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LAW OFFICES OF OTTO L. HASELHOFF, P.C. Electronically Filed
Otto L, Haselhoff, Esq. (SBN 190146) 11/17/2020 4:19 PM
201 Wilshire Boulevard, Second Floor Superior Court of California
Santa Monica, California 90401 County of Stanislaus
Telephone: (800) 667-1880 Clerk of the Court
Facsimile: (800) 667-0991
Email: otto olh c.com By: Sabrina Bouldt, Deputy
Whit'~h
Attorney(s) for Plaintiff(s)
RYAN LIMA, JR.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF STANISLAUS
10
RYAN LIMA, JR, an individual; ) Case No. CV-20-000378
) Related Case No. CV-20-000418
12 Plaintiff(s), )
vs. ) PLAINTIFF RYAN LIMA, JR.'S SEPARATE
13 ) STATEMENT IN SUPPORT OF
J. JESUS MUNOZ VELASCO, an individual; ) PLAINTIFF'S MOTION TO COMPEL
KOOGER FARMS, LLC, a limited liability ) FURTHER RESPONSES TO REQUEST FOR
company; ROBERT TREY CHEYENNE ) PRODUCTION OF DOCUMENTS, SKT
FLETCHER, an individual; HENRY D. ) ONK, FROM OKFENBANT J. JESUS
MORRIS, JR., an individual; AMERICAN ) MUNOX VKLASCO
16 RIVER AG, INC., a corporation; SUZANNE E. )
TYLER, an individual; VICTOR DE ANDA, an Submitted with: (1) Notice of Motion; Motion to Compel; Memo.
)
17 individual; MARGARITA DE ANDA, an )
of Points 8c Auth.; Decl. of Otto Haselhoff; Exhibits;(2)
individual; KELLY E. POWERS, an individual; [Proposed] Order
)
18 BARBARA JEANETTE BOEGE, an individual; )
PAUL WEGNER, an individual; COUNTY OF ) ~Hearin:
19 STANISLAUS, a governmental entity; CITY OF ) Date: January 12, 2021
MODESTO, a governmental entity; THE STATE ) Time: 8:30 a.m.
20 OF CALIFORNIA including but not limited to ) Dept.: 22
CALTRANS and THE DEPARTMENT OF ) Judge: Hon. Stacey P. Speiller
21 TRANSPORTATION, a governmental entity; )
VANTAGE TRAILERS, INC, a corporation; and )
22 DOES 1-400 inclusive; )
)
23 Defendant(s). )
)
24 )
TO ALL PARTIES IN THIS ACTION AND TO THEIR ATTORNEYS OF RECORD
HEREIN:
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM DEFENDANT J. JESUS MUNOZ VELASCO
The following of Plaintiff RYAN LIMA, JR.'s Request for Production of Documents, Set One,
2 are at issue for purposes of this motion:
INTRODUCTORY ARGUMENT RE PROVIDING FURTHER RESPONSES
The responses to each item of discovery is clearly unacceptable and not in keeping with the
6 legislative intent of the discovery arena.
8 SPECIFIC DISCUSSION OF RK UEST FOR PRODUCTION OF DOCUMENTS SETS ONK
9 REQUEST 1:
10 All DOCUMENTS constituting policies of insurance, including but not limited to auto,
primary, construction, commercial general liability, homeowners, renters, excess, umbrella, and co-
12 insurance coverages which may apply to satisfy all or part of any judgment which may entered in this
13 action, or to indemnify or reimburse payments made to satisfy the judgment which may be had as
14 against any DEFENDANT herein, and specifically including auto, homeowners, business, umbrella,
15 accident, and liability coverages, and including but not limited to those coverages/policies identified in
16 Form Interrogatory No. 4.1.
17 RESPONSE TO REQUEST 1:
18 We agree to comply with this demand in part. All documents or things in the demanded
19 category are in our possession, custody or control. All will be produced except the applicable liability
20 insurance policy as to which an objection is made on the ground that the request seeks items which are
21 not relevant to the subject matter involved in this action. Responsive documents would not be
22 admissible in evidence nor is the request reasonably calculated to lead to the discovery of admissible
23 evidence. We agree to produce the declarations pages of the applicable policies (with premium amounts
24 and information regarding unrelated insured drivers and vehicles redacted) and attach them hereto as
25 Exhibit A.
26 REASON FURTHER RESPONSE IS REQUIRED:
27 After engaging in the meet and confer process, defendant agreed to produce further documents.
28 However, no such supplement was received by plaintiff.
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM DEFENDANT J. JESUS MUNOZ VELASCO
Requests 1, 2, 3, and 41 call for production of the insurance policies at issue. The failure to
produce the policies in their entirety is improper as plaintiff is entitled to the entire police under C.C.P.
