused by the INCIDENT”. In response, Plaintiff answered “Plaintiff is not making a claim for
14
emotional distress, anxiety, depression, PTSD and/or other psychological or emotional injury above
15
that usually associated with the physical injuries claimed”.
16
On September 15, 2020, NTN’s counsel, Laurie Elza, sent a meet and confer correspondence
17
regarding all three Plaintiffs’ discovery responses, that is Louis Montano Jr., Loui Montano III and
18
Michael Montano (for the purpose of this Opposition, this Memorandum will focus on Michael’s
19
responses). In said correspondence defense counsel requested supplemental responses to SROGS no. 2,
20
among other discovery requests, stating that:
21
“If your clients have received treatment (e.g. medication, therapy,
22 psychological/psychiatric consults, counseling, etc.) for emotional distress, anxiety,
depression, PTSD, or other psychological or emotional injury due to the incident, the
23 identities of the medical providers are discoverable. Your clients’ respective responses are
not responsive and are not Code compliant. They either did receive treatment or they did
24
not. If they did not, then provide a verified, supplemental response for each which states
25 that no treatment was received. If they did and you are refusing to disclose the same, please
advise and we can address that issue in a further meet and confer.”
26
On September 23, 2022, Plaintiff’s counsel sent a meet and confer letter addressing the issues
27
raised by defense counsel, Laurie Elza, on her correspondence of September 15, 2022, reflecting a good
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 faith effort to participate in the meet and confer process. With respect to SROGS no. 2, Plaintiffs’ counsel
2 stated his correspondence that, “Plaintiff will provide a supplemental response. Plaintiffs are not
3 making a claim for psychological and/or emotional injuries as a result of the incident”.
4 On November 28, 2022, Plaintiff Michael Montano served supplemental discovery responses to
5 Defendant NTN Properties, LLC’s SROGS, Set One, on all Defendants, including the moving party. In
6 his supplemental response to SROGS no. 2, Plaintiff stated “Plaintiff is not making a claim for emotional
7 distress, anxiety, depression, PTSD and/or other psychological or emotional injury above that usually
8 associated with the physical injuries claimed. At this time Plaintiff is not claiming treatment for the
9 identified conditions. Discovery is going on and Plaintiff’s reserves the right to supplement this
10 discovery response.” After all Defendants were served with Michael Montano’s supplemental responses,
11 Defendants did not engage in a further meet and confer following receipt of Plaintiffs’ supplemental
12 responses.
13 The moving party proceeded to file the present motion to compel. Defendants’ Separate Statement
14 cites Michael Montano’s Supplemental Responses to NTN Properties, LLC’s Special Interrogatory, Set
15 1, Response No. 2 [(Ex D at ¶ 11 to Zumstein Decl.) (emphasis added.)] to support the basis for this
16 motion, based on the following:
17
“Plaintiff is not making a claim for emotional distress, anxiety, depression, PTSD and/or
18 other psychological or emotional injury above that usually associated with the physical
19 injuries claimed. Tri State prescribed pills escitalopram for anxiety and sleeping problems
as result of the incident”.
20
21 As Defendants know, this statement was not in the initial responses served on August 30, 2022
22 (Exhibit 1 to Cardenas Decl.), and was a typo made at the time the supplemental responses of Miachel
23 Montano and Louie Montano III were drafted. A whole review of Plaintiff’s responses from August 30,
24 2022 and supplemental responses from November 28, 2022, show that said statement was typo. Michael
25 Montano identified Natividad Medical Center, Salinas Valley Radiologists, Inc., and Shepherd Eye
26 Center as the medical providers that treated him as result of the subject incident. Nowhere else in Plaintiff
27 Michael Montano’s discovery responses in this case identify Tri State as a medical provider for Michael
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 Montano. As Defendants know, Tri-State provided treatment to Michael Montano’s grandfather, Plaintiff
2 Louie Montano III, not Michael Montano. Michael Montano’s supplemental response to NTN’s Special
3 Interrogatory, Set One, Interrogatory No. 2, clearly states that Michael Montano is not claiming treatment
4 for emotional distress, anxiety, depression, PTSD and/or other psychological or emotional injury...
5 (Exhibit D to Zumstein Decl.).
6 On December 20, 2022, Plaintiff Michael Montano was deposed. During his deposition, defense
7 counsel questioned him regarding “his general damages claim associated with anxiety, any counseling or
8 other treatment”. Mr. Montano confirmed he has not had any treatment related to the subject incident
9 other than the hospital the date of the incident, and a doctor related to his eye injury. (See, Deposition
10 Transcript at 95:3-18). He also explained that what he meant by “anxiety” was feeling uncomfortable
11 driving and in crowds, and that in order to attempt to address it he has spoken with family members and
12 tried taking his college classes on campus instead of online. (Depo., at 99:23-100:1, 101:11-22, 119:2-
13 10, 137:2-8, 139:9-140:18) Further, he testified he does not have a history of anxiety. (Depo., at 144:14-
14 22)
15 There are no new issues or facts in this case on which Plaintiff needs to be examined during a
16 subsequent deposition. Defendants are simply attempting to blur the court’s vision with inapplicable
17 case law and a misleading and incorrect suggestion that Plaintiff has waived his right to privacy in this
18 civil lawsuit. Clearly, this constituted a misuse and abuse of discovery.
19 PAGE:LINE 64:4-21
20 MR. ZUMSTEIN: Okay. When did you first learn that your grandfather had been suffering from some
21 health-related issues?
22 MS. RUBY: Object as to form. Vague as to time. Unlimited as to time. When are you referring to? And
23 what health issues are you referring to?
24 MR. ZUMSTEIN: Okay. Michael, do you understand the question?
25 MS. RUBY: I'm going to instruct him not to answer that question.
26 MR. ZUMSTEIN: Okay. Madam Reporter, I'm going to take an e-copy of this transcript as well. I will
27 be filing my own motion. Thanks. Michael, you're a plaintiff in this case; right?
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 MS. RUBY: Objection. Rifkin. This is improper questions for a deposition and harassing.
2 PAGE:LINE 65:11-68:20
3 Q. Michael, have you read a copy of the complaint that you're a plaintiff in?
4 MS. RUBY: Objection to the extent it calls for attorney-client privileged communications.
5 MR. ZUMSTEIN: You can answer, Michael.
6 MS. RUBY: You can answer if it's anything other than something that either Mr. Alper's office or my
7 office has told you.
8 THE WITNESS: I don't understand the question.
9 BY MR. ZUMSTEIN: Do you know what a plaintiff is?
10 MS. RUBY: Objection. This is harassing, argumentative. Rifkin. Improper. Object to form. Where are
11 you going –
12 MR. ZUMSTEIN: You can answer, Michael.
13 MS. RUBY: No. Where are you going with this, Matt?
14 MR. ZUMSTEIN: It's called discovery, Emily.
15 BY MR. ZUMSTEIN: Michael, are you a plaintiff in this case?
16 MS. RUBY: I am going to instruct him not to answer this entire line of questioning. You're harassing
17 him. MR. ZUMSTEIN: Oh, great. Michael, you're suing somebody, right, for these injuries as a result of
18 this incident?
19 MS. RUBY: Objection. Argumentative. Harassing. Rifkin. I'm going to instruct him not to answer.
20 MR. ZUMSTEIN: Okay, Counsel. Let me get this straight. Your client is suing the restaurant owner. I'm
21 asking, is he suing the restaurant owner and you're telling him he can't answer the question.
22 MS. RUBY: You literally just said that he is.
23 MR. ZUMSTEIN: I'm asking him to confirm it, Counsel.
24 MS. RUBY: No. You said, are you suing somebody, so you didn't ask him. You can ask him a specific
25 question.
26 BY MR. ZUMSTEIN: Are you suing somebody, Michael, as a result of this incident?
27 MS. RUBY: I'm going to object. This is harassing. Argumentative. Rifkin. Improper.
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PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 MR. ZUMSTEIN: Are you going to instruct him not to answer whether or not he's suing somebody as a
2 result of the incident?
