Judge: Andrew E. Cooper, Case: 22CHCV01440, Date: 2024-04-10 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 22CHCV01440    Hearing Date: April 10, 2024    Dept: F51

Dept. F-51

Date: 4/10/24

Case #22CHCV01440

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION TO COMPEL FURTHER DEPOSITION TESTIMONY

Motions filed: 11/14/23, 12/1/23, 2/7/24

MOVING PARTY: Plaintiff Kirk Dietrich Mullins (“Plaintiff”) 

RESPONDING PARTY: Defendants Jose Armando Priego; and West Coast Arborists, Inc. (collectively, “Defendants”) 

NOTICE: ok¿¿ 

RELIEF REQUESTED: Orders compelling further deposition testimony from deponents Jose Armando Priego, Alejandro Priego, and Clemente Priego regarding the contents of certain incident reports concerning the subject incident. Plaintiff also seeks monetary sanctions in the total amount of $6,270.00.

TENTATIVE RULING: The Court rules as follows:

·         Plaintiff’s Motion to Compel Deposition Testimony of Jose Armando Priego is denied.

·         Plaintiff’s Motion to Compel Deposition Testimony of Alejandro Priego is denied.

·         Plaintiff’s Motion to Compel Deposition Testimony of Clemente Priego is granted as to Questions 4 and 5 and denied as to the remaining questions.

BACKGROUND

This is a personal injury action in which Plaintiff alleges that on 6/1/22, he was injured when a commercial truck operated by defendant Jose Armando Priego (“Jose”) collided with Plaintiff’s motorcycle at the intersection of Del Monte Drive and Park View Road in the City of Santa Clarita. (Compl. ¶ 1.) Plaintiff alleges that at the time of the subject incident, Jose was acting in the course and scope of his employment with defendant West Coast Arborists, Inc. (“WCA”). (Id. at ¶ 6.) Non-party deponent Alejandro Priego (“Alejandro”) was a co-employee and passenger in the truck during the subject incident. Non-party deponent Clemente Priego (“Clemente”) was a WCA foreman who was driving in a separate vehicle ahead of Jose during the subject incident.

On 12/19/22, Plaintiff filed his complaint, alleging the following causes of action: (1) Negligence/Negligence Per Se; and (2) Statutory Liability. On 2/15/23, Defendants filed their answers.

On 8/24/23, defendant Jose’s deposition was taken. On 9/20/23, non-party deponent Alejandro’s deposition was taken. On 11/8/23, non-party deponent Clemente’s deposition was taken. At each deposition, Defendants’ counsel objected to Plaintiff’s counsel’s questions concerning the contents of written incident reports each witness created following the subject incident, on the bases of attorney-client and attorney work product privileges.

On 11/14/23, Plaintiff filed the instant motion to compel Jose’s further deposition testimony. On 12/1/23, Plaintiff filed the instant motion to compel Alejandro’s further deposition testimony. On 2/7/24, Plaintiff filed the instant motion to compel Clemente’s further deposition testimony. On 3/6/24 and 3/27/24, Defendants filed their oppositions. On 3/13/24 and 4/3/24, Plaintiff filed his replies.

ANALYSIS

A.    Motion to Compel Deposition Testimony

Discovery is relevant if it is admissible as evidence, or “appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.) “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc. § 2025.480, subd. (a).)

1.      Meet and Confer

A motion to compel a deponent’s answer must “be accompanied by a meet and confer declaration under Section 2016.040.” (Id. at subd. (b).) Here, Plaintiff’s counsel declares that on 10/20/23, she sent Defendants’ counsel a meet and confer letter in an attempt to resolve the instant dispute. (Decl. of Gizem Gures ¶ 5.) On 10/25/23, Defendants’ counsel responded to Plaintiffs’ counsel; however, the parties were unable to informally resolve the dispute. (Id. at ¶ 6.) Accordingly, the Court finds that counsel has satisfied the meet and confer requirements under Code of Civil Procedure section 2025.480, subdivision (b).

