Judge Andrew E. Cooper, Case Number: 23CHCV00139, Date: 2024-03-26 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).

MARCH 25, 2024

(Requests for Production of Documents, Set Two and Three)

Los Angeles Superior Court Case # 23CHCV00139

RESPONDING PARTY: Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”)

RELIEF REQUESTED: Orders compelling Defendant’s further responses to the following discovery requests:

· Plaintiff’s Requests for Production of Documents (“RFPs”), Set Two, Request Nos. 56, 57, and 58.

· Plaintiff’s RFPs, Set Three, Request Nos. 62–65, 68–69, 71–77, 81, and 83.

TENTATIVE RULING: The motions are granted. Defendant to provide further code-compliant responses to Plaintiff’s RFPs, Sets Two and Three, as outlined below. The Court imposes sanctions against Defendant in the amount of $700.00.

This is a personal injury action in which Plaintiff alleges that on 1/26/22, she was boarding a bus owned and operated by Defendant, when the driver, defendant Jessica Cabrera, accelerated and/or braked hard, thereby knocking Plaintiff unconscious. (Compl. ¶¶ 10–11.) On 1/18/23, Plaintiff filed her complaint, alleging the following causes of action: (1) Negligence (against Cabrera); and (4) Negligence (against Defendant). On 2/28/23, Defendant filed its answer.

On 10/30/23, Plaintiff served her second and third set of RFPs on Defendant. (Decl. of Curtis J. Crawford ¶ 1.) On 12/14/23, Defendant served its responses thereto. (Id. at ¶ 2.)

On 1/30/24, Plaintiff filed the instant motions to compel Defendant’s further responses to her second and third set of RFPs. On 3/8/24 and 3/11/24, Defendant filed its oppositions. On 3/19/23, Plaintiff filed her replies.

California law requires a responding party to respond to each request for production of documents with either a statement of compliance, a representation that the party lacks the ability to comply, or an objection to the demand. (Code Civ. Proc. § 2031.210, subd. (a).) If the response includes an objection to the demand in part, it must also include a statement of compliance or noncompliance as set forth above. (Code Civ. Proc. § 2031.240, subd. (a).) Additionally, the response must (1) identify the particular document that falls within the category of the request to which the objection is being made, and (2) expressly set forth the extent of, and specific ground for, the objection. (Id., subd. (b).)

A propounding party may move for an order compelling further response to a request for production if it decides that “an objection in the response is without merit or too general.” (Code Civ. Proc. § 2031.310, subd. (a).)

A motion to compel further discovery responses must be accompanied by a meet and confer declaration stating “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. §§ 2031.310, subd. (b)(2); 2016.040.)

Here, Plaintiff’s counsel declares that on 1/24/24, he sent Defendant’s counsel a meet-and-confer letter raising the issues discussed herein. (Crawford Decl. ¶ 3.) On 1/25/24, Defendant’s counsel responded, but the parties were unable to informally resolve the discovery dipuste. (Id. at ¶ 4.) Therefore, the Court finds that counsel has satisfied the preliminary meet and confer requirement under Code of Civil Procedure sections 2030.300, subdivision (b)(1) and 2031.310, subdivision (b)(2).

RFP Nos. 56 and 75 respectively seek “the incident report identified in Defendant LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY’s responses to Demand for Production, Set One” and “all statements prepared by EMPLOYEE in connection with the INCIDENT.” (Ex. 1 to RFP2 Mot.; Ex. 1 to RFP3 Mot.) Defendant objected to the subject RFPs on the basis of attorney-client privilege.

“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, Defendant proffers the sworn declaration of Juanita Welch, Defendant’s Director of General Liability Claims Administration, stating the following:

“Once the MTA receives notice of an accident or injury, the matter is assigned to either MTA’s Third Party Administrator, Carl Warren & Company (hereinafter ‘Carl Warren’) or MTA Risk Management, depending on severity. Either Carl Warren or MTA Risk Management will handle the claim(s) for the accident or injury before a lawsuit has been filed. … The main purpose of the Reports is to provide the MTA's legal team (including its Carl Warren staff, attorneys on MTA’s PL/PD panel and MTA risk management) with information regarding the alleged accident or injury. To that end, the MTA provides the Reports to County Counsel (which functions as in-house attorneys) and to the attorneys on MTA's PL/PD panel.” (Ex. B to Decl. of Michal D. Margolin, ¶¶ 6–7.)