3 MS. RUBY: We all know he is. And, Michael, you can answer that question. I'm not going to allow this
4 to continue, but you can answer that question. Go ahead.
5 THE WITNESS: Yes
6 BY MR. ZUMSTEIN: Why are you suing the restaurant?
7 MS. RUBY: No. That is Rifkin. Improper. Object to form. Harassing. Argumentative. It calls for
8 attorney-client communications. I'm going to instruct him not to answer. And I'm going to have to
9 (inaudible) it up if this continues. This is ridiculous.
10 BY MR. ZUMSTEIN: Michael, did you ever at any point in time in your life ever know whether or not
11 your grandfather ever had any health conditions?
12 MS. RUBY: Object. Irrelevant. Seeks medical information that's not relevant or reasonably calculated to
13 lead to the discovery of admissible evidence. Unlimited to time and scope and unreasonable invasion of
14 privacy. Foundation. And I'm going to instruct him not to answer.
15 BY MR. ZUMSTEIN: Michael, as you sit here today, do you know if your grandfather currently at this
16 moment in time on December 20th at 1:06 p.m. has any health-related conditions?
17 MS. RUBY: I'm going to object that it seeks irrelevant medical information that's not relevant or
18 reasonably calculated to lead to the discovery of admissible evidence. Unreasonable invasion of privacy
19 and foundation. I'm going to instruct him not to answer.
20 MR. ZUMSTEIN: Okay. I'm going to stop my questioning and reserve it when we bring him back and
21 you pay attorney's fees.
22 REASON WHY PLAINTIFF SHOULD BE COMPELLED TO ANSWER THESE QUESTIONS:
23 The information sought from Plaintiff is not protected by privilege, and in fact, at no point during
24 Plaintiff’s deposition regarding this line of questioning did Plaintiff’s counsel ever object based on
25 privilege. The trial court in Stewart v. Colonial Western Agency, Inc., (2001) 87 Cal.App.4th 1006, held
26 that it was not the attorney's job to instruct the witness not to answer questions, "unless the matter is
27 privileged...you don't assume the role of judge and instruct the witness not to answer a question at
28
12
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 deposition." Id. at 1011. The Court of Appeal upheld the lower court's ruling and held that: "Any party
2 may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved
3 in the pending action...if the matter is itself admissible in evidence or appears reasonably calculated to
4 lead to the discovery of admissible evidence." Id. at 1012. Further, any party may obtain discovery that
5 is relevant to the subject matter involved in the action, even if it is not admissible when it appears
6 reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) The information
7 sought from Plaintiff is relevant and is likely to lead to admissible evidence. "For discovery purposes,
8 information is relevant if it 'might reasonably assist a party in evaluating the case, preparing for trial, or
9 facilitating settlement....' [Citation.] Admissibility is not the test and information unless privileged, is
10 discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied
11 liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are
12 permissible in some cases." (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, 39
13 Cal.Rptr.2d 896, quoting Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial, (The Rutter
14 Group 1994) Discovery, P 8:66.1, p. 8C-1.) Id. at 1012-2013.
15 The questions posed by counsel for Defendants are directly relevant to the issues at hand.
16 Throughout the deposition, Michael Montano said he couldn’t understand questions that we asked to lay
17 a foundation to ask supplemental questions. For example,
18 MR. ZUMSTEIN: Michael, have you read a copy of the complaint that you're a plaintiff in?
19 MS. RUBY: Objection to the extent it calls for attorney-client privileged communications.
20 MR. ZUMSTEIN: You can answer, Michael.
21 MS. RUBY: You can answer if it's anything other than something that either Mr. Alper's office or my
22 office has told you.
23 THE WITNESS: I don't understand the question.
24 BY MR. ZUMSTEIN: Do you know what a plaintiff is?
25 MS. RUBY: Objection. This is harassing, argumentative. Rifkin. Improper. Object to form. Where are
26 you going –
27 MR. ZUMSTEIN: You can answer, Michael.
28
13
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 MS. RUBY: No. Where are you going with this, Matt?
2 MR. ZUMSTEIN: It's called discovery, Emily. Michael, are you a plaintiff in this case?
3 MS. RUBY: I am going to instruct him not to answer this entire line of questioning. You're harassing
4 him. (Depo pgs 65:11-66:8)
5 In order to ask the witness about what if any factual information he has to support his claim that
6 the incident occurred claims against the Defendants, it’s necessary to lay the foundation that he knows
7 what the claims are so questions can be asked as to what if any evidence (testimonial hearsay statements
8 from his grandfather, from his father after his father was injured, what he observed during the incident
9 that has led to his claim of anxiety) is known to support those claims. When the witness says, “I don’t
10 understand the question” when asked “Have you read the complaint?” which is the document outlining
11 his claims against the Defendants, more foundation must be obtained to be able to determine if the witness
12 has the capacity to understand the questions or whether or not an IME is necessary because of what
13 appears to be an inability to understand a few fundamental questions.
14 Here, Plaintiff’s counsel objected on numerous grounds: “This is harassing, argumentative.
15 Rifkin. Improper. Object to form.”
16 In Rifkind the court reasoned as follows:
We emphasize at the outset what we are not discussing: questions at a deposition asking the person
17 deposed about the basis for, or information about, a factual conclusion or assertion, as distinguished from
18 the basis for a legal conclusion. Thus, if a deponent says that a certain event happened at a particular time
or place, it is quite proper to ask the person, at deposition, how he or she became aware of it, his or her
19 knowledge about it, and for similar information of a factual nature. (Rifkind v. Superior Court (1994)
22 Cal.App.4th 1255, 1259.) (emphasis added.)
20
The Rifkind objection gets used by lawyers defending depositions all the time, however, lawyers
21
routinely apply it too broadly. An example of an improper Rifkind question would be: “[s]tate all facts
22
that support the affirmative defense.” (Id. at 1258.) A question solely of a factual nature is “Are you a
23
plaintiff?” Or, “Have you read a copy of the complaint that you're a plaintiff in?” Another factual question
24
would be “Why are you suing the restaurant?” None of those questions go to the basis for a legal
25
conclusion.
26
Here, the questions about have you read the complaint, what happened at the incident (i.e., what
27
facts exist) to support your general damages, including the claim for emotional distress due to the claimed
28
14
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 garden variety anxiety which Michael had taken medication for, what facts are you aware of what
2 happened after the incident such as statements obtained from his father and/or grandfather, what
3 information do you have about your grandfather (a co-plaintiff) and his medical condition in order to
4 evaluate the facts that will come out at trial, and will be used to come up with a meaningful settlement
5 discussion are all relevant and not prohibited by Rifkind.
6 It is proper to ask a question regarding the facts that led to the incident. This question is not
7 seeking a legal justification for something, rather it is asking for facts needed to help resolve this matter.
8 Additionally, the Rifkind decision came out in 1994 and the Stewart decision came out in 2001 further
9 modifying the Rifkind decision. The court in Stewart specifically held that except for specifically stated
10 privileges, it is generally improper for counsel to instruct a witness not to answer on any other ground.
11 (Stewart, supra, 87 Cal.App.4th at 1015.) (emphasis added.)
12 Objections that speak to the form of the question is an improper objection under CCP § 2017.010
13 which in pertinent part provides that “any party may obtain discovery regarding any matter, not
14 privileged, that is relevant to the subject matter[.]” When objections as to form of the question are raised,
15 the other party should be asked to rephrase the question. It is not appropriate for counsel to instruct the
16 witness not to answer based on the form of the question.
17 For the foregoing reasons, it is clear that Plaintiff’s counsel improperly acted as the arbiter of
18 what information will be deemed admissible at trial as a way to prevent Plaintiff from answering
19 questions. As noted in Stewart, unless the matter is privileged, a party may obtain discovery, through
20 deposition questions, so long as the question may lead to the discovery of admissible evidence. This is
21 textbook misuse of the discovery process. Therefore, Defendants move to compel further responses from
22 Plaintiff to the questions cited from Plaintiff’s deposition in this statement. Without the evidence that is
23 being requested, it will be difficult, if not impossible, to come up with a reasonable settlement amount.
