SCOTT, et al. vs AMERICAN AUTOMOBILE ASSOCIATION OF NORTHERN CALIFORNIA, NEVADA & UTAH ("AAA NCNU"), A CORPORATION, et al.

24CV086445: SCOTT, et al. vs AMERICAN AUTOMOBILE ASSOCIATION OF NORTHERN CALIFORNIA, NEVADA & UTAH ("AAA NCNU"), A CORPORATION, et al. 08/25/2026 Hearing on Motion for Protective Order filed by Marlin Scott (Plaintiff) + CRS# 679391808799 in Department 518

Tentative Ruling - 08/20/2026 Mark Fickes

The Motion for Protective Order filed by Marlin Scott, Darian Scott on 06/26/2026 is Granted in Part.

PRELIMINARY OBSERVATIONS

Before the Court are a total of six discovery motions, argued the same day, in a single-vehicle personal injury case. The Civil Discovery Act was built on the premise that counsel can resolve most disputes without judicial help, and it makes the court the forum of last resort, not the first stop. The parties have inverted that design.

BACKGROUND

This personal injury action arises from an August 20, 2022 roadside incident in which Plaintiffs Marlin Scott and Darian Scott were injured while awaiting a tow of their Hertz rental vehicle after a hit-and-run driver struck the tow truck. Plaintiff Darian Scott claims injuries to his back and neck. Trial is set for December 21, 2026. (Finck Prot. Order Decl. ¶ 3; Finck Compel Decls. (June 10, 2026) ¶ 3.)

Three motions are before the Court as between Plaintiffs and Defendant The Hertz Corporation ("Hertz"). The first is Plaintiffs' motion for a protective order directed at Hertz’s Request for Production No. 27, which seeks "all video of Plaintiff Darian Scott playing basketball during his college career," and for an order sequencing discovery. (Finck Prot. Order Decl. ¶ 10, Ex. C.) The second and third are Scott's motions to compel Hertz to respond to his Requests for Production of Documents, Set Two (Nos. 10 through 26), and his Special Interrogatories, Set One (Nos. 1 through 22), both served on April 3, 2026. (Finck Compel Decls. ¶ 4.)

Plaintiff filed a separate declaration of Terry M. Finck in support of each motion to compel, and Hertz filed a separate declaration of Matthew Brenner in opposition to each; because the paired declarations are materially identical, the Court cites them together as the "Finck Compel Decls." and the "Brenner Compel Decls."

The discovery timeline common to the two motions to compel is undisputed. Plaintiff served the requests for production and the special interrogatories on April 3, 2026. Plaintiff granted two extensions, the last to May 27, 2026, which Plaintiff advised would likely be the last. The extended deadline passed with no response. On June 3, 2026, Plaintiff demanded verified, objection-free responses by June 8, 2026, and Hertz served none. Plaintiff filed the two motions to compel on June 11, 2026. (Finck Compel Decls. ¶¶ 4, 6-10, Exs.

A, C, D.) Hertz served verified responses to both sets on July 22, 2026, after the motions were filed. (Brenner Compel 24CV086445: SCOTT, et al. vs AMERICAN AUTOMOBILE ASSOCIATION OF NORTHERN CALIFORNIA, NEVADA & UTAH ("AAA NCNU"), A CORPORATION, et al. 08/25/2026 Hearing on Motion for Protective Order filed by Marlin Scott (Plaintiff) + CRS# 679391808799 in Department 518 Decls. ¶ 9.) Those responses carried a preliminary statement, general objections, and specific objections, and Hertz thereafter circulated unsigned draft amended responses by email on August 7 and August 10, 2026, which it never served or verified. (Finck Compel Reply Decl. (Aug. 18, 2026) ¶¶ 5, 6, 9, 15, Exs.

A, B, F.)

As to the protective order, Hertz propounded Request No. 27 and its own June 11, 2026 discovery, and served verified responses to Plaintiff's April 3 discovery on July 22, 2026. (Brenner Prot. Order Decl. ¶¶ 7, 10.) The parties met and conferred on Request No. 27 by an exchange of emails on June 11 and 12, 2026 and reached an impasse. (Brenner Prot. Order Decl. ¶ 8; Finck Prot. Order Decl. ¶ 11.)

LEGAL STANDARD

On a motion for a protective order, the court may, for good cause shown, make any order that justice requires to protect a party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense, including an order that specified items need not be produced at all. (Code Civ. Proc., §§ 2031.060, subds. (b), (b)(1), 2030.090, subd. (b).) The court is vested with wide discretion to prevent oppression. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418.) The moving party bears the burden of establishing good cause. (Williams v.

