Gonzalez, Attica vs. United Parcel Service, Inc et al

(3) MC-053 - Order Granting Attorney's Motion to Be Relieved as Counsel

Additionally, Defendant's Counsel has filed proof of service of these documents by mail and electronic service.

Authority and Analysis

Code of Civil Procedure section 284 provides that "[t]he attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [or] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other."

California Rule of Court 3.1362(a) requires that the "notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051)."

As noted above, counsel has complied with California Rule of Court 3.1362(a) by submitting the notice and motion on MC-051 and by directing the notice and motion to all parties.

California Rule of Court 3.1362 (c) further mandates that: "The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel--Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). Specifically, the declaration that Rule 3.1362(c) requires must state that the moving attorney attempted to secure a "Substitution of Attorney" from the client as required under Code of Civil Procedure section 284(1) and that the client refused to so stipulate.

Here, the declaration is properly made on form MC-052, as well as a supplemental declaration attached to the Notice, and uses general terms without compromising confidentiality and indicates that Counsel has attempted to obtain a substitution by stipulation, but that Defendant has refused.

Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel's declaration must note the service made. Here, service was by mail and email on July 21, 202 6. The declaration of counsel indicates that Defendant's address was requested to be confirmed via electronic communications.

Finally, Rule 3.1362(e) requires the proposed order be lodged with the Court on MC-053 with the moving papers, specifying all hearing dates scheduled, including date of trial. Defendant's Counsel has complied with this requirement.

Therefore, the Court grants Defendant's Counsel's Motion to Withdraw as to Defendant.

If no one requests oral argument, the Court is prepared to sign the order entitled "Order Granting Attorney's Motion to be Relieved as Counsel - Civil" that the moving party lodged with the Court. This order will be deemed effective upon the filing with the court of a proof of personal service of the "Order Granting Attorney's Motion to be Relieved as Counsel - Civil" as to Defendant.

The Court further directs counsel to attach to the Order an additional notice of the date, time, and Department of this court for any future hearing dates for this case as calendared.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re: Gonzalez, Attica vs. United Parcel Service, Inc et al Case No.: PCU333697 Date: September 1, 2026 Time: 8:30 A.M. Dept. 19-The Honorable Russell P. Burke Motion: Plaintiff's Motion to Compel Surveillance Footage and Protective Order re: Deposition

Tentative Ruling: To deny the motion to compel; to find the motion for protective order moot.

Facts

In this personal injury matter, Plaintiff seeks to compel production of surveillance video taken by Defendant's counsel's investigator and for a protective order staying Plaintiff's deposition until such production.

On June 3, 2026, Plaintiff served written discovery on Defendants, including Requests for Production of Document No. 18, which states: "Please produce ALL surveillance movies or photographs which have been taken of the Plaintiff(s), whether or not those movies/photographs actually depict Plaintiff(s)."

On July 1, 2026, Defense counsel requested a 30-day extension to respond and Plaintiff's counsel responded offering a two-week extension. Plaintiff's deposition was thereafter set for July 28, 2026.

On July 3, 2026, Plaintiff sent correspondence indicating an expectation that the surveillance footage responsive to No. 18 would be provided prior to the deposition of Plaintiff.

On July 19, 2026, Defendant served unverified responses to Plaintiff's discovery including unverified responses to Request for Production. As to the response to No. 18, Defendant stated: "Objection: This Request For Production item violates the Attorney Work Product Doctrine."

On July 21, 2026, Plaintiff sent a meet and confer letter addressing, amongst other issues, the production of the footage responsive to No.

18.

On July 22, 2026, Plaintiff filed this motion to compel further production as to No. 18 and for a protective order staying Plaintiff's deposition pending the production of the surveillance footage.

Plaintiff argues the footage is discoverable and is not privileged under Suezaki v. Superior Court (1962) 58 Cal.2d 166. Further, that the Court has broad authority to regulate the timing of discovery, including Plaintiff's deposition. Plaintiff further requests sanctions.