$ 2017.210, i.e.,the contents of the insurance policy. California statute expressly provides that
insurance information is discoverable. Code of Civil Procedure $ 2017.210 states: "A party may obtain
discovery of the existence and contents of any agreement under which any insurance carrier may be
liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or
reimburse for payments made to satisfy the judgment. This discovery may include the identity of the
carrier and the nature and limits of the coverage. A party may also obtain discovery as to whether that
insurance carrier is disputing the agreement's coverage of the claim involved in the action, but not as to
10 the nature and substance of that dispute...." Case law also supports discovery of defendant's insurance
information, on the ground that insurance policies are directly relevant because they may assist in
12 resolution of the case. (See Laddon v. Superior Ct. (1959) 167 Cal.App,2d 391, 395-396 [" plaintiff" s
'discoverable interest'n defendant's liability insurance arises with the 'very pendency'f the action
against the assured, The conclusion is inescapable that ... the insurance policy is relevant to the subject-
matter...."]; accord Irvington-Moore, Inc. v. Superior Ct. (1993) 14 Cal.App.4th 733, 739-40; Pettie v.
Superior Ct. (1960) 178 Cal.App.2d 680, 688-689), Therefore, it would be an unusual circumstance in
17 which a defendant could properly refuse to disclose its insurance information in response to proper
discovery requests served by plaintiff. Despite agreeing to produce responsive documents during the
meet and confer process, this responding defendant has thus far failed to do so.
20 In this case, the policy language is particularly important because of the potential for coverage
21 that might be afforded to others even beyond the named insureds because of the way the policy might
22 be written to cover others deeming them insured and because the policy together with express
23 indemnity and additional insured ACCORD forms may provide coverage to others who would need to
24 be included in a demand
25
26 REQUEST 2:
27 All DOCUMENTS constituting policies of no-fault and/or med pay coverage which may be
used to reimburse PLAINTIFF for medical bills sustained in the INCIDENT.
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES To REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM DEFENDANT J. JESUS MUNOZ VELASCO
RESPONSE TO REQUEST 2:
We agree to comply with this demand in part. All documents or things in the demanded
category are in our possession, custody or control. All will be produced except the applicable liability
insurance policy as to which an objection is made on the ground that the request seeks items which are
not relevant to the subject matter involved in this action. Responsive documents would not be
admissible in evidence nor is the request reasonably calculated to lead to the discovery of admissible
evidence. We agree to produce the declarations pages of the applicable policies (with premium amounts
and information regarding unrelated insured drivers and vehicles redacted) and attach them hereto as
Exhibit A.
10 REASON FURTHER RESPONSE IS REQUIRED:
After engaging in the meet and confer process, defendant agreed to produce further documents,
However, no such supplement was received by plaintiff.
Requests 1, 2, 3, and 41 call for production of the insurance policies at issue. The failure to
produce the policies in their entirety is improper as plaintiff is entitled to the entire police under C C.P,
15 $ 2017.210, i.e.,the contents of the insurance policy. California statute expressly provides that
insurance information is discoverable. Code of Civil Procedure $ 2017.210 states: "A party may obtain
17 discovery of the existence and contents of any agreement under which any insurance carrier may be
liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or
reimburse for payments made to satisfy the judgment. This discovery may include the identity of the
20 carrier and the nature and limits of the coverage. A party may also obtain discovery as to whether that
insurance carrier is disputing the agreement's coverage of the claim involved in the action, but not as to
22 the nature and substance of that dispute...." Case law also supports discovery of defendant's insurance
23 information, on the ground that insurance policies are directly relevant because they may assist in
24 resolution of the case. (See Laddon v. Superior Ct. (1959) 167 Cal.App.2d 391, 395-396 ["plaintiff's
25 'discoverable interest'n defendant's liability insurance arises with the 'very pendency'f the action
26 against the assured. The conclusion is inescapable that ..~the insurance policy is relevant to the subject-
27 matter...."]; accord Irvington-Moore, Inc. v. Superior Ct. (1993) 14 Cal.App.4th 733, 739-40; Pettie v.