24 PLAINTIFF’S RESPONSE IN OPPOSITION:
25 Contrary to what Defendants argue, Plaintiff’s counsel did specifically object based on attorney-
26 client privilege multiple times in the line of questioning:
27
Q. Michael, have you read a copy of the complaint that you're a plaintiff in?
28
15
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
MS. RUBY: Objection to the extent it calls for attorney-client privileged
1 communications.
2 MR. ZUMSTEIN: You can answer, Michael.
MS. RUBY: You can answer if it's anything other than something that
3 either Mr. Alper's office or my office has told you.
]A I don’t understand the question.
4 (Depo., at 65:11-19)
5
Q. Why are you suing the restaurant?
6 MS. RUBY: No. That is Rifkin. Improper. Object to form. Harassing.
Argumentative. It calls for attorney-client communications. I'm going to
7 instruct him not to answer. And I'm going to have to (inaudible) it up if this
continues. This is ridiculous.
8 (Depo., at 67:15-21
9
In addition, contrary to what Defendants argue, Plaintiff’s counsel did allow Plaintiff to answer
10
multiple of the exact questions that Defendants argue Plaintiff should be compelled to answer because
11
Defendants claim are proper under Rifkind and Stewart, including, “whether he’s a plaintiff in this case”
12
(Depo., at 64:19-65:3); to the extent it did not call for information Plaintiff learned from his attorneys,
13
he was permitted to answer whether he’s read a copy of the complaint, and Plaintiff answered he does
14
not understand the question (Depo., at 65:11-19); and Plaintiff was permitted to answer “whether or not
15
he's suing somebody as a result of the incident” (Depo., at 66:23-67:13).
16
With respect to questions such as, “Michael, did you ever at any point in time in your life ever
17
know whether or not your grandfather ever had any health conditions?” and, “Michael, as you sit here
18
today, do you know if your grandfather currently at this moment in time on December 20th at 1:06 p.m.
19
has any health-related conditions?”, Plaintiff’s counsel’s objections that the questions, “Seek medical
20
information that's not relevant or reasonably calculated to lead to the discovery of admissible evidence…
21
unlimited to time and scope and unreasonable invasion of privacy…” are proper. (Depo., at 67:23-68:17)
22
As discussed previously in this opposition, in determining whether one has waived the right of
23
privacy by bringing suit, our Supreme Court has noted that although there may be an implicit partial
24
waiver, the scope of such waiver must be narrowly, rather than expansively construed, so that plaintiffs
25
will not be unduly deterred from instituting lawsuits by fear of exposure of private activities. (Vinson v.
26
Superior Court (1987) 43 Cal.3d 833, 842, quoting Britt v. Superior Court (1978) 20 Cal.3d 844,
27
859.) An implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to
28
16
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 the plaintiff's claim and essential to the fair resolution of the lawsuit. (Vinson v. Superior Court, supra, 43
2 Cal.3d at p. 842.)
3 There must be a compelling and opposing state interest justifying the discovery. (Britt v. Superior
4 Court, supra, 20 Cal.3d at p. 855.) Even when discovery of private information is found directly relevant
5 to the issues of ongoing litigation, it will not be automatically allowed; there must then be a careful
6 balancing of the compelling public need for discovery against the fundamental right of privacy. (Binder
7 v. Superior Court (1987) 196 Cal.App.3d 893, 900.)
8 Here, whether Michael Montano’s grandfather, Plaintiff Luis Montano, Jr., ever had any health
9 conditions”, is outside the scope of discovery because it is not directly relevant to the plaintiff's claim
10 and essential to the fair resolution of the lawsuit. (Vinson v. Superior Court, supra, 43 Cal.3d at p. 842.)
11 Defendants have misused the discovery process and shows that this motion was unnecessary, as
12 characterized in Code of Civil Procedure section 2023.010 by persisting, over objection and without
13 substantial justification, in an attempt to obtain information that is outside the scope of permissible
14 discovery, and employing a discovery method in a manner and to an extent that it causes unwarranted
15 annoyance, embarrassment, oppression, and undue burden.
16 Code of Civil Procedure section 2023.010 states that misuses of the discovery process include,
17 but are not limited to, the following:
18
(a) Persisting, over objection and without substantial justification, in an
19 attempt to obtain information or materials that are outside the scope of
20 permissible discovery.
…
21 (c) Employing a discovery method in a manner or to an extent that causes
unwarranted annoyance, embarrassment, or oppression, or undue burden
22 and expense.
…
23
(h) Making or opposing, unsuccessfully and without substantial
24 justification, a motion to compel or to limit discovery.
(i) Failing to confer in person, by telephone, or by letter with an opposing
25 party or attorney in a reasonable and good faith attempt to resolve
informally any dispute concerning discovery, if the section governing a
26 particular discovery motion requires the filing of a declaration stating facts
showing that an attempt at informal resolution has been made.
27
Defendants’ counsel’s conduct and questions during deposition clearly reveal that it is the defense
28
17
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 strategy to conduct a fishing expedition far outside the scope of discovery and attempt to harass and
2 invade Plaintiff’s Constitutional right to privacy in a desperate attempt to find something to help their
3 case.
4 PAGE:LINE 101:11-104:15
5 MR. DODD: Okay. Have you spoken to any family members about your -- your anxiety?
6 WITNESS: Yes.
7 MR. DODD: Okay. Have you spoken to your father?
8 WITNESS: Yes.
9 MR. DODD: And what did you relate to him?
10 WITNESS: Could you repeat the question
11 MR. DODD: Yes. When you spoke to your father about your anxiety, what did you -- what did you say
12 to him?
13 WITNESS: That I would get anxious when having to drive.
14 MR. DODD: And what did he respond, if anything?
15 WITNESS: He said that was normal due to the accident.
16 MR. DODD: Did he recommend that you see a counselor for that?
17 MS. RUBY: Objection. Outside the scope. Irrelevant. Not reasonably calculated to lead to the discovery
18 of admissible evidence. Not making a claim for any mental health treatment. And invasion of privacy.
19 I'll instruct him not to answer anything having to do with any questions about any mental health treatment
20 that's not part of this client's claim – or plaintiff's claim.
21 MR. DODD: Well, if it's not for -- if anxiety is not mental health, what is it?
22 MS. RUBY: Anxiety falls within – underneath the scope of general damages that are available to a
23 plaintiff in California. They don't need to claim extreme emotional distress.
24 MR. DODD: I see that it doesn't say, but when you're claiming anxiety you're putting that condition at
25 issue.
26 MS. RUBY: We're not claiming any treatment related to emotional distress or any anxiety as part of the
27 case.
28
18
PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL DEPOSITION RESPONSES
1 MR. DODD: So what is being claimed then?
2 MS. RUBY: I can read again into the record. Earlier we were claiming –
3 MR. DODD: Like, if he did receive treatment, then we're going to be presented with medical records of
4 the treatment as an element of damages. I think we're entitled to ask for that in discovery.
5 MS. RUBY: Oh, absolutely, but that's not happening.
6 MS. ELZA: Yeah. What she's saying is, is that she's answered discovery, disclosed that he has anxiety.
7 Clearly -- and either he's treated for it or not, but she's not going to answer that question because she
8 thinks -- Her position is that anxiety is part of general emotional distress. We don't get to explore any
9 treatment he had or didn't have from it. And the statute that she's citing says that to the extent that you've
10 got a defendant seeking a medical health exam. We're not asking for a medical health exam. We're just
11 asking for discovery. But in a nutshell I think that's where we are on that issue.