2.      Defendants’ Objections

“Deponents [should] not be prevented by counsel from answering a question unless it pertains to privileged matters or deposing counsel’s conduct has reached a stage where suspension is warranted.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015 [emphasis added].) “Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in the course of the lawyer-client … relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.” (Behunin v. Superior Court (2017) 9 Cal.App.5th 833, 844.)

a.       Incident Report

Here, Plaintiff argues that during each deposition, Defendants’ counsel improperly advised each witness not to answer Plaintiff’s attorney’s questions regarding incident reports created in connection with the subject incident. Plaintiff argues that under Stewart, it was improper for Defendants’ counsel to instruct each deponent not to answer Plaintiff’s counsel’s questions regarding incident reports they created. Plaintiff contends that each deponent’s “willful failure to provide responsive answers during his deposition and sweeping proclamations of privilege with zero preliminary facts to support their position is in direct contravention of applicable rules of law.” (Pl.’s Mot. re Alejandro 3:8–11.)

Defendants argue in opposition that “the sought-after testimony is privileged as it involves a statement that a company employee was required to provide to his company, which was given to Risk Management for forwarding to WCA’s attorneys.” (Def.’s Opp. re Alejandro 4:24–27.) Additionally, as Defendants note, here, the objections were in fact based on the attorney-client and attorney work product privileges and are therefore proper under Stewart.

Defendants argue that the subject incident reports are privileged because they were created at WCA’s direction in accordance with its policies and procedures to direct such reports to WCA’s attorneys. “Communications made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.” (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 535 [internal quotations omitted].) “When the corporate employer has more than one purpose in requiring the report, the dominant purpose will control.” (Id. at 533; see also Sierra Vista Hospital v. Superior Court for San Luis Obispo County (1967) 248 Cal.App.2d 359, 367.)

In Scripps, the Court of Appeal found that hospital occurrence reports were protected by the attorney-client privilege where the hospital “was self-insured, maintained in-house counsel, required completion of the confidential occurrence reports for the purpose of attorney review and intended the reports to be confidential.” (109 Cal.App.4th at 534.) In Sierra Vista, the Court of Appeal similarly held that an incident report made by the defendant hospital’s director of nursing services and its administrator, which was sent to the hospital’s insurer for the purpose of preparing to defend the hospital in event a lawsuit should be filed by the plaintiff patient, was protected from discovery by the attorney-client privilege. (248 Cal.App.2d at 369.)

In Sierra Vista, the Court of Appeal elaborated that “where the employee’s connection with the matter grows out of his employment to the extent that his report or statement is required in the ordinary course of the corporation’s business, the employee is no longer an independent witness, and his statement or report is that of the employer … If, in the case of the employee last mentioned, the employer requires (by standing rule or otherwise) that the employee make a report, the privilege of that report is to be determined by the employer’s purpose in requiring the same; that is to say, if the employer directs the making of the report for confidential transmittal to its attorney, the communication may be privileged.” (Id. at 367, quoting D. I. Chadbourne, Inc. v. Superior Court of City and County of San Francisco (1964) 60 Cal.2d 723.)

However, “it is the intent of the person from whom the information emanates that originally governs its confidentiality (and hence its privilege); thus where the employee who has not been expressly directed by his employer to make a statement, does not know that his statement is sought on a confidential basis (or knowing that fact does not intend it to be confidential), the intent of the party receiving and transmitting that statement cannot control the question of privilege.” (Ibid.) “Unless the insurance carrier (or its agent) has advised the employer that the employee’s statement is to be obtained and used in such manner, it cannot be said that the corporation intended the statement to be made as a confidential communication from client to attorney.” (Id. at 368.)

Here, in relying on Scripps and Sierra Vista, Defendants proffer the sworn declaration of Ernesto Macias, WCA’s Vice President of Risk Management and Labor Relations, stating the following:

“WCA requires its employees to provide written statements and prepare an incident report when an incident occurs that may lead to a claim against WCA. The written statements and incident reports are used by Risk Management, WCA’s counsel, WCA’s insurance carrier(s), and the carrier’s agent, third-party litigation claim administrators to evaluate, assess, discuss, make further inquiries, if necessary, including through email and telephonic communications, and take other actions in the event the incident is made the basis of a claim against WCA. All post-incident communications related to an incident, including the written statements and incident reports obtained and prepared in the Mullins Case, are intended to be confidential. The Risk Management Department maintains the written statements and incident reports in the event a claim made against WCA, which are provided to WCA’s counsel, WCA’s insurance carrier(s), and the carrier’s agent, third-party litigation claim administrators, when a claim is made against WCA. Only Risk Management, WCA’s counsel, WCA’s insurance carrier(s), and the carrier’s agent, third-party litigation claim administrators, are given access to the written statements and incident reports.” (Decl. of Ernesto Macias ¶ 3.)