Superior Ct. (1960) 178 Cal.App.2d 680, 688-689). Therefore, it would be an unusual circumstance in
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM DEFENDANT J. JESUS MUNOZ VELASCO
which a defendant could properly refuse to disclose its insurance information in response to proper
discovery requests served by plaintiff. Despite agreeing to produce responsive documents during the
meet and confer process, this responding defendant has thus far failed to do so.
In this case, the policy language is particularly important because of the potential for coverage
that might be afforded to others even beyond the named insureds because of the way the policy might
be written to cover others deeming them insured and because the policy together with express
indemnity and additional insured ACCORD forms may provide coverage to others who would need to
be included in a demand
10 REQUEST 3:
All DOCUMENTS FERTAINING to any and all Additional Insured Endorsements and
12 certificates which potentially provide insurance coverage for any claim asserted against YOU,
13 regardless of whether coverage has been reserved or denied by any insurance company,
14 RESPONSE TO REQUEST 3:
We agree to comply with this demand in part. All documents or things in the demanded
16 category are in our possession, custody or control. All will be produced except the applicable liability
17 insurance policy as to which an objection is made on the ground that the request seeks items which are
not relevant to the subject matter involved in this action. Responsive documents would not be
19 admissible in evidence nor is the request reasonably calculated to lead to the discovery of admissible
20 evidence. We agree to produce the declarations pages of the applicable policies (with premium amounts
21 and information regarding unrelated insured drivers and vehicles redacted) and attach them hereto as
22 Exhibit A. Certificates attached as Exhibit B.
23 REASON FURTHER RESPONSE IS REQUIRED:
24 After engaging in the meet and confer process, defendant agreed to produce further documents.
However, no such supplement was received by plaintiff.
Requests 1, 2, 3, and 41 call for production of the insurance policies at issue. The failure to
27 produce the policies in their entirety is improper as plaintiff is entitled to the entire police under C.C.P.
$ 2017.210, i.e.,the contents of the insurance policy. California statute expressly provides that
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES To REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM DEFENDANT J. JESUS MUNOZ VELASCO
insurance information is discoverable. Code of Civil Procedure $ 2017.210 states: "A party may obtain
discovery of the existence and contents of any agreement under which any insurance carrier may be
liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or
reimburse for payments made to satisfy the judgment. This discovery may include the identity of the
carrier and the nature and limits of the coverage. A party may also obtain discovery as to whether that
insurance carrier is disputing the agreement's coverage of the claim involved in the action, but not as to
the nature and substance of that dispute...." Case law also supports discovery of defendant's insurance
information, on the ground that insurance policies are directly relevant because they may assist in
resolution of the case. (See I.addon v. Superior Ct. (1959) 167 Cal.App.2d 391, 395-396 [" plaintiff s
10 'discoverable interest'n defendant's liability insurance arises with the 'very pendency'f the action
against the assured. The conclusion is inescapable that ...the insurance policy is relevant to the subject-
12 matter...."]; accord Irvington-Moore, Inc. v. Superior Ct. (1993) 14 Cal.App.4th 733, 739-40; Pettie v.
13 Superior Ct. (1960) 178 Cal.App.2d 680, 688-689). Therefore, it would be an unusual circumstance in
14 which a defendant could properly refuse to disclose its insurance information in response to proper
15 discovery requests served by plaintiff. Despite agreeing to produce responsive documents during the
16 meet and confer process, this responding defendant has thus far failed to do so.