12 MR. DODD: We're not asking for an IME at this point, but if the claim is being pursued –
13 MS. RUBY: And it's not and that's the point. If it was being pursued then you would be receiving an IME
14 -- or sorry, not IME, but a DME. And we're not making that claim. And so I couldn't be more clear and
15 that the discovery responses couldn't be more clear that we're not going to be –
16 MR. DODD: That he's going to testify that he's experiencing these symptoms –
17 MS. ELZA: And he's going to call them anxiety. Right? And he's going to call them anxiety
Preview
1 GREENBERG AND RUBY INJURY ATTORNEYS, APC 2 EMILY RUBY – SBN 289433 eruby@caltrialpros.com 3 SERGIO R. CARDENAS – SBN 321239 scardenas@caltrialpros.com 4 6100 Wilshire Boulevard, Suite 1170 Los Angeles, California 90048 5 Tel. No.: (323) 782-0535 Fax No.: (323) 782-0543 6 ALPERS LAW GROUP, INC. 7 RICHARD C. ALPERS - SBN 254646 8 PO BOX 1540 APTOS, CA 95001 9 Tel. No: (855) 808-1174 Fax No: (855) 870-1129 10 Email: rca@alperslawgroup.com 11 Attorneys for Plaintiffs, LOUIS MONTANO, JR.; 12 LOUIE MONTANO III; and MICHAEL MONTANO 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF MONTEREY 16 LOUIS MONTANO, JR.; LOUIE MONTANO III; Case No.: 21CV003635 and MICHAEL MONTANO, Assigned to: Hon. Carrie M. Panetta 17 Dept. 14 18 Plaintiffs, vs. PLAINTIFF MICHAEL MONTANO’S 19 SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO DEFENDANT’S CITY OF SALINAS; GINO’S RESTAURANT, MOTION TO COMPEL DEPOSITION 20 INC.; GINO’S FINE ITALIAN FOOD, INC.; RESPONSES 21 BLFA PROPERTIES LLC; NTN PROPERTIES LLC; NGOCHAO THI NGUYEN; RALPH [Filed concurrently with Plaintiffs’ 22 BOZZO; ROSAURA ARCOS PANIAGUA; Memorandum of Points and Authorities; and Declaration of Sergio R. Cardenas with 23 AUSTIN ALARCON; and DOES 1-35, Exhibits] 24 Defendants. Date: May 19, 2023 25 Time: 8:30 am AND RELATED CROSS-ACTIONS Dept.: 14 26 Action Filed: November 16, 2021 27 Trial: August 28, 2023 28 1 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 Pursuant to the provisions of California Rule of Court 3.1345, Plaintiff Michael Montano submits 2 this Separate Statement in support of his Opposition to Defendants’’ Motion to Compel Deposition 3 Responses. 4 DEPOSITION TESTIMONY IN DISPUTE 5 Question and discussion from the deposition of Plaintiff MICHAEL MONTANO, Volume I, 6 which occurred on December 20, 2022. 7 PAGE:LINE 47:11-52:15 8 MS. ELZA: Okay. Did you have to receive any -- or did you receive any type of therapy or counseling 9 to assist you in being able to, you know, return to driving? 10 MS. RUBY: Objection. We're not making a claim for extreme emotional distress or any treatment related 11 to any emotional stress or anxiety? 12 MS. ELZA: Okay. But if he had counseling or if he received therapy to be able to return to driving, I 13 think I still get to ask about it because it's part of his treatment. 14 MS. RUBY: That's exactly what I said, not part of his treatment, so I'm going to instruct him not to 15 answer. We're not making a claim for that. 16 BY MS. ELZA: So how long -- Are you still receiving treatment and therapy today for the anxiety that 17 you suffer from when driving? 18 MS. RUBY: Object to form. Assumes facts not in evidence. Seeks information that's not relevant or 19 reasonably calculated to lead to the discovery of admissible evidence and unreasonable invasion of 20 privacy. I'm going to instruct him not to answer. 21 BY MS. ELZA: Mr. Montano, were you able to return to driving without therapy or counseling? 22 MS. RUBY: Same objections and same instructions. 23 MS. ELZA: Well, if I can't even determine – I mean, you're -- you're basically telling me he treated, but 24 you're just not going to let me know what that is and I still don't understand why. I mean, you don't get 25 to cherry pick his treatment. If he treated with someone and it's for the anxiety, I don't really understand 26 why we don't get to -- why that's not part of -- of the discovery process. 27 MS. RUBY: It's not your claim and it's not your complaint, so you don't get to choose. 28 2 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 MS. ELZA: But it -- but it is. He's asking for -- he's asking for emotional distress from the accident. And 2 he's -- he's articulated, Counsel, that his -- his emotional distress is anxiety, right? And you're now telling 3 me for the first time, because it wasn't in his discovery responses, that he did go through some type of 4 counseling or therapy. 5 MS. RUBY: Listen to what -- listen to what you just said which is exactly my point. It's not in his 6 discovery responses. And me objecting to that -- if you ask the witness, did you kill your dog yesterday, 7 that's just completely irrelevant. I would not – 8 MS. ELZA: Counsel, he's claiming anxiety from the accident. The dog wouldn't have anything to do with 9 this. 10 MS. RUBY: Right, but I'm telling you just the fact that I'm instructing him not to answer doesn't mean 11 that what you're – 12 MS. ELZA: Of course it does. 13 MS. RUBY: -- assuming is true. 14 MS. ELZA: Of course it does because his answer is no. If he didn't go to counseling and therapy, then 15 why wouldn't he just say, no, ma'am, I did not. No. That's it. That's the answer. 16 MS. RUBY: I'm his -- I'm his attorney and I'm instructing him not to answer. 17 MS. ELZA: Okay. We'll certify. We'll take it -- we'll take it up on a motion to compel. 18 MS. RUBY: Based on what? Let's have a meet and confer. How is that relevant when we're not claiming 19 that? 20 MS. ELZA: Because you're claiming anxiety. And if he's treated for -- and that's what you're claiming, 21 that's his whole -- I mean -- and I'll go through the rest of it. Like, it's detailed in his response. So if he's 22 treated for that – 23 MS. RUBY: That's – 24 MS. ELZA: Hang on. If he's treated for that, then -- then we're entitled to look at the next part of his 25 claim. You don't get to say, oh, he treated, but I'm going to hide -- you don't get to look at these records, 26 right? Because that immediately means to me there's something you don't want us to see. And it's kind 27 of ridiculous. I mean, it benefits his case, right? Like, it benefits his damage case. If you're asking for 28 3 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 policy limits, which I think is what's coming, then why wouldn't you say, yeah, he treated. And you can 2 cherry pick them, right? You can say, Laurie, I'll give you -- I mean, at this point you won't even let us - 3 - you won't even let us subpoena records. So, yeah, I mean, I'm just -- I don't get it. I don't -- I don't 4 understand how you can say it's anxiety, he has it, here's all the awful things he's still going through. 5 You're acting as if he hasn't been treated, but he has. Right? I mean, he has. 6 MS. RUBY: No one said that. No one said that. 7 MS. ELZA: Okay. Then why can't he answer the question? If he has not been treated, Counsel, why are 8 you even making an objection? 9 MS. RUBY: We're not making a claim for treatment related to his anxiety or emotional distress. 10 MS. ELZA: But then why does he get to testify to something, right? He gets to testify, and you're going 11 to put him on the stand. You're going to have him testify to this when he's been -- when clearly, you're 12 objecting to the treatment so he's been treated, right? And I don't know if he's still treating because you 13 won't even let him answer that. So I don't -- I don't follow how this is not -- I don't follow. But let's do 14 this. I'll certify -- I'll certify the question. We'll file a motion to compel. And let's take a break. It's like 15 12:37; we've been going an hour. 16 MS. RUBY: I think it's worth looking at Code of Civil Procedure Section 2032.320 Subsection (C). 17 MS. ELZA: Okay. 18 MS. RUBY: That plaintiff can stipulate that no claim being made for mental or emotional distress over 19 and above what is usually associated with physical injuries claimed and no expert testimony regarding 20 the usual mental distress – 21 MS. ELZA: Right. Right, Counsel, but that's not the issue here. 22 MS. RUBY: That's exactly the issue. 23 MS. ELZA: He's claiming -- he's claiming anxiety. He's claiming that he suffers still from anxiety, so I 24 just asked him if he treated and you're like, no, you don't get to know if he treated. Well, we do get to 25 know if he treated. I understand that you're saying we're not asking for emotional distress above and 26 beyond, but you have made his anxiety when driving, eating at a restaurant and in large, crowded groups 27 of people, that's now at issue because you – 28 4 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 MS. RUBY: Right. And it shows garden variety distress associated with his physical injuries that were 2 claimed. 