PLS 54 Memorandum of Points and Authorities

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Memorandum of Points and Authorities in Support of Plaintiff’s Motion
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DAVID G. WOTTON, ESQ. SBN 172882
Maiolo, Campbell and Wotton
235 East Washington St.
Petaluma, CA 94952
Telephone: (707) 799-1400
Facsimile: (707) 799-1411
Attorney for Plaintiff(s)
IZABELLA DANIELLI
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA
IZABELLA DANIELLI,
Plaintiff,
vs.
NORMANDY MEATS, LLC, et al.,
Defendants
Case No.: 2875
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
PLAINTIFF’S MOTION FOR ORDER
COMPELLING FURTHER DISCOVERY
Date: 4/23/14
Time: 11:00 A. M.
Judge: Hon. Marie Muchow
Dept.: 1
I) INTRODUCTION
Plaintiff IZABELLA DANIELLI is a 26-year-old recent graduate of UCLA Law School
She works for Jones, Lewinsky & Smith, LLC, in San Francisco. On May 31, 2013, Plaintiff
received the news that she had passed the bar exam, which she had taken in February, and on
June 15, was sworn in as an attorney. Plaintiff specializes in international business transactions
and is fluent in Mandarin Chinese, Portuguese, and Spanish. With those skills, Izabella was
committed to long hours and a heavy international travel schedule.

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II) STATEMENT OF FACTS
On the evening of April 25, 2013, Plaintiff was driving south on Stony Point Road. She
was wearing her seatbelt and had fully stopped at the intersection with West College Avenue.
when she was rear-ended by a tractor-trailer driven by DANTE DRISCOLL and owned by
NORMANDY MEATS, LLC. Her car, a 2013 Lexus, was totaled. The rear window shattered
and the entire trunk was mangled. The California Highway Patrol responded and prepared a
Traffic Collision Report. Izabella was knocked unconscious and taken to Kaiser Hospital, where
she was treated for head, hand chest, shoulder, and knee injuries. A head CT scan and brain MRI
ruled out hemorrage and other traumatic lesions. CT scans of her spine proved negative for
fractures. Izabella subsequently followed up with her personal physician, who placed her on
temporary total disability through November 30, 2013. She has now returned to work, but is
continuing to suffer from memory loss, confusion, and difficulty with word choice. She has also
become occasionally prone to dropping things.
On January 15, 2014, defendants were served, via U. S. Mail, a Request for Production of
Documents. On February 18, defendants’ counsel Randolph White responded by objecting to the
requests without actually responding to them. Repeated attempts were made by plaintiff and
counsel to arrange a “meet and confer” meeting, without success. Opposing counsel also not only
refused to provide a privilege log, but even copies of the plaintiff’s own statements that the
defense counsel had possession of.

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III) STATEMENTS TAKEN BY THE OPPOSING PARTY OF ANOTHER PARTY
ARE NOT WORK PRODUCT AND ARE THEREFORE NOT AFFORDED
ANY PRIVILEGE FROM PRODUCTION TO THE REQUESTING PARTY
A) The court should compel production of plaintiff’s statements because they are
relevant and not privileged. California Rule of Professional Conduct 2-100
“Communication With a Represented Party (A)” states that “While
representing a client, a member shall not communicate directly or indirectly
about the subject of the representation with a party the member knows to be
represented by another lawyer in the matter, unless the member has the
consent of the other lawyer.” Such communications are barred because they
would give the attorney an unfair advantage over an opposing party who did
not have counsel present. These same regulations encourage disclosure of all
statements of a plaintiff while they do not have a lawyer present as they give a
skilled professional an unfair advantage. This is why the plaintiff must have
access to her statements and if the defense is going to claim a privilege they
must produce a privilege log.
In Coito v. Superior Court (2012) 54 Cal. 4th 480 [278 P.3d 860; 142 Cal. Rptr. 3d 607]
and Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal. App. 4th
214 [54 Cal. Rptr.
2d 575], the Court only addressed the issue of non-party witness statements.
B) The plaintiff’s recorded statement given to the insurance company’s
investigator was not protected by the attorney-client privilege before the
Discovery Act. However, the Court’s holding Holm v. Superior Court (1954)
42 Cal. 2d 500 [267 P. 2d 1025] still applies. Any statements taken from the