17 In this case, the policy language is particularly important because of the potential for coverage
that might be afforded to others even beyond the named insureds because of the way the policy might
19 be written to cover others deeming them insured and because the policy together with express
20 indemnity and additional insured ACCORD forms may provide coverage to others who would need to
21 be included in a demand
22
23 REQUEST 10:
24 Photographs, negatives, diagrams, video, motion pictures, slides, sketches, notes and/or other visual
25 representations of the ACCIDENT SCENE, and/or person(s), things or vehicle(s) involved in the
26 INCIDENT, taken at any time, including surveillance of the PLAINTIFF(S).
27 RESPONSE TO REQUEST 10:
28 This request seeks information which might reflect counsel's evaluation of the case and/or his
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM DEFENDANT J. JESUS MUNOZ VELASCO
impressions, conclusions, opinions, legal research and or theories, or are otherwise protected by the
attorney work product doctrine. Whether any such surveillance has been performed will be disclosed
after the defendants have deposed the plaintiff and any other witness supporting the plaintiff s claim of
serious injury. (See Suezaki v. Superior Court (1962) 58 Cal.2d 166, 177-178; Hogan and Weber:
California Civil Discovery, Work Product Protection: (2nd ed. 13:11, 13-34).
REASON FURTHER RESPONSE IS REQUIRED:
Request No. 10 concerns surveillance documents. No privilege applies and the documents
should be produced.
Defendant during the meet and confer process invoked Suezaki v. Superior Court (1962) 58
10 Cal.2d 166 to justify failure to provide surveillance documents. The Suezaki cases cited actually
supports plaintiff's position and the Federal case out of Pennsylvania relied upon by defendant is not on
12 point as Suezaki pointed out the federal rules differ and it is not persuasive on California law.
13 The case entirely relied upon defendant for their argument actually supports plaintiff position
14 that California has long held that photographs and films of surveillance are subject to discovery and,
15 further, that such evidence is not protected by the attorney-client or work-product privilege. (Suezaki v.
16 Superior Court (1962) 58 Cal.2d 166.) The Suezaki case, in fact, remains the leading authority in
17 California on this topic. The California Judicial Council has confirmed this position recognizing the
18 discoverability of sub rosa evidence as reflected in Judicial Council Form Interrogatory 13 series. Form
19 Interrogatory 13.1 specifically requires the responding party to identify the name, address and
20 telephone number of the individual conducting surveillance; the time, date, and place of surveillance;
21 and the name, address and telephone number of each person who has the original or copy of any
22 surveillance photograph, film or videotape. Moreover, Form Interrogatory 13.2 requires the responding
23 party to identify information for any written surveillance reports including the title,date, name of
24 author, and identification of the person who has the original or copy.
25 The Suezaki Court explained that surveillance evidence does not constitute a confidential
26 communication for purposes of the attorney-client privilege and further, that transmission of the
27 evidence to the attorney, even where the parties intend the matter to be confidential, "cannot create the
privilege if none, in fact, exists." (Suezaki, 58 Cal.2d at pp.175-177.) Suezaki further stated that the
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION To COMPEL FURTHER
RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM DEFENDANT J. JESUS MUNOZ VELASCO
films plaintiff sought were "not a graphic representation of the defendants, their activities, their mental
impressions, anything within their knowledge, or of anything owned by them" but instead were the
"representations of the plaintiffs, not of the defendants." (Ibid.) As the Court put it: "[a] picture of a
public bus on a public street is not a confidential communication." (Id. at 176). Thus, attorney-client
privilege objections to discovery requests for sub rosa evidence are without merit.
The absolute work-product protection of any writing reflecting an attorney s impressions,
conclusions, opinions or legal research theories afforded under Code of Civil Procedure I 2018.030(a)
was also deemed by the Suezaki Court to not apply tosub rosaof a plaintiff. (Ibid.) Similarly,
defendant cannot establish thatsub rosa evidence is exempt from discovery based on the qualified
10 work-product protection under Code of Civii Procedure I 2018.030(b). The party seeking discovery
must show that there is good cause for the production of the evidence being sought, while the party
12 claiming the statutory protection has the burden to prove that it applies and must do more than merely
13 state that they ~ant something protected. (See Fellows v. Superior Court (1980) 108 Cal.App.3d 55,
14 66.) The Suezaki Court determined that the work-product objection was without merit because good
15 cause indeed existed for the production of the sub rosa evidence in order to (1) protect against surprise;
16 and (2) prepare for an examination of the person who perforined the surveillance. (Id. at p.171.) Thus,
17 neither an attorney-client nor work product objection preclude discovery of sub rosa evidence.