3 MS. ELZA: Right. And if he treated for it, we get to see it. And we'll file -- we'll file the motion. We'll 4 file the motion. 5 116:25-117:14 6 MS. ELZA: Okay. All right. Okay. That was... The other question that I'm going to ask you is prior to 7 this incident, had you ever received any type of counseling or therapy or other treatment for anxiety? 8 MS. RUBY: I'm going to object. It's not relevant or reasonably calculated to lead to the discovery of 9 admissible evidence. Unreasonable invasion of privacy. I'm going to instruct him not to answer. 10 MS. ELZA: OK. Mr. Montano, are you going to follow your attorney's advice and not answer that 11 question? 12 WITNESS: Yes. 13 MS. ELZA: OK. All right. I have no further questions. Thank you. 14 REASONS WHY PLAINTIFF SHOULD BE COMPELLED TO ANSWER THESE 15 QUESTIONS: 16 The information sought from Plaintiff is not protected by privilege, and in fact, at no point during 17 Plaintiff’s deposition regarding this line of questioning did Plaintiff’s counsel ever object based on 18 privilege. The trial court in Stewart v. Colonial Western Agency, Inc., (2001) 87 Cal.App.4th 1006, held 19 that it was not the attorney's job to instruct the witness not to answer questions, "unless the matter is 20 privileged...you don't assume the role of judge and instruct the witness not to answer a question at 21 deposition." Id. at 1011. The Court of Appeal upheld the lower court's ruling and held that: "Any party 22 may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved 23 in the pending action...if the matter is itself admissible in evidence or appears reasonably calculated to 24 lead to the discovery of admissible evidence." Id. at 1012. Further, any party may obtain discovery that 25 is relevant to the subject matter involved in the action, even if it is not admissible. (California Code of 26 Civil Procedure § 2017.010.) 27 The information sought from Plaintiff is relevant and is likely to lead to the discovery of 28 5 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 admissible evidence. "For discovery purposes, information is relevant if it 'might reasonably assist a party 2 in evaluating the case, preparing for trial, or facilitating settlement....' [Citation.] Admissibility is not the 3 test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. 4 [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular 5 belief), fishing expeditions are permissible in some cases." (Gonzalez v. Superior Court (1995) 33 6 Cal.App.4th 1539, 1546, 39 Cal.Rptr.2d 896, quoting Weil & Brown, Cal. Practice Guide, Civil 7 Procedure Before Trial, (The Rutter Group 1994) Discovery, P 8:66.1, p. 8C-1.) Id. at 1012-2013. 8 The questions posed by counsel for Defendants is directly relevant to the issues at hand. Here, 9 information surrounding the Plaintiff and his emotional state is relevant because Plaintiff claims he “is 10 not making a claim for emotional distress, anxiety, depression, PTSD and/or other psychological or 11 emotional injury above that usually associated with the physical injuries claimed. Tri State prescribed 12 pills escitalopram for anxiety and sleeping problems as result of the incident.” 13 (Michael Montano’s Supplemental Responses to NTN Properties, LLC’s Special Interrogatory, Set 1, 14 Response No. 2.) (See p. 4; lines 23-24; Ex D at ¶ 11 to Zumstein Decl.) (emphasis added.) 15 Plaintiff has admitted that he is making an emotional distress claim, which will include general 16 damages, that is “usually associated with the physical injuries claimed.” Furthermore, Michael Montano 17 admits in his discovery response that he was prescribed pills for “anxiety and sleeping problems as a 18 result of the incident.” (Id.) 19 For the foregoing reasons, it is clear that Plaintiff’s counsel improperly acted as the arbiter of 20 what information will be deemed admissible at trial as a way to prevent Plaintiff from answering 21 questions. As noted in Stewart, unless the matter is privileged, a party may obtain discovery, through 22 deposition questions, so long as the question may lead to the discovery of admissible evidence. This is 23 textbook misuse of the discovery process. Therefore, Defendants move to compel further responses from 24 Plaintiff to the questions cited from Plaintiff’s deposition in this statement. 25 PLAINTIFF’S RESPONSE IN OPPOSITION: 26 Well-established law in this state prohibits the type of discovery sought by the Defendants, when 27 a Plaintiff is claiming only garden variety emotional distress, as in this case. In Davis v. Superior Ct. 28 6 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 (1992) 7 Cal. App. 4th 1008, the Court of Appeal held, “that the mere act of filing a personal injury action 2 asking for general damages for pain and suffering does not tender the plaintiff's mental condition so as 3 to make discoverable post-injury psychotherapeutic records.” (Davis, at 1011.) In determining whether 4 one has waived the right of privacy by bringing suit, our Supreme Court has noted that although there 5 may be an implicit partial waiver, the scope of such waiver must be narrowly, rather than expansively 6 construed, so that plaintiffs will not be unduly deterred from instituting lawsuits by fear of exposure of 7 private activities. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842, quoting Britt v. Superior 8 Court (1978) 20 Cal.3d 844, 859.) An implicit waiver of a party's constitutional rights encompasses only 9 discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the 10 lawsuit. (Vinson v. Superior Court, supra, 43 Cal.3d at p. 842.) 11 There must be a compelling and opposing state interest justifying the discovery. (Britt v. Superior 12 Court, supra, 20 Cal.3d at p. 855.) Even when discovery of private information is found directly relevant 13 to the issues of ongoing litigation, it will not be automatically allowed; there must then be a careful 14 balancing of the compelling public need for discovery against the fundamental right of privacy. (Binder 15 v. Superior Court (1987) 196 Cal.App.3d 893, 900.) 16 In Davis, the court explained: We recognize that an allegation of pain and suffering from a physical injury 17 permits a party to recover for a range of emotional injuries. Pain 18 and suffering have included physical pain, fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, 19 embarrassment, apprehension, terror and ordeal. (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892–893.) However, our 20 Supreme Court has recognized that the extent to which a mental component may be in issue in a particular suit depends upon the facts of a particular 21 case. (Cf. Roberts v. Superior Court, supra, 9 Cal.3d 330, at 338–339.) 22 Further, as the court in Roberts v. Superior Court (1973) 9 Cal. 3d 330 stated: 23 “We must of course recognize that any physical injury is likely to have a 24 ‘mental component’ in the form of the pain suffered by the injured person, at least insofar as he is conscious of the physical injury. Presumably, the 25 perception of pain from a particular injury will vary among individuals. Thus, in every lawsuit involving personal injuries, a mental component may 26 be said to be at issue, in that limited sense at least. However, to allow 27 discovery of past psychiatric treatment merely to ascertain whether the patient's past condition may have decreased his tolerance to pain or whether 28 7 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES the patient may have discussed with his psychotherapist complaints similar 1 to those to be litigated, would defeat the purpose of the privilege established 2 by section 1014.” (Roberts v. Superior Court, supra, at p. 339.) There is no disputed fact in consequence to the determination of this action concerning any 3 psychological injury because Plaintiff is not claiming a psychological injury. Instead, Plaintiff is merely 4 claiming emotional distress normally associated with the physical injuries of the type he sustained. That 5 by no means opens the doors to Plaintiff's psychiatric history, as recognized by the Supreme Court in 6 Roberts. 7 The information Defendant claims to need has been provided through discovery responses, meet 8 and confer correspondence, and during Michael Montano’s deposition. On August 30, 2022, Plaintiff 9 Michael Montano (“Plaintiff”) served discovery responses to Defendant NTN Properties, LLC’s 10 (“NTN”) Special Interrogatories (“SROGS”), Set One, on all Defendants, including the moving party. 11 SROGS no. 2 asks “IDENTIFY each HEALTH CARE PROVIDER who has treated YOU for emotional 12 distress, anxiety, depression, PTSD and/or other psychological or emotional injury which YOU contend 13 was caused by the INCIDENT”. In response, Plaintiff answered “Plaintiff is not making a claim for 14 emotional distress, anxiety, depression, PTSD and/or other psychological or emotional injury above 15 that usually associated with the physical injuries claimed”. 