Superior Court (2017) 3 Cal.5th 531, 549-550.) The court shall limit discovery where its burden or intrusiveness clearly outweighs the likelihood of leading to admissible evidence, and shall restrict discovery that is unreasonably cumulative or obtainable from a more convenient, less burdensome source. (§§ 2017.020, subd. (a), 2019.030, subd. (a)(1).)

On a motion to compel an initial response, a party that fails to serve a timely response to interrogatories or an inspection demand waives all objections, including privilege and work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) The propounding party may then move to compel a response, without a showing of good cause, a meet-and-confer declaration, or a separate statement, and without regard to the 45-day limit that governs motions to compel further responses. (§§ 2030.290, subd. (b), 2031.300, subd. (b); Sinaiko Healthcare Consulting, Inc. v.

Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403-404 [construing the interrogatory statute and applying by parity to the inspection-demand statute].) The court may relieve a party of the waiver only on motion, and only on a determination that the party subsequently served a response in substantial compliance with the statutes governing the form and content of responses and that the failure to respond timely resulted from mistake, inadvertence, or excusable neglect. (§§ 2030.290, subd. (a)(1)-(2), 2031.300, subd. (a)(1)-(2); Sinaiko, supra, 148 Cal.App.4th at p. 404.)

The court shall impose a monetary sanction against a party that unsuccessfully makes or opposes such a motion, unless the party acted with substantial justification or other circumstances make the sanction unjust. (§§ 2030.290, subd. (c), 2031.300, subd. (c).)

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV086445: SCOTT, et al. vs AMERICAN AUTOMOBILE ASSOCIATION OF NORTHERN CALIFORNIA, NEVADA & UTAH ("AAA NCNU"), A CORPORATION, et al. 08/25/2026 Hearing on Motion for Protective Order filed by Marlin Scott (Plaintiff) + CRS# 679391808799 in Department 518 DISCUSSION

I. Motion for Protective Order

A. Request No. 27 Is Narrowed

Hertz contends the basketball footage is relevant to Darian Scott's pre-incident physical condition, causation, and credibility. Plaintiffs respond that the footage is not relevant to any condition placed in controversy, relying on Britt v. Superior Court (1978) 20 Cal.3d 844, 863- 864, Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014-1016, and Hallendorf v. Superior Court (1978) 85 Cal.App.3d 553, 557. Those are constitutional privacy and overbreadth authorities; they establish that placing a physical condition in controversy does not open the whole of a plaintiff's history, but they do not fix the outer limit of relevance for non-privileged material. Under section 2017.010, the footage bears at least some relevance to Darian Scott's preincident condition and his account of his injuries. The Court declines to bar it on relevance grounds.

The strength of that showing is another matter. Hertz calls the footage "critical to defendant's biomechanical expert's opinions" (Prot. Order Opp. at p. 2), but no expert has been designated and no expert declaration accompanies the opposition; and Hertz describes the collision in detail without lodging or authenticating the video it references. The unsworn statements of counsel are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11; Cal. Rules of Court, rule 3.1306(a).) Plaintiffs' cumulativeness argument, however, is not persuasive: deposition testimony and video are not equivalent, and Hertz's acknowledgment that the footage "may be cumulative" (Prot.

Order Opp. at p. 8) does not make it "unreasonably cumulative or duplicative" under section 2019.030. What defeats the request as written is its breadth. A demand for "all video" of an entire four-year collegiate career, including every practice, is not reasonably particularized (§ 2031.030, subd. (c)(1); Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 222-224), and much responsive footage, if it exists, is obtainable by subpoena from the university, its conference, and broadcasters (Calcor, supra, 53 Cal.App.4th at p. 225).

The Court narrows Request No. 27 to game footage depicting instances of physical contact that is currently in Plaintiffs' possession, custody, or control.

B. Sequencing Is Denied Without Prejudice

Plaintiffs' request to relieve them of responding to Hertz's June 11 discovery until Hertz served Code-compliant responses rested on the premise that Hertz had served nothing. Hertz served verified responses on July 22, 2026. (Brenner Prot. Order Decl. ¶ 10.) Whether those responses are substantially compliant is the question presented by the motions to compel, not a basis for a protective order excusing Plaintiffs from their own obligations. The sequencing request is denied without prejudice.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV086445: SCOTT, et al. vs AMERICAN AUTOMOBILE ASSOCIATION OF NORTHERN CALIFORNIA, NEVADA & UTAH ("AAA NCNU"), A CORPORATION, et al. 08/25/2026 Hearing on Motion for Protective Order filed by Marlin Scott (Plaintiff) + CRS# 679391808799 in Department 518

C. Sanctions Are Denied

The protective-order motion is granted in part and denied in part, and neither side wholly prevailed. Plaintiffs had a valid claim of right to a protective order as to the overbroad request, which is substantial justification. (Foothill Properties v. Lyon/Copley Corona Associates (1996) 46 Cal.App.4th 1542, 1558.) Hertz was substantially justified in opposing a categorical bar of relevant discovery. The request for $6,011 in sanctions is denied.