In opposition, Defendant argues the footage is protected work product, is impeachment evidence and that Plaintiff has not demonstrated good cause as to the motion to compel.

Authority and Analysis

Code of Civil Procedure section 2031.310(a) permits a party to demand a further response where: " (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general."

Under subsection (b), the motion must "set forth specific facts showing good cause justifying the discovery sought by the demand."

In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the court defined "good cause" as a showing that there "a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact."

If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.)

Both parties discuss Suezaki, supra, 58 Cal.2d 166, wherein the California Supreme Court held that while surveillance or sub rosa footage is not within the attorney-client privilege, "...the films were the result of the work product of the attorney, which is correct." (Id. at 177-178.)

However, the determination that such footage is work product "is one factor to be used by the trial court in the exercise of its discretion in determining whether or not discovery should be granted. It does not mean that, simply because the material involved is the "work product" of the attorney, it can or should deny discovery. Something more must exist. The trial court must consider all the relevant factors involved and then determine whether, under all the circumstances, discovery would or would not be fair and equitable." (Id. at 178.)

Finally, the Suezaki "While it would appear that inspection of the films should be permitted, the discretion granted by the statute is the discretion of the trial court, not of this court. Therefore, the matter should be referred back to the trial court to permit it to exercise its discretion as conferred by statute, and to permit it to decide whether on the showing that has or may be made it should deny, grant, or conditionally grant the order." (Id. at 179.)

The Court notes, as Defendants point out, that the work product protection has since been codified under Code of Civil Procedure section 2018.020, et seq.

Section 2018.020 states: "It is the policy of the state to do both of the following: (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases. (b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts."

There are two categories of work product set out by the Code; "(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. (b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice." (Code Civ. Proc Sec.2018.030.)

Further, section 2018.040 states "This chapter is intended to be a restatement of existing law relating to protection of work product. It is not intended to expand or reduce the extent to which work product is discoverable under existing law in any action."

Finally, the Court notes Rutter's guidance on this issue: [8:243] Photos, videos, surveillance films: Surprisingly, there is no recent authority dealing with claims of work product protection for photos, videos, etc. prepared under an attorney's direction. (Again, the Discovery Act is not helpful because it leaves the definition of "work product" to case law.) [8:243.1] Photographs of physical evidence taken by the attorney or attorney's agents (e.g., the damaged vehicle, the accident scene, the injuries, etc.) may be treated as "nonderivative" material; and thus discoverable as "mere evidence." [8:243.2] But photos or films reflecting counsel's strategies and tactics in preparation for trial should be treated as "qualified work product" (e.g., a video or surveillance film impeaching plaintiff's claim of disabling injury).

It would be basically unfair to allow the other side free access to such material. That party should have to show a special need for discovery and inability to obtain similar information, etc. [See Suezaki v. Sup.Ct. (Crawford) (1962) 58 C2d 166, 177-178, 23 CR 368, 374 (decided before attorney "work product" received statutory protection)] [8:243.3] Indeed, certain photos or films "reflecting" counsel's "impressions, conclusions (or) theories" may be "writings" entitled to absolute protection (e.g., photos taken from a particular angle or viewpoint, photographic enlargements, that show counsel's theory of liability)." (Weil & Brown, California Practice Guide: Civil Procedure Before Trial [The Rutter Group 2023], 8:234.)

Therefore, the Court must adjudicate whether Plaintiff has provided sufficient good cause to compel the production of this surveillance footage, whether discovery would be fair and equitable and whether denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.

Plaintiff's position is that disclosure of the footage prior to deposition and trial will prevent a surprise. However, as noted by Defendant, a person can hardly be surprised by their own acts.

The Court does not find sufficient good cause to compel the footage has been provided, nor a sufficient showing to overcome the qualified work production protection concerning the footage. Therefore, the Court denies the motion to compel.

Having denied the motion to compel, the Court finds the motion for a protective order as to the sequencing of discovery moot.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Visalia Division Honorable Bret D. Hillman Presiding- Department 2 Examiner notes for probate matters calendared August 26, 2026, that allow for posting: Status: Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc.

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