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LAW OFFICES OF CATHERINE A. WALSH
EDGAR W. HAWKYARD, (SBN 126735)
1800 Sutter Street, Suite 260
Concord, CA 94520
(925) 825-9500; Fax: (925) 825-9716
Attorneys for Defendant
ARLENE RENEE BROWN
ELECTRONICALLY
FILED
Superior Court of Catifornia,
County of San Francisco
07/27/2017
Clerk of the Court
BY: ANNA TORRES
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
JOHN DIAMANTE,
Plaintiff,
Vv.
ARLENE BROWN AND DOES | TO 20,
Defendants.
CASE NO. CGC-15-547144
DISCOVERY MOTION
DEFENDANT’S OPPOSITION TO
MOTION TO COMPEL RESPONSES TO
REQUEST FOR PRODUCTION OF
DOCUMENTS AND FOR SANCTIONS
Date: 8/10/17
Time: 9:00 a.m.
Dept.: 302
(Date Complaint Filed: Friday, July 31, 2015)
Defendant Arlene Brown hereby respectfully opposes plaintiff’ s Motion to Compel
Production of Documents as follows:
A. INTRODUCTION
Plaintiff's Motion to Compel Responses to Production of Documents should be
denied.
Defendant timely responded to plaintiff’s First Set of Request for Production of
Documents. Defendant’s verified Response to Request for Production No. 5
comports with the requirements of Section 2031.220 of the Code of Civil Procedure.27
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Defendant produced all documents responsive to Request for Production No. 5 within
her custody, possession, or control.
Plaintiff's request for issue or evidentiary sanctions is improper. Plaintiff cannot
show a violation of a prior discovery order and cannot show that defendant has
engaged in a pattern of discovery abuse or other egregious conduct.
DEFFENDANT SERVED A TIMELY RESPONSE TO PLAINTIFF'S
DISCOVERY REQUESTS AND PRODUCED ALL RESPONSIVE
DOCMENTS.
Request No. 5 of plaintiffs First Set of Request for Production of Documents
requested “(a)ll videos, photographs, or other depictions of the damage that
DEFENDANT’S VEHICLE sustained as a result of the INCIDENT.” Plaintiff did
not request “full resolution electronic files” of defendant’s vehicle.
Defendant timely responded that all documents in her possession, custody or control
would be produced. Defendant’s response complied with the requirements of CCP
Section 2031.220.
Defendant subsequently produced 13 color photographs of defendant’s vehicle.
Thus, there is no basis for plaintiff's Motion to Compel “original digital photograph
files of defendant’s vehicle.” Request No. 5 did not request “original digital
photograph files,” but simply al! photographs or depiction of the damage sustained by,
defendant’s vehicle, See Exhibit “C,” to Declaration of Genevieve K., Guertin, First
Set of Request for Production of Documents. Plaintiff seeks to expand his Request
through the definition of "DOCUMENT." Request No. 5 does not use the term
“DOCUMENT.” The photographs produced by defendant in response to Request No,
5 are a document” as defined by Evidence Code Section 250. The photographs
produced by defendant are “writings” within the definition of Evidence Code Section
250.C. PLAINTIFF’S CLAIM OF SPOLIATION OF EVIDENCE IS NOT
SUPPORTED BY THE EVIDENCE.
Plaintiff, in essence, seeks a remedy for what he claims is spoliation of evidence. The|
evidence does not support plaintiff's claim.
Defendant’s insurer, GEICO, through its field adjusters and claims examiners, will
photograph damage to automobiles where claims are presented. See attached
Declaration of Andrew Christensen in Support of Opposition to Motion to Compel
Production of Documents. The pictures, taken with a smart phone, are uploaded into
the claims system. The photographs uploaded into the claims system are preserved
should litigation arise. The images on the smart phone are periodically and routinely
deleted because of storage capacity limitations. The images are not deleted to deprive!
a party of evidence, but simply because of storage capacity limitations. The
photographs uploaded into the claims system are in a digital format.
Plaintiff has no evidence that defendant’s insurer intentionally deleted the images
stored on the claim’s examiner’s smart phone in response to plaintiff's discovery
requests. Quite the contrary, the images stores on the smart phone are routinely and
periodically deleted because of storage capacity limitations. See attached Declaration
of Andrew Christensen.
In California, there is no tort cause of action for intentional spoliation of evidence
[Cedars-Sinai Medical Center v. Superior Court, (1998) 18 Cal.4" 1, 17-18]. The
Supreme Court subsequently extended the holding of Cedars-Sinai Medical Center to
“third party” spoliation [Temple Community Hospital v. Superior Court, (1999) 20
Cal.4" 464, 466].
Similarly, appellate decisions have concluded that there is no tort remedy for either
first party or third party negligent spoliation of evidence [Lueter v. State, (2002) 94
Cal.App.4" 1285, 1295; Coprich v. Superior Court, (2000) 80 Cal.App.4" 1081, 1089]
— 1090; Farmers Ins. Exchange v. Superior Court, (2000) 79 Cal.App.4" 1400, 1407].