16 On September 15, 2020, NTN’s counsel, Laurie Elza, sent a meet and confer correspondence 17 regarding all three Plaintiffs’ discovery responses, that is Louis Montano Jr., Loui Montano III and 18 Michael Montano (for the purpose of this Opposition, this Memorandum will focus on Michael’s 19 responses). In said correspondence defense counsel requested supplemental responses to SROGS no. 2, 20 among other discovery requests, stating that: 21 “If your clients have received treatment (e.g. medication, therapy, 22 psychological/psychiatric consults, counseling, etc.) for emotional distress, anxiety, depression, PTSD, or other psychological or emotional injury due to the incident, the 23 identities of the medical providers are discoverable. Your clients’ respective responses are not responsive and are not Code compliant. They either did receive treatment or they did 24 not. If they did not, then provide a verified, supplemental response for each which states 25 that no treatment was received. If they did and you are refusing to disclose the same, please advise and we can address that issue in a further meet and confer.” 26 On September 23, 2022, Plaintiff’s counsel sent a meet and confer letter addressing the issues 27 raised by defense counsel, Laurie Elza, on her correspondence of September 15, 2022, reflecting a good 28 8 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 faith effort to participate in the meet and confer process. With respect to SROGS no. 2, Plaintiffs’ counsel 2 stated his correspondence that, “Plaintiff will provide a supplemental response. Plaintiffs are not 3 making a claim for psychological and/or emotional injuries as a result of the incident”. 4 On November 28, 2022, Plaintiff Michael Montano served supplemental discovery responses to 5 Defendant NTN Properties, LLC’s SROGS, Set One, on all Defendants, including the moving party. In 6 his supplemental response to SROGS no. 2, Plaintiff stated “Plaintiff is not making a claim for emotional 7 distress, anxiety, depression, PTSD and/or other psychological or emotional injury above that usually 8 associated with the physical injuries claimed. At this time Plaintiff is not claiming treatment for the 9 identified conditions. Discovery is going on and Plaintiff’s reserves the right to supplement this 10 discovery response.” After all Defendants were served with Michael Montano’s supplemental responses, 11 Defendants did not engage in a further meet and confer following receipt of Plaintiffs’ supplemental 12 responses. 13 The moving party proceeded to file the present motion to compel. Defendants’ Separate Statement 14 cites Michael Montano’s Supplemental Responses to NTN Properties, LLC’s Special Interrogatory, Set 15 1, Response No. 2 [(Ex D at ¶ 11 to Zumstein Decl.) (emphasis added.)] to support the basis for this 16 motion, based on the following: 17 “Plaintiff is not making a claim for emotional distress, anxiety, depression, PTSD and/or 18 other psychological or emotional injury above that usually associated with the physical 19 injuries claimed. Tri State prescribed pills escitalopram for anxiety and sleeping problems as result of the incident”. 20 21 As Defendants know, this statement was not in the initial responses served on August 30, 2022 22 (Exhibit 1 to Cardenas Decl.), and was a typo made at the time the supplemental responses of Miachel 23 Montano and Louie Montano III were drafted. A whole review of Plaintiff’s responses from August 30, 24 2022 and supplemental responses from November 28, 2022, show that said statement was typo. Michael 25 Montano identified Natividad Medical Center, Salinas Valley Radiologists, Inc., and Shepherd Eye 26 Center as the medical providers that treated him as result of the subject incident. Nowhere else in Plaintiff 27 Michael Montano’s discovery responses in this case identify Tri State as a medical provider for Michael 28 9 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 Montano. As Defendants know, Tri-State provided treatment to Michael Montano’s grandfather, Plaintiff 2 Louie Montano III, not Michael Montano. Michael Montano’s supplemental response to NTN’s Special 3 Interrogatory, Set One, Interrogatory No. 2, clearly states that Michael Montano is not claiming treatment 4 for emotional distress, anxiety, depression, PTSD and/or other psychological or emotional injury... 5 (Exhibit D to Zumstein Decl.). 6 On December 20, 2022, Plaintiff Michael Montano was deposed. During his deposition, defense 7 counsel questioned him regarding “his general damages claim associated with anxiety, any counseling or 8 other treatment”. Mr. Montano confirmed he has not had any treatment related to the subject incident 9 other than the hospital the date of the incident, and a doctor related to his eye injury. (See, Deposition 10 Transcript at 95:3-18). He also explained that what he meant by “anxiety” was feeling uncomfortable 11 driving and in crowds, and that in order to attempt to address it he has spoken with family members and 12 tried taking his college classes on campus instead of online. (Depo., at 99:23-100:1, 101:11-22, 119:2- 13 10, 137:2-8, 139:9-140:18) Further, he testified he does not have a history of anxiety. (Depo., at 144:14- 14 22) 15 There are no new issues or facts in this case on which Plaintiff needs to be examined during a 16 subsequent deposition. Defendants are simply attempting to blur the court’s vision with inapplicable 17 case law and a misleading and incorrect suggestion that Plaintiff has waived his right to privacy in this 18 civil lawsuit. Clearly, this constituted a misuse and abuse of discovery. 19 PAGE:LINE 64:4-21 20 MR. ZUMSTEIN: Okay. When did you first learn that your grandfather had been suffering from some 21 health-related issues? 22 MS. RUBY: Object as to form. Vague as to time. Unlimited as to time. When are you referring to? And 23 what health issues are you referring to? 24 MR. ZUMSTEIN: Okay. Michael, do you understand the question? 25 MS. RUBY: I'm going to instruct him not to answer that question. 26 MR. ZUMSTEIN: Okay. Madam Reporter, I'm going to take an e-copy of this transcript as well. I will 27 be filing my own motion. Thanks. Michael, you're a plaintiff in this case; right? 28 10 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 MS. RUBY: Objection. Rifkin. This is improper questions for a deposition and harassing. 2 PAGE:LINE 65:11-68:20 3 Q. Michael, have you read a copy of the complaint that you're a plaintiff in? 4 MS. RUBY: Objection to the extent it calls for attorney-client privileged communications. 5 MR. ZUMSTEIN: You can answer, Michael. 6 MS. RUBY: You can answer if it's anything other than something that either Mr. Alper's office or my 7 office has told you. 8 THE WITNESS: I don't understand the question. 9 BY MR. ZUMSTEIN: Do you know what a plaintiff is? 10 MS. RUBY: Objection. This is harassing, argumentative. Rifkin. Improper. Object to form. Where are 11 you going – 12 MR. ZUMSTEIN: You can answer, Michael. 13 MS. RUBY: No. Where are you going with this, Matt? 14 MR. ZUMSTEIN: It's called discovery, Emily. 15 BY MR. ZUMSTEIN: Michael, are you a plaintiff in this case? 16 MS. RUBY: I am going to instruct him not to answer this entire line of questioning. You're harassing 17 him. MR. ZUMSTEIN: Oh, great. Michael, you're suing somebody, right, for these injuries as a result of 18 this incident? 19 MS. RUBY: Objection. Argumentative. Harassing. Rifkin. I'm going to instruct him not to answer. 20 MR. ZUMSTEIN: Okay, Counsel. Let me get this straight. Your client is suing the restaurant owner. I'm 21 asking, is he suing the restaurant owner and you're telling him he can't answer the question. 22 MS. RUBY: You literally just said that he is. 23 MR. ZUMSTEIN: I'm asking him to confirm it, Counsel. 24 MS. RUBY: No. You said, are you suing somebody, so you didn't ask him. You can ask him a specific 25 question. 26 BY MR. ZUMSTEIN: Are you suing somebody, Michael, as a result of this incident? 27 MS. RUBY: I'm going to object. This is harassing. Argumentative. Rifkin. Improper. 28 11 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 MR. ZUMSTEIN: Are you going to instruct him not to answer whether or not he's suing somebody as a 2 result of the incident? 3 MS. RUBY: We all know he is. And, Michael, you can answer that question. I'm not going to allow this 4 to continue, but you can answer that question. Go ahead. 5 THE WITNESS: Yes 6 BY MR. ZUMSTEIN: Why are you suing the restaurant? 7 MS. RUBY: No. That is Rifkin. Improper. Object to form. Harassing. Argumentative. It calls for 8 attorney-client communications. I'm going to instruct him not to answer. And I'm going to have to 9 (inaudible) it up if this continues. This is ridiculous. 