As noted by the Suezaki Court, in addition to good cause existing for the discovery ofsub
19 rosa evidence in order to prepare the attorney to cross examine the investigator who did the sub rosa,
20 good cause also exists for the production of sub rosa evidence to avoid trial by ambush and unfair
21 surprise. In California, pretrial discovery procedures are designed to eliminate the need for guesswork
22 about the other side s evidence, with all doubts about discoverability resolved in favor of disclosure.
23 (See Glenfed Development Corp. v. Superior Court(1997) 53 Cal.App.4th 1113.) Courts have
24 construed the discovery statutes broadly, so as to uphold the right to discovery wherever possible.
25 (See Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 377-378.)
26 Moreover, even where the discovery statutes require a showing of "good cause" to obtain
27 discovery, the term is liberally construed to permit, rather than to prevent, discovery wherever possible.
28 (Id. at 377-378.) As noted in Norton v. Superior Court 24 Cal.App.4th 1750, courts are to be broad-
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION To COMPEL FURTHER
RESPONSES To REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM DEFENDANT J. JESUS iVIUNOZ VELASCO
minded in considering relevancy and provide the party seeking discovery substantial leeway. Errors
should be made in favor of granting discovery rather than in denying it. (Id. at 1761-2.) These laws of
discovery are meant to preclude trialby ambush and unfair surprise in trial. (See Associated Brewers
Dist C.o. v. Superior Court (1967) 65 Cal.2d 583, 587; Campain v. Safeway Stores, Inc. (1972) 29
Cal.App.3d 362, 366.) It is clear that California follows a liberal standard of discovery and favors a
finding of good cause for the discovery of sub rosa evidence to avoid b.ial by ambush as well as to
encourage settlements.
There is no merit to defendant's argument that disclosure the responses to request number 10
must wait until after "Mr. Pena's" deposition (who even is Mr. Pena) and defendant failed to set forth
10 any caselaw to support this nonsensical position outside of a Pennsylvania case more fully addressed
below. If the Suezaki Court determined good cause exited to protect against surprise, that is applicable
12 at both a deposition of a plaintiff as well as at the time of trial.
13 Furthermore, good cause exists for the discovery of sub rosa evidence as it isused to establish
14 foundation and authentication under Evidence Code $ $ 402-3, 1400-1402 and prevent improper video
15 editing. Evidence Code $ 403(a)(3) provides that "the proponent of the proffered evidence has the
16 burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is
17 inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence
of the preliminary fact, when: The preliminary fact is the authenticity of a writing." Sub rosa video is a
19 form of "writing" as defined by Evidence Code $ 250. Authentication of a "writing" is required before
20 it may be received in evidence under Evidence Code $ 1401. Evidence Code $ 1400 provides that
21 authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is
22 the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any
23 other means provided by law.
24 Under Evidence Code f 356, aka the rule of completeness, which states that if part of a
25 "writing" is given in evidence, the whole on the same subject may be inquired into, all sub rosa video
26 must be produced meaning raw, unedited footage, not just the portion defense may wish to rely upon.
27 The doctrine of completeness would require showing the "left out" portions of the video to put itin
28 complete context. This means that defendant is required to produce all of the hours ofsub
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM DEFENDANT J. JESUS MUNOZ VELASCO
rosa evidence it may have acquired not just a few edited video clips.
Failure to provide all footage of sub rosa evidence would present grounds to exclude any such
footage for lacking foundation and authentication or because it would cause too much prejudice and
undue delay under Evidence Code $ 352.
In addition, the 13.0 series provides for more than just providing the video tape footage. It leads
to the discovery of additional documentation from the investigator and allows plaintiff to take the
deposition of the person or persons who followed plaintiff around and question them as to their tactics.
Plaintiff is permitted to check all documentation or billing relating to the sub rosa to confirm all dates
and times of produced sub rosa is accurate and to get the true context of the footage. It also details of
10 the chain of custody of every piece of original video and how the final product was created and
establishes if editing or manipulation was done and how.