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plaintiff either by or directed by the attorney when she is already represented
by a different attorney would be an unethical communication in violation of
Rule of Professional Conduct 2-100 and therefore would be not only
discoverable but would also leave the directing attorney subject to disciplinary
proceedings.
IV) EVEN IF THE COURT DEEMS A PARTY’S STATEMENTS TO BE WORK
PRODUCT, IT IS AT BEST A QUALIFIED PRIVILEGE WHICH CANNOT
BE DIRECTED BY AN ATTORNEY (CALIFORNIA RULES OF COURT,
RULE 2-100)
A) The court should compel the defendants to produce a privilege log. Code Civ.
Proc., § 2031.240(c)(1) states that “if an objection is based on a claim of
privilege or a claim that the information sought is protected work product, the
response shall provide sufficient factual information for other parties to
evaluate the merits of that claim, including if necessary providing a privilege
log. If the court rules only on this issue, request that the court provide an order
compelling production of the privilege log and allow the plaintiff to compel
the production of any and all statements which are not privileged after an
analysis of the attorney work product privilege.” At the very least the court
should compel the production of the privilege log, as well as a response to
Request No. 4.
Coito states that it must be shown that the statements do not contain the attachment
“Impressions. QUALIFIED WORK PRODUCT.” Usually, recorded statements are taken pre-

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litigation and not at the direction of the defense counsel and therefore does not contain the
attachment “Impressions”.
B) The court should compel the defendants to produce the plaintiff’s statements.
The plaintiff is entitled to her statements because otherwise the insurance
professional had an unfair advantage. Additionally, the plaintiff was under the
influence of medication at the time the statements were taken. Allowing the
defense to use this statement would allow the defense the unfair advantage of
using a statement that was obtained while the plaintiff was acutely injured,
suffering from the effects of a mild brain injury and under the influence of
pain medication and was not represented such that a fair record could have
been maintained. The plaintiff needs to have access to the statement to
adequately prepare for the trial so that her statements may not be unfairly used
against her by opposing counsel. Opposing counsel must produce the privilege
log.
V) PLAINTIFF IS ENTITLED TO SANCTIONS BECAUSE OPPOSING
COUNSEL FAILED TO “MEET AND CONFER”, ABUSED THE
DISCOVERY PROCESS, AND FAILED TO PROVIDE A PRIVILEGE LOG
(CODE CIV. PROC., §§ 2023.020, 2023.030, 2031.240(c)(1))
A) The court should award sanctions for failure to “meet and confer”. Regardless
of the outcome of a particular discovery motion, the court will impose a
monetary sanction ordering that any party or attorney who fails to “meet and
confer” as required must reimburse the opposing party for their expenses.

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Plaintiff attempted to “meet and confer” in an attempt to avoid the expense of
a discovery motion to no avail.
B) The court should award sanctions for abuse of the discovery process. Code of
Civil Procedure § 2023.030 states that the Court may impose monetary
sanctions for abuse or misuse of the discovery process. The court can impose
a monetary sanction order that any party or attorney engaging in or advising
the misuse of the discovery process, or both, reasonably reimburse the
opposing party for their expenses. Specifically, Code Civ. Proc., §
2023.030(a) states: “The court may impose a monetary sanction ordering that
one engaging in the misuse of the discovery process, or any attorney advising
that conduct, or both pay the reasonable expenses, including attorney's fees,
incurred by anyone as a result of that conduct. The court may also impose this
sanction on one unsuccessfully asserting that another has engaged in the
misuse of the discovery process, or on any attorney who advised that
assertion, or on both. If a monetary sanction is authorized by any provision of
this title, the court shall impose that sanction unless it finds that the one
subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.” There is no doubt
in this case that this motion is the direct result of the defendants’ failure to
provide adequate responses to legitimate discovery requests.
C) The court should award sanctions for failure to provide a privilege log. Code
Civ. Proc., §2031.240(c)(1) states that “If an objection is based on a claim of
privilege or a claim that the information sought is protected work product, the

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response shall provide sufficient factual information for other parties to
evaluate the merits of that claim, including, if necessary, a privilege log.” the
Court may impose monetary sanctions for abuse of the discovery process,
including failure to provide a privilege log. The defendants failed to provide a
privilege log as required by Code Civ. Proc., §2031.240(c)(1), despite
repeated requests to do so.
The plaintiff asks the Court to award her $1,500 in monetary sanctions against the
defendants. The bases for these are set forth in the Declaration of David G. Wotton.
VI) CONCLUSION
In conclusion, the plaintiff respectfully asks the Court for an order that the defendants: 1)
Provide COMPLETE VERIFIED RESPONSES to Plaintiff’s Request for Production, Nos. 3 and
4, within 10 days of the Court’s order; and 2) Pay monetary sanctions to the plaintiff in the
amount requested above.
Dated: April 23, 2014 Respectfully submitted,
By: __________________
David G. Wotton, Esq.,
Maiolo, Campbell & Wotton
Attorney for Plaintiff

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PLS 54 Memorandum of Points and Authorities

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