Plaintiff argues on reply that the instant case is distinguishable from Scripps and Sierra Vista because here, “the witnesses were instructed post-incident to write on blank paper with no explicit purpose outlined.” (Pl.’s Reply 4:4–5.) Plaintiff further argues that while the incident reports may now be used by WCA’s Risk Management, counsel, and their insurance carrier for litigation purposes, their dominant purpose at the time they were created was to prevent future accidents and promote safety. (Id. at 4:10–5:7, citing Ex 2. To Pl.’s Mot re Alejandro, 55:16–20.)

Plaintiff asserts that none of the subject incident reports are subject to protection under the attorney-client privilege or attorney work product doctrine because: “(1) there was no attorney present when [the witness] filled out either report, (2) [the witness] was specifically asked to prepare both reports for the purpose of documenting his own observations of the subject collision, (3) [the witness] was not told by either his supervisor/uncle that the information was being gathered in preparation for litigation or for the purpose of providing it to an attorney, (4) [the witness] had no information regarding any lawsuits pertaining to the subject collision when he filled out both reports, (4) nothing on the form [the witness] filled out on his uncle’s cell phone or the paper [he] was given to fill out the second report indicated that the reports were confidential or that they were prepared to be transmitted to an attorney, insurance company or for any other legal purpose.” (Pl.’s Mot. re Jose 11:18–12:2; Pl.’s Mot re Alejandro, 12:3–13.)

Based on the foregoing, the Court agrees with Defendants that the facts of the instant case are analogous to those in Scripps and Sierra Vista. Here, while Defendants do not claim to be self-insured, WCA’s Vice President of Risk Management and Labor Relations states in his sworn declaration that the subject incident reports were created in the ordinary course of business for the sole purpose of risk management in the event that a claim for liability is brought against WCA. (Macias Decl. ¶¶ 3–4.) The Court finds the proffered evidence sufficient to show that the dominant purpose of the subject incident reports was for litigation, and therefore the attorney-client privilege applies to protect the contents of the reports from discovery. “When the facts, or reasonable inferences from the facts, shown in support of or in opposition to the claim of privilege are in conflict, the determination of whether the evidence supports one conclusion or the other is for the trial court, and a reviewing court may not disturb such finding if there is any substantial evidence to support it.” (Sierra Vista, 248 Cal.App.2d at 364.)

Accordingly, the motions to compel further testimony about the contents of the subject incident reports are denied.

b.      Legal Contentions

As to deponent Clemente, Defendants’ counsel further instructed the witness not to answer Plaintiff’s counsel’s questions regarding whether anyone at WCA told Clemente that Jose was at fault for the subject collision. Defendants’ counsel objected and instructed Clemente not to answer under Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255. In Rifkind, the Court of Appeal held that deposition questions may ask a deponent about the basis for, or information about, factual conclusions or assertions, but not the basis for a legal conclusion.

“If a deponent says that a certain event happened at a particular time or place, it is quite proper to ask the person, at deposition, how he or she became aware of it, his or her knowledge about it, and for similar information of a factual nature.” (Rifkind, 22 Cal.App.4th at 1259.) However, in contrast, deposition questions that call for a witness’ legal contentions are improper because “legal contention questions require the party interrogated to make a ‘law-to-fact application that is beyond the competence of most lay persons.’ … Even if such questions may be characterized as not calling for a legal opinion … or as presenting a mixed question of law and fact … their basic vice when used at a deposition is that they are unfair. They call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot. There is no legitimate reason to put the deponent to that exercise. If the deposing party wants to know facts, it can ask for facts; if it wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory.” (Id. at 1262.)