12 Of course, as defendant no doubt is aware, not all sub rosa is harmful to a plaintiff, which is
13 another reason it is discoverable. Sub rosa may be helpful for a plaintiff's case because itaccurately
reflects a plaintiff's injuries or ongoing medical condition, or because it shows nothing helpful or
15 harmful, and tends to be an unspoken reason as to why defense attorney's generally attempt to not fully
16 turn over all items and documents responsive to surveillance discovery. The evidence can be used to
17 Plaintiff's advantage so better to bury it. Not quite, since it is all discoverable.
Further, surveillance discovery allows a plaintiff to learn the identity of the investigator so that
19 they might examine the investigator s experience, the amount of time spent secretly recording plaintiff,
20 and identify any biases held by the investigator which may include selectively filming plaintiff or
21 setting up scenarios to "bait" the plaintiff.
22 Finally, the federal case cited by defendant is not persuasive authority for a number of reasons.
23 The Suezaki Court pointed out that it was "expressly held in Greyhound that, insofar as Hickman v.
24 Taylor, 329 U.S. 495, held to the contrary tregarding work product] under federal law, it was not the
25 law of California." (Suezaki, supra 58 Cal.2d at 178 citing Greyhound Corp. v, Superior Court of
26 Merced County (1961} 56 Cal.2d 355, 401). Clearly, Snead is a Pennsylvania federal case and not a
27 California court interpreting California discovery law. Further, insofar as the Pennsylvania case
allowed defendants to "delay" producing until aAer the plaintiff's deposition this is not within
10
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET OiVE, FROM DEFEVDANT J. JESUS MUNOZ VELASCO
California s policies against gamesmanship, surprise, preparation, settlement, and waste of judicial
resources. Defendant was unable to point to any California cases that authorized such tactics, thus why
a 1973 Pennsylvania case was cited and the meet and confer was devoid of California authority.
Finally, this case was contradicted within its own district in Babyage.corn, Inc. v. Toys "R" Us,
Inc. (E.D. Pa. 2006) 458 F. Supp. 2d 263, 266 ["... impeachment value alone does not justify a delay
where, as here, the disputed statements constitute substantive evidence relevant to the parties claims
and defenses... "The retailer plaintiffs are not entitled to unilaterally withhold the recordings and
transcripts, even temporarily. No delay is warranted because the arguments advanced do not
demonstrate any cause, no less "good cause," for the delay. Fed.R.Civ.Proc. 26(c).]" Therefore, Snead
10 v. American Export-Ishrandtsen Lines, Inc. (E.D. Pa. 1973) 59 F.R.D. 148 bares no consequence on
this matter.
12
13 RE@VEST
41'll
DOCUMENTS PERTAINING to any and allinsuring agreements involving this load, and
15 insuring YOU or any other any PERSON, including copies of all COL, Auto, Umbrella, excess and
16 Products Completed Operations policies, and all other liability policies.
17 RESPONSE TO REQVKST 41:
18 We agree to comply with this demand in part. All documents or things in the demanded category are in
19 our possession, custody or control. All will be produced except the applicable liability insurance policy
20 as to which an objection is made on the ground that the request seeks items which are not relevant to
21 the subject matter involved in this action. Responsive documents would not be admissible in evidence
22 nor is the request reasonably calculated to lead to the discovery of admissible evidence. We agree to
23 produce the declarations pages of the applicable policies (with premium amounts and information
24 regarding unrelated insured drivers and vehicles redacted) and attach them hereto as Exhibit A.
25 REASON FVRTHKR RESPONSE IS REQVIRED:
26 After engaging in the meet and confer process, defendant agreed to produce further documents.
27 However, no such supplement was received by plaintiff.
Requests 1, 2, 3, and 41 call for production of the insurance policies at issue. The failure to
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM DEFENDANT J. JESUS MUNOZ VELASCO
produce the policies in their entirety is improper as plaintiff is entitled to the entire police under C.C.P.