II. Motions to Compel (Requests for Production, Set Two, and Special Interrogatories, Set One)

The two motions to compel rise and fall together, and the Court addresses them as one. The requests for production are governed by sections 2031.210 through 2031.300; the special interrogatories by sections 2030.210 through 2030.290. The operative facts are identical.

A. Hertz Waived its Objections

A party that fails to serve a timely response waives every objection. (§§ 2030.290, subd. (a), 2031.300, subd. (a); Sinaiko, supra, 148 Cal.App.4th at p. 404; Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.) Hertz's responses were due, as extended, on May 27, 2026, and Hertz served nothing until July 22, 2026. (Finck Compel Decls. ¶¶ 7, 8; Brenner Compel Decls. ¶ 9.) Every objection was therefore waived. The July 22 responses nonetheless asserted a preliminary statement, general objections, and specific objections, including a "vague and ambiguous" objection to Interrogatory No. 1. (Finck Compel Reply Decl. ¶ 6, Exs. A, B.) Those objections are a nullity, and Plaintiff is entitled to an order compelling responses without objection. (Sinaiko, supra, 148 Cal.App.4th at p. 408.)

B. Late Service Did Not Moot the Motions

Service of untimely responses does not divest the court of authority to hear and grant a motion to compel; a court may deny the motion as unnecessary only where the untimely response contains no objections and sets forth legally valid answers. (Sinaiko, supra, 148 Cal.App.4th at pp. 408- 409.) Hertz's responses carried the very objections the statute had waived, so that path is unavailable, and sanctions remain available even though the discovery arrived after the motions were filed. (Id. at p. 409.)

C. Hertz Is Not Entitled to Relief From Waiver

Relief from waiver is available only on a noticed motion, which Hertz has not filed; its counsel

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV086445: SCOTT, et al. vs AMERICAN AUTOMOBILE ASSOCIATION OF NORTHERN CALIFORNIA, NEVADA & UTAH ("AAA NCNU"), A CORPORATION, et al. 08/25/2026 Hearing on Motion for Protective Order filed by Marlin Scott (Plaintiff) + CRS# 679391808799 in Department 518 acknowledged in writing that one would be required. Relief also requires a conjunctive showing of substantial compliance and mistake, inadvertence, or excusable neglect. (§§ 2030.290, subd. (a)(1)-(2), 2031.300, subd. (a)(1)-(2); Sinaiko, supra, 148 Cal.App.4th at p. 404.)

Hertz satisfies neither. The excuses it offers, overlapping trial commitments, counsel's family-medical issues, and a corporate investigation, appear in no declaration; the Brenner declarations recite only dates and communications. Argument of counsel is not evidence. (In re Zeth S., supra, 31 Cal.4th at p. 413, fn. 11.) A misinterpretation of the waiver statute or press of business is not excusable neglect. (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 275-276.) The document-motion opposition compounds the problem: it argues the interrogatory statutes and asks the Court to deny a "Special Interrogatories" motion (Doc.

Mot. Opp. at pp. 4, 9), and the interrogatory-motion opposition asserts the responses were served "without objections" while asking the Court to preserve Hertz's "limited objections" (Interrog. Mot. Opp. at pp. 5-6). Neither inconsistency assists Hertz.

D. The Unserved Drafts Do Not Establish Compliance

The amended responses are unsigned drafts, circulated in draft form and never served or verified. (Finck Compel Reply Decl. ¶¶ 7, 9, 15, Exs. D, F.) A response must be signed under oath, and any response containing an objection must be signed by the attorney. (§§ 2030.250, subds. (a), (c), 2031.250, subds. (a), (c).) An unverified response is tantamount to no response at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) The operative responses remain the objection-laden July 22 set, and Hertz's decision to rewrite them confirms they did not comply when served.

E. Sanctions Are Warranted on Each Motion

Sanctions are mandatory against a party that unsuccessfully opposes a motion to compel absent substantial justification. (§§ 2030.290, subd. (c), 2031.300, subd. (c); Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 789-790.) Hertz has shown none. Its contention that the awards are duplicative goes to amount, not entitlement, and any award is limited to the reasonable expenses incurred on each motion. (Cornerstone, supra, 56 Cal.App.5th at pp. 790-791.) Plaintiff's counsel apportioned his time between the two motions and seeks, on each, three hours to prepare the motion and two anticipated hours for the reply and appearance, at $425 per hour, plus a $61 filing fee. (Finck Compel Decls. ¶¶ 13, 14.) That yields $2,186 on each motion (five hours at $425, or $2,125, plus $61).