Here, Plaintiff’s counsel asked, “Did the company find Jose at fault, only if you know?” and “Did anyone at the company tell you that Jose was at fault for the collision?” (Ex. 6 to Pl.’s Sep. Stmt. re Clemente.) Plaintiff argues that Rifkind does not apply here because each “question did not call upon the witness to sort out the factual material in the case according to specific legal contentions.” (Pl.’s Sep. Stmt. re Clemente 5:12–14.)

In opposition, Defendants argue that each disputed question “does require Mr. Priego apply a disputed factual contention (i.e.: the company’s particular findings) to a disputed legal contention (i.e.: the question of fault). The subject question clearly probes at a disputed legal conclusion (i.e.: that Jose was at fault for the collision) by asking about facts that could form the basis of such a contention (i.e.: whether anyone spoke to Mr. Priego.)” (Defs.’ Resp. to Pl.’s Sep. Stmt. re Clemente 20:5–9.)

The Court agrees with Plaintiff that “questions about what the witness was told, the substance of communications, the deponent’s personal understanding or recollection of communications and/or events, are all proper lines of inquiry.” (Pl.’s Reply re Clemente 8:13–15.) Here, the disputed deposition questions do not ask Clemente to draw his own legal conclusions about whether Jose was at fault for the subject collision, but whether he was told as such by anyone from WCA. Accordingly, the Court grants Plaintiff’s motion to compel Clemente’s further deposition testimony to Questions 4 and 5.

c.       Communications with Interpreter

As to deponent Clemente, Defendants’ counsel further instructed the witness not to answer Plaintiff’s counsel’s questions regarding the contents of Clemente’s conversations with Defendants’ counsel, WCA’s risk manager, and an independent interpreter during a break at the deposition. (Ex. 7 to Pl.’s Sep. Stmt. re Clemente.) Defendants’ counsel instructed the witness not to answer based on the attorney-client privilege.

Plaintiff asserts that the attorney-client “privilege was lost when the interpreter, an independent third party hired by the Plaintiff, who was not an agent or representative of Defendant or his counsel, was present. Including an independent third party in the conversation made it so there was no expectation of privacy. There is no attorney-client privilege when an independent third party is included in a conversation and there is no expectation of privacy.” (Pl.’s Sep. Stmt. re Clemente 6:7–11.)

In opposition, Defendants argue that Plaintiff fails to cite to any legal authority in support of the above contentions. (Defs.’ Opp. re Clemente 16:20.) Defendants assert that “§ 952 of the California Evidence Code includes a carveout for disclosure to third persons to whom disclosure is reasonably necessary for the transmission of the information.” (Id. at 16:22–24, citing Evid. Code § 952.) Defendant argues that therefore, “section 952 protects the hallway conversation because the interpreter’s services were reasonably necessary to facilitate communication between Defendants’ counsel and the representative of his client.” (Id. at 17:5–7.) The Court agrees, and notes that Plaintiff does not address this issue on reply.

Based on the foregoing, the Court finds that Clemente’s communications with Defendants’ attorney, in the presence of an independent interpreter, are protected by the attorney-client privilege. Accordingly, the Court denies Plaintiff’s motion to compel Clemente’s further deposition testimony to Questions 6 through 8.

B.     Sanctions

If the Court grants a motion to compel deposition testimony, it “shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, 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.” (Code Civ. Proc. § 2025.480, subd. (j).) Additionally, “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.” (Code Civ. Proc. § 2023.030, subd. (a).)

Here, Plaintiff requests monetary sanctions in the total amount of $6,270.00 to be imposed against the deponents and Defendants’ counsel. While the Court denies the instant motions in part, it finds the imposition of sanctions to be unjust because each party appears to have substantial justification for making and opposing the motion. Accordingly, the Court declines to issue monetary sanctions against either party.

CONCLUSION

The Court rules as follows:

·         Plaintiff’s Motion to Compel Deposition Testimony of Jose Armando Priego is denied.

·         Plaintiff’s Motion to Compel Deposition Testimony of Alejandro Priego is denied.

·         Plaintiff’s Motion to Compel Deposition Testimony of Clemente Priego is granted as to Questions 4 and 5 and denied as to the remaining questions.