‘The courts in Coprich and Farmers Ins. noted that the burden of litigants, witnesses,and the judicial system outweighed the benefits of recognizing a tort cause of action
to deter negligent spoliation of evidence. The burdens included potentially endless
litigation over speculative losses, significant potential for jury confusion and
inconsistency when trying spoliation claims, either as a separate action or jointly with)
the underlying action, and the cost to society of promoting onerous record and
evidence retention policies.
The rationales noted by the Coprich and Farmers Ins. Exchange cases apply to this
situation. The request by plaintiff Diamante that original electronic files should be
saved would result in onerous and expensive policies. Plaintiff's claim is also
speculative, Plaintiff cannot show that an electronic file would show a telephone
mount. The only rationale advanced by plaintiff is the speculative argument that the
electronic photograph would definitively show the telephone mount, identified by Ms]
Brown at her deposition. The photographs taken of defendant’s vehicle were taken 5
days post-accident, not at the scene (See Declaration of Andrew Christensen). The
mount could have been removed before Mr. Fields took the pictures of defendant’s
vehicle, Plaintiff does not claim, for example, that the produced photographs are not
sufficient for an accident reconstruction expert to review and analyze to assess
causation, liability, vehicle damage, speeds, and forces at impact.
ISSUE AND/OR EVIDENTIARY SANCTIONS ARE IMPROPER.
Issue and evidentiary sanctions are authorized to be imposed against a party who fails
to obey an order compelling discovery [CCP Section 2031.300 (c), (d), @)].
Defendant has not violated any court orders compelling discovery.
Issue and evidentiary sanctions are also available if the misconduct is sufficiently
egregious [New Albertsons, Inc. v. Superior Court, (2008) 168 Cal.App.4" 1403,
1408].
Plaintiff cannot show egregious conduct that would justify issue or evidentiary
sanctions. Defendant has not engaged in a pattern of discovery abuse. On the
contrary, defendant has complied with all of plaintiff’s discovery requests.27
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. CONCLUSION
Plaintiff noticed defendant’s deposition for April 10,2017. Defendant appeared for
her deposition. Plaintiff requested that plaintiff produced 35 categories of documents]
Defendant produced before her deposition all responsive documents that she had in
her custody, control or possession.
Plaintiff propounded a First Set of Judicial Council Form Interrogatories, a First Set
of Specially Prepared Interrogatories (11 Special Interrogatories), First Set of Request|
for Admissions (33 separate Requests), and a First Set of Request for Production of
Documents requesting 35 separate categories of documents. Defendant served
timely, verified Responses,
Plaintiff cannot show that defendant requested that her insurer delete the electronic
file.
The sanctions plaintiff requests — that the trier of fact be instructed that defendant was
holding her cellular telephone at the time of the incident (denied by plaintiff in her
deposition and in her responses to discovery), that defendant be precluded from
testifying that her cellular telephone had been placed in a phone mount (contrary to
defendant’s deposition testimony), and the jury be instructed that the defendant
destroyed unfavorable evidence (no such tort remedy in California — are issues best
determined by the trial judge, not through a discovery motion. Plaintiff claims that
the requested documents are responsive to plaintiffs Prayer for Punitive Damages.
Defendant has noticed a Motion for Summary Adjudication with respect to the
punitive damages prayer for August 23, 2017. The sanction requests are al] contrary
to defendant’s testimony. Plaintiff has adequate remedies through cross-examination
of the defendant or through the direct testimony of witnesses presented by plaintiff at
trial.
Defendant produced all documents (13 photographs) of defendant’s vehicle
responsive to Request No. 5 of plaintiff's First Set of Request for Production ofDocuments. Plaintiff requested all photographs and depictions of defendant’s
vehicle. Defendant complied.
For the foregoing reasons, defendant respectfully requests that the court deny
plaintiff’s Motion.
DATED: July 26, 2017 Law Offices of Catherine A. Walsh
EL be tener )
EDGAR W. HAWRYARD
Attorney for Defendant
ARLENE RENEE BROWNPROOF OF SERVICE — BY MAIL
(C.C.P. §1013(a)(1)(3)
{Diamante v. Brown]
San Francisco Superior Court Unlimited
CASE NO.: CGC15547144]
The undersigned declares:
1am a citizen of the United States and am employed in the County of Contra
Costa, State of California. I am over the age of 18 years and not a party to the within action. I
am employed by the Law Offices of Catherine A. Walsh, and my business address is 1800 Sutter
Street, Suite 260, Concord, CA 94520.
On July 27, 2017, I served the attached DISCOVERY MOTION - DEFENDANTS
OPPOSITION TO MOTION TO COMPEL RESPONSES TO REQUEST FOR
PRODUCTION OF DOCUMENTS AND FOR SANCTIONS on the parties to said action by
depositing a true copy thereof in a sealed envelope with postage thereon fully prepaid, in the
United States mail in Concord, California, addressed as follows:
For Plaintiff JOHN DIAMANTE
Bryan D Lamb
Lamb and Fischer Law Firm LLP
1388 Sutter St Ste 815
San Francisco, CA 94109
415-997-9529
Executed on July 27, 2017. I declare under penalty of perjury under the laws of
the State of California that the foregoing is true and correct.