$ 2017.210, i.e.,the contents of the insurance policy. California statute expressly provides that
insurance information is discoverable. Code of Civil Procedure $ 2017.210 states: "A party may obtain
discovery of the existence and contents of any agreement under which any insurance carrier may be
liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or
reimburse for payments made to satisfy the judgment. This discovery may include the identity of the
carrier and the nature and limits of the coverage. A party may also obtain discovery as to whether that
insurance carrier is disputing the agreement's coverage of the claim involved in the action, but not as to
the nature and substance of that dispute...." Case law also supports discovery of defendant's insurance
10 information, on the ground that insurance policies are directly relevant because they may assist in
resolution of the case. (See Laddon v. Superior Ct. (1959) 167 Cal.App.2d 391, 395-396 ["plaintiff's
12 'discoverable interest'n defendant's liability insurance arises with the 'very pendency'f the action
13 against the assured. The conclusion is inescapable that ...the insurance policy is relevant to the subject-
14 matter...."]; accord Irvington-Moore, Inc. v. Superior Ct. (1993) 14 Cal.App.4th 733, 739-40; Pettie v.
15 Superior Ct. (1960) 178 Cal.App.2d 680, 688-689). Therefore, it would be an unusual circumstance in
16 which a defendant could properly refuse to disclose its insurance information in response to proper
17 discovery requests served by plaintiff. Despite agreeing to produce responsive documents during the
meet and confer process, this responding defendant has thus far failed to do so.
19 In this case, the policy language is particularly important because of the potential for coverage
20 that might be afforded to others even beyond the named insureds because of the way the policy might
21 be written to cover others deeming them insured and because the policy together with express
22 indemnity and additional insured ACCORD forms may provide coverage to others who would need to
23 be included in a demand
24 REQUEST NO. 42:
25 All DOCUMENTS PERTAINING to rules, regulations, policies and/or procedures
26 PERTAINING to the load at issue and the loading, transporting of goods, and packing of goods,
27 including recommendations as to temperature and condition of merchandise.
]2
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM DEFENDANT J. JESUS MUNOZ VELASCO
1 RESPONSE TO 42:
All DOCUMENTS PERTAINING to rules, regulations, policies and/or procedures
3 PERTAINING to the load at issue and the loading, transporting of goods, and packing of goods,
4 including recommendations as to temperature and condition of merchandise.
5 REASON FURTHER RESPONSE REQUIRED:
6 Request No. 42 seeks rules and regulations regarding the load, transportation of goods, etc. again all of
7 which are highly relevant especially insofar as issues of control and respondeat superior liability are
8 concerned.
Furthermore, rules and regulations go directly to a number of highly relevant issues concerning
10 the accident and the relationship between this defendant and others, For example, if there are rules on
11 how to drive the truck or making shipments timely and these rules were violated that would be evidence
12 of negligence or evidence that the driver was under a tight schedule encouraging him to coast through
13 stops. Depending on who issued the rules and regulations, regulations concerning the transport of
14 goods, the packing and even temperature control goes directly to the central issue of "control" as well
15 as the issue of joint venture because it tends to show that whoever is issuing the rules assumes control
16 over the person who must follow them. Plaintiff made it clear he was not seeking rules and regulations
17 in the public domain, rather rules and regulations and company policies pertaining to Mr. Velasco and
18 the trip at issue, whether issued by this responding defendant or other defendants, if responding
19 defendant happened to have a copy of those items.
20 DEFENDANT'S EXHIBIT "M" PRODUCED IN RESPONSE TO REQUESTS 76-82
Defendant's Exhibit M referenced 20190392 Davie4 ECM download, but nothing was produced
22 under this exhibit tab with the verified discovery responses.
23 REASON FURTHER RESPONSE IS REQUIRED:
24 Exhibit M, the ECM download, isreferenced in defendant's responses but the download was
25 not provided, formally, in discovery Although it is was previously informally produced, the desire for
26 admissibility and the elimination of any issues in that regard require that is be produced in a sworn,
27 verified discovery response. Although defendant agreed to produce a verified copy of the exhibit, thus
28 far it has not been produced.
13
PLAINTIFF RYAN LIMA, JR.'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER
RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FROM DEFENDANT J. JESUS MUNOZ VELASCO
LAW OFFICES OF OTTO L. HASELHOFF, P.C.
OTTO L. HASELFIOFF
Attorney for Plaintiff