III. Meet and Confer and Discovery Referee

As the Preliminary Observations explain, the parties' meet-and-confer efforts fell short of what section 2016.040, subdivision (a), requires. A motion to compel an initial response requires no meet-and-confer (Sinaiko, supra, 148 Cal.App.4th at p. 404; Leach, supra, 111 Cal.App.3d at pp.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV086445: SCOTT, et al. vs AMERICAN AUTOMOBILE ASSOCIATION OF NORTHERN CALIFORNIA, NEVADA & UTAH ("AAA NCNU"), A CORPORATION, et al. 08/25/2026 Hearing on Motion for Protective Order filed by Marlin Scott (Plaintiff) + CRS# 679391808799 in Department 518 905-906), so the motions are not defective for its absence; but the volume of motion practice, and the parties' reliance on correspondence in lieu of conference, lead the Court to raise the question of a referee. The Court directs the parties to be prepared to address at the hearing whether the appointment of a discovery referee is appropriate.

Section 639, subdivision (a)(5), authorizes the court, on its own motion, to appoint a referee to hear and determine any and all discovery motions and disputes and to report findings and recommendations. (Code Civ. Proc., § 639, subd. (a)(5).) Such an appointment requires exceptional circumstances specific to the case. (Code Civ. Proc., § 639, subd. (d)(2).)

CONCLUSION

The Motion for Protective Order is GRANTED IN PART. Request for Production No. 27 is narrowed to game footage from Darian Scott's collegiate basketball career depicting instances of physical contact that is currently in Plaintiffs' possession, custody, or control. Plaintiffs need not produce practice footage, footage unrelated to physical contact, or footage held by third parties. Within thirty (30) days of this order, Plaintiffs shall produce responsive footage within their possession, custody, or control, or serve a verified statement that they have none. The request to sequence discovery is DENIED without prejudice. The request for monetary sanctions is DENIED.

Motion to Compel Responses to Requests for Production, Set Two. GRANTED IN PART. Within fifteen (15) days of this order, Hertz shall serve verified responses, without objection, in substantial compliance with Code of Civil Procedure sections 2031.210 through 2031.280, and shall produce all responsive documents identified by the specific request number to which they respond, or serve statements of inability to comply conforming to section 2031.230.

The motion is DENIED AS UNNECESSARY only as to those requests for which Hertz has already served verified answers without objection. Hertz's request for relief from waiver is DENIED without prejudice. Monetary sanctions of $2,186 are GRANTED against Hertz and its counsel, jointly and severally, payable within thirty (30) days.

Motion to Compel Responses to Special Interrogatories, Set One. GRANTED IN PART. Within fifteen (15) days of this order, Hertz shall serve responses, without objection, in substantial compliance with Code of Civil Procedure sections 2030.210, 2030.220, 2030.230, and 2030.240, signed and verified as required by section 2030.250.

The motion is DENIED AS UNNECESSARY only as to those interrogatories for which Hertz has already served verified answers without objection. Hertz's request for relief from waiver is DENIED. Additional monetary sanctions of $2,186 are GRANTED against Hertz and its counsel, jointly and severally, payable within thirty (30) days.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV086445: SCOTT, et al. vs AMERICAN AUTOMOBILE ASSOCIATION OF NORTHERN CALIFORNIA, NEVADA & UTAH ("AAA NCNU"), A CORPORATION, et al. 08/25/2026 Hearing on Motion for Protective Order filed by Marlin Scott (Plaintiff) + CRS# 679391808799 in Department 518

PLEASE NOTE: Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become the order of the Court unless it is contested before 4:00 PM on the court day preceding the noticed hearing.

To contest a tentative ruling, a party should do the following:

First, the party must notify Department 518, by email at Dept518@alameda.courts.ca.gov and copy all counsel of record and self-represented parties. The contesting party must state in the subject line of the email the case name, case number and motion.

Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this Ruling" button, enter the party's name and a brief statement of the party's reason for contesting the tentative, and click "Proceed."

Please note the Court does not permit remote appearances for motions for summary judgment that are contested. If you contest a Motion for Summary Judgment, you must appear in person.

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV086445: SCOTT, et al. vs AMERICAN AUTOMOBILE ASSOCIATION OF NORTHERN CALIFORNIA, NEVADA & UTAH ("AAA NCNU"), A CORPORATION, et al. 08/25/2026 Hearing on Motion for Protective Order filed by Marlin Scott (Plaintiff) + CRS# 679391808799 in Department 518