10 BY MR. ZUMSTEIN: Michael, did you ever at any point in time in your life ever know whether or not 11 your grandfather ever had any health conditions? 12 MS. RUBY: Object. Irrelevant. Seeks medical information that's not relevant or reasonably calculated to 13 lead to the discovery of admissible evidence. Unlimited to time and scope and unreasonable invasion of 14 privacy. Foundation. And I'm going to instruct him not to answer. 15 BY MR. ZUMSTEIN: Michael, as you sit here today, do you know if your grandfather currently at this 16 moment in time on December 20th at 1:06 p.m. has any health-related conditions? 17 MS. RUBY: I'm going to object that it seeks irrelevant medical information that's not relevant or 18 reasonably calculated to lead to the discovery of admissible evidence. Unreasonable invasion of privacy 19 and foundation. I'm going to instruct him not to answer. 20 MR. ZUMSTEIN: Okay. I'm going to stop my questioning and reserve it when we bring him back and 21 you pay attorney's fees. 22 REASON WHY PLAINTIFF SHOULD BE COMPELLED TO ANSWER THESE QUESTIONS: 23 The information sought from Plaintiff is not protected by privilege, and in fact, at no point during 24 Plaintiff’s deposition regarding this line of questioning did Plaintiff’s counsel ever object based on 25 privilege. The trial court in Stewart v. Colonial Western Agency, Inc., (2001) 87 Cal.App.4th 1006, held 26 that it was not the attorney's job to instruct the witness not to answer questions, "unless the matter is 27 privileged...you don't assume the role of judge and instruct the witness not to answer a question at 28 12 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 deposition." Id. at 1011. The Court of Appeal upheld the lower court's ruling and held that: "Any party 2 may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved 3 in the pending action...if the matter is itself admissible in evidence or appears reasonably calculated to 4 lead to the discovery of admissible evidence." Id. at 1012. Further, any party may obtain discovery that 5 is relevant to the subject matter involved in the action, even if it is not admissible when it appears 6 reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) The information 7 sought from Plaintiff is relevant and is likely to lead to admissible evidence. "For discovery purposes, 8 information is relevant if it 'might reasonably assist a party in evaluating the case, preparing for trial, or 9 facilitating settlement....' [Citation.] Admissibility is not the test and information unless privileged, is 10 discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied 11 liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are 12 permissible in some cases." (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, 39 13 Cal.Rptr.2d 896, quoting Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial, (The Rutter 14 Group 1994) Discovery, P 8:66.1, p. 8C-1.) Id. at 1012-2013. 15 The questions posed by counsel for Defendants are directly relevant to the issues at hand. 16 Throughout the deposition, Michael Montano said he couldn’t understand questions that we asked to lay 17 a foundation to ask supplemental questions. For example, 18 MR. ZUMSTEIN: Michael, have you read a copy of the complaint that you're a plaintiff in? 19 MS. RUBY: Objection to the extent it calls for attorney-client privileged communications. 20 MR. ZUMSTEIN: You can answer, Michael. 21 MS. RUBY: You can answer if it's anything other than something that either Mr. Alper's office or my 22 office has told you. 23 THE WITNESS: I don't understand the question. 24 BY MR. ZUMSTEIN: Do you know what a plaintiff is? 25 MS. RUBY: Objection. This is harassing, argumentative. Rifkin. Improper. Object to form. Where are 26 you going – 27 MR. ZUMSTEIN: You can answer, Michael. 28 13 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 MS. RUBY: No. Where are you going with this, Matt? 2 MR. ZUMSTEIN: It's called discovery, Emily. Michael, are you a plaintiff in this case? 3 MS. RUBY: I am going to instruct him not to answer this entire line of questioning. You're harassing 4 him. (Depo pgs 65:11-66:8) 5 In order to ask the witness about what if any factual information he has to support his claim that 6 the incident occurred claims against the Defendants, it’s necessary to lay the foundation that he knows 7 what the claims are so questions can be asked as to what if any evidence (testimonial hearsay statements 8 from his grandfather, from his father after his father was injured, what he observed during the incident 9 that has led to his claim of anxiety) is known to support those claims. When the witness says, “I don’t 10 understand the question” when asked “Have you read the complaint?” which is the document outlining 11 his claims against the Defendants, more foundation must be obtained to be able to determine if the witness 12 has the capacity to understand the questions or whether or not an IME is necessary because of what 13 appears to be an inability to understand a few fundamental questions. 14 Here, Plaintiff’s counsel objected on numerous grounds: “This is harassing, argumentative. 15 Rifkin. Improper. Object to form.” 16 In Rifkind the court reasoned as follows: We emphasize at the outset what we are not discussing: questions at a deposition asking the person 17 deposed about the basis for, or information about, a factual conclusion or assertion, as distinguished from 18 the basis for a legal conclusion. Thus, if a deponent says that a certain event happened at a particular time or place, it is quite proper to ask the person, at deposition, how he or she became aware of it, his or her 19 knowledge about it, and for similar information of a factual nature. (Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1259.) (emphasis added.) 20 The Rifkind objection gets used by lawyers defending depositions all the time, however, lawyers 21 routinely apply it too broadly. An example of an improper Rifkind question would be: “[s]tate all facts 22 that support the affirmative defense.” (Id. at 1258.) A question solely of a factual nature is “Are you a 23 plaintiff?” Or, “Have you read a copy of the complaint that you're a plaintiff in?” Another factual question 24 would be “Why are you suing the restaurant?” None of those questions go to the basis for a legal 25 conclusion. 26 Here, the questions about have you read the complaint, what happened at the incident (i.e., what 27 facts exist) to support your general damages, including the claim for emotional distress due to the claimed 28 14 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 garden variety anxiety which Michael had taken medication for, what facts are you aware of what 2 happened after the incident such as statements obtained from his father and/or grandfather, what 3 information do you have about your grandfather (a co-plaintiff) and his medical condition in order to 4 evaluate the facts that will come out at trial, and will be used to come up with a meaningful settlement 5 discussion are all relevant and not prohibited by Rifkind. 6 It is proper to ask a question regarding the facts that led to the incident. This question is not 7 seeking a legal justification for something, rather it is asking for facts needed to help resolve this matter. 8 Additionally, the Rifkind decision came out in 1994 and the Stewart decision came out in 2001 further 9 modifying the Rifkind decision. The court in Stewart specifically held that except for specifically stated 10 privileges, it is generally improper for counsel to instruct a witness not to answer on any other ground. 11 (Stewart, supra, 87 Cal.App.4th at 1015.) (emphasis added.) 12 Objections that speak to the form of the question is an improper objection under CCP § 2017.010 13 which in pertinent part provides that “any party may obtain discovery regarding any matter, not 14 privileged, that is relevant to the subject matter[.]” When objections as to form of the question are raised, 15 the other party should be asked to rephrase the question. It is not appropriate for counsel to instruct the 16 witness not to answer based on the form of the question. 17 For the foregoing reasons, it is clear that Plaintiff’s counsel improperly acted as the arbiter of 18 what information will be deemed admissible at trial as a way to prevent Plaintiff from answering 19 questions. As noted in Stewart, unless the matter is privileged, a party may obtain discovery, through 20 deposition questions, so long as the question may lead to the discovery of admissible evidence. This is 21 textbook misuse of the discovery process. Therefore, Defendants move to compel further responses from 22 Plaintiff to the questions cited from Plaintiff’s deposition in this statement. Without the evidence that is 23 being requested, it will be difficult, if not impossible, to come up with a reasonable settlement amount. 24 PLAINTIFF’S RESPONSE IN OPPOSITION: 25 Contrary to what Defendants argue, Plaintiff’s counsel did specifically object based on attorney- 26 client privilege multiple times in the line of questioning: 27 Q. Michael, have you read a copy of the complaint that you're a plaintiff in? 28 15 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES MS. RUBY: Objection to the extent it calls for attorney-client privileged 1 communications. 2 MR. ZUMSTEIN: You can answer, Michael. MS. RUBY: You can answer if it's anything other than something that 3 either Mr. Alper's office or my office has told you. ]A I don’t understand the question. 4 (Depo., at 65:11-19) 5 Q. Why are you suing the restaurant? 6 MS. RUBY: No. That is Rifkin. Improper. Object to form. Harassing. Argumentative. It calls for attorney-client communications. I'm going to 7 instruct him not to answer. And I'm going to have to (inaudible) it up if this continues. This is ridiculous. 8 (Depo., at 67:15-21 9 In addition, contrary to what Defendants argue, Plaintiff’s counsel did allow Plaintiff to answer 10 multiple of the exact questions that Defendants argue Plaintiff should be compelled to answer because 11 Defendants claim are proper under Rifkind and Stewart, including, “whether he’s a plaintiff in this case” 12 (Depo., at 64:19-65:3); to the extent it did not call for information Plaintiff learned from his attorneys, 13 he was permitted to answer whether he’s read a copy of the complaint, and Plaintiff answered he does 14 not understand the question (Depo., at 65:11-19); and Plaintiff was permitted to answer “whether or not 15 he's suing somebody as a result of the incident” (Depo., at 66:23-67:13). 16 With respect to questions such as, “Michael, did you ever at any point in time in your life ever 17 know whether or not your grandfather ever had any health conditions?” and, “Michael, as you sit here 18 today, do you know if your grandfather currently at this moment in time on December 20th at 1:06 p.m. 19 has any health-related conditions?”, Plaintiff’s counsel’s objections that the questions, “Seek medical 20 information that's not relevant or reasonably calculated to lead to the discovery of admissible evidence… 21 unlimited to time and scope and unreasonable invasion of privacy…” are proper. (Depo., at 67:23-68:17) 22 As discussed previously in this opposition, in determining whether one has waived the right of 23 privacy by bringing suit, our Supreme Court has noted that although there may be an implicit partial 24 waiver, the scope of such waiver must be narrowly, rather than expansively construed, so that plaintiffs 25 will not be unduly deterred from instituting lawsuits by fear of exposure of private activities. (Vinson v. 26 Superior Court (1987) 43 Cal.3d 833, 842, quoting Britt v. Superior Court (1978) 20 Cal.3d 844, 27 859.) An implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to 28 16 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 the plaintiff's claim and essential to the fair resolution of the lawsuit. (Vinson v. Superior Court, supra, 43 2 Cal.3d at p. 842.) 3 There must be a compelling and opposing state interest justifying the discovery. (Britt v. Superior 4 Court, supra, 20 Cal.3d at p. 855.) Even when discovery of private information is found directly relevant 5 to the issues of ongoing litigation, it will not be automatically allowed; there must then be a careful 6 balancing of the compelling public need for discovery against the fundamental right of privacy. (Binder 7 v. Superior Court (1987) 196 Cal.App.3d 893, 900.) 8 Here, whether Michael Montano’s grandfather, Plaintiff Luis Montano, Jr., ever had any health 9 conditions”, is outside the scope of discovery because it is not directly relevant to the plaintiff's claim 10 and essential to the fair resolution of the lawsuit. (Vinson v. Superior Court, supra, 43 Cal.3d at p. 842.) 11 Defendants have misused the discovery process and shows that this motion was unnecessary, as 12 characterized in Code of Civil Procedure section 2023.010 by persisting, over objection and without 13 substantial justification, in an attempt to obtain information that is outside the scope of permissible 14 discovery, and employing a discovery method in a manner and to an extent that it causes unwarranted 15 annoyance, embarrassment, oppression, and undue burden. 16 Code of Civil Procedure section 2023.010 states that misuses of the discovery process include, 17 but are not limited to, the following: 18 (a) Persisting, over objection and without substantial justification, in an 19 attempt to obtain information or materials that are outside the scope of 20 permissible discovery. … 21 (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden 22 and expense. … 23 (h) Making or opposing, unsuccessfully and without substantial 24 justification, a motion to compel or to limit discovery. (i) Failing to confer in person, by telephone, or by letter with an opposing 25 party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a 26 particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made. 27 Defendants’ counsel’s conduct and questions during deposition clearly reveal that it is the defense 28 17 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 strategy to conduct a fishing expedition far outside the scope of discovery and attempt to harass and 2 invade Plaintiff’s Constitutional right to privacy in a desperate attempt to find something to help their 3 case. 4 PAGE:LINE 101:11-104:15 5 MR. DODD: Okay. Have you spoken to any family members about your -- your anxiety? 6 WITNESS: Yes. 7 MR. DODD: Okay. Have you spoken to your father? 8 WITNESS: Yes. 9 MR. DODD: And what did you relate to him? 10 WITNESS: Could you repeat the question 11 MR. DODD: Yes. When you spoke to your father about your anxiety, what did you -- what did you say 12 to him? 13 WITNESS: That I would get anxious when having to drive. 14 MR. DODD: And what did he respond, if anything? 15 WITNESS: He said that was normal due to the accident. 16 MR. DODD: Did he recommend that you see a counselor for that? 17 MS. RUBY: Objection. Outside the scope. Irrelevant. Not reasonably calculated to lead to the discovery 18 of admissible evidence. Not making a claim for any mental health treatment. And invasion of privacy. 19 I'll instruct him not to answer anything having to do with any questions about any mental health treatment 20 that's not part of this client's claim – or plaintiff's claim. 21 MR. DODD: Well, if it's not for -- if anxiety is not mental health, what is it? 22 MS. RUBY: Anxiety falls within – underneath the scope of general damages that are available to a 23 plaintiff in California. They don't need to claim extreme emotional distress. 24 MR. DODD: I see that it doesn't say, but when you're claiming anxiety you're putting that condition at 25 issue. 26 MS. RUBY: We're not claiming any treatment related to emotional distress or any anxiety as part of the 27 case. 28 18 PLAINTIFF’S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO COMPEL DEPOSITION RESPONSES 1 MR. DODD: So what is being claimed then? 2 MS. RUBY: I can read again into the record. Earlier we were claiming – 3 MR. DODD: Like, if he did receive treatment, then we're going to be presented with medical records of 4 the treatment as an element of damages. I think we're entitled to ask for that in discovery. 5 MS. RUBY: Oh, absolutely, but that's not happening. 6 MS. ELZA: Yeah. What she's saying is, is that she's answered discovery, disclosed that he has anxiety. 7 Clearly -- and either he's treated for it or not, but she's not going to answer that question because she 8 thinks -- Her position is that anxiety is part of general emotional distress. We don't get to explore any 9 treatment he had or didn't have from it. And the statute that she's citing says that to the extent that you've 10 got a defendant seeking a medical health exam. We're not asking for a medical health exam. We're just 11 asking for discovery. But in a nutshell I think that's where we are on that issue. 12 MR. DODD: We're not asking for an IME at this point, but if the claim is being pursued – 13 MS. RUBY: And it's not and that's the point. If it was being pursued then you would be receiving an IME 14 -- or sorry, not IME, but a DME. And we're not making that claim. And so I couldn't be more clear and 15 that the discovery responses couldn't be more clear that we're not going to be – 16 MR. DODD: That he's going to testify that he's experiencing these symptoms – 17 MS. ELZA: And he's going to call them anxiety. Right? And he's going to call them anxiety