Defendant argues that “here, similar to Scripps Health, LACMTA is self-insured. Defendant directs employees to complete an incident report. The dominant purpose for these documents is the transmittal to defense counsel for use in the event of litigation. In its response to Plaintiff’s discovery, LACMTA identified the documents which it is claiming privilege on, who drafted them, what their dominant purpose is, and when they were drafted.” (Def.’s RFP2 Opp. 3:7–11.)

Plaintiff argues on reply that statements in the Welch declaration “are directly contradicted by Metro’s own Accident Investigation and Reduction Manual,” which “delineates Metro’s procedures for investigating accidents, with its ‘Purpose’ section clearly stating that investigation reports are used for formulating ‘recommendations [...] for prevention.’” (Pl.’s RFP2 Reply 1:22–24, citing Ex. 6 to Suppl. Crawford Decl., p. 2.) Plaintiff contends that the dominant purpose of the subject incident report is therefore accident prevention, because “as indicated by Metro’s own investigation procedures, incident reports are primarily used in furtherance of Metro’s safety policies and training. Metro fails to establish that these specific incident reports were primarily intended to be transmitted to an attorney.” (Id. at 3:1–3.)

The Court agrees with Plaintiff, and finds that the dominant purpose of the subject incident report appears to be accident reduction. As such, the Court overrules Defendant’s privilege objections to RFP Nos. 56 and 75, and orders Defendant to produce further responsive documents thereto. The Court notes that “once the trial court makes a tentative decision that a communication is not privileged, the party claiming the privilege may disclose the content of the communication in camera to attempt to prevent the disclosure.” (League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 990.)

RFP Nos. 58 and 83 seek Defendant to produce “a privilege log for any documents withheld on the basis of privilege or work product in response to the previous requests.” (Ex. 1 to RFP2 Mot.; Ex. 1 to RFP3 Mot.) “The purpose of a ‘privilege log’ is to provide a specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production. … The purpose of providing a specific factual description of documents is to permit a judicial evaluation of the claim of privilege.” (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 292.)

Here, while Defendant produced a responsive privilege log, Plaintiff asserts that Defendant’s privilege log was defective because “it fails to identify any recipients of the incident reports Defendant is withholding and when those recipients received the reports.” (Pl.’s RFP2 Mot. 6:25–26.) “Without this information, both Plaintiff and the Court cannot properly evaluate Metro’s claims of privilege,” as there is “no evidence that either report at issue was ever even sent to an attorney, or critically, a recipient who would break privilege.” (Id. at 7:3–4; Pl.’s RFP2 Reply 3:12–14.) The Court notes that Defendant does not address this issue in opposition.

Based on the foregoing, the Court agrees with Plaintiff that without identification of the recipients of the subject incident reports, Plaintiff cannot properly determine whether Defendant’s claims of attorney-client privilege have merit. Accordingly, the Court orders Defendant to produce further responsive documents to RFP Nos. 58 and 83.

RFP Nos. 62, 63, 71–74, 76, and 81 seek employee personnel records including “documents pertaining to Cabrera’s fitness to drive on the date of the incident—such as Cabrera’s certifications, drug testing records, disciplinary records, reprimands, training records, and timecards.” (Pl.’s RFP3 Mot. 7:3–5.) In response, Defendant asserted that the requests invade “the right of privacy of LACMTA and its public employees whose privacy is protected by Section 1 of Article I of the Constitution of the State of California and the United States Constitution; the Information Practices Act of 1977; Civil Code §1798.1, et. seq., and related sections. … . The right of privacy of public employees is also protected pursuant to Evidence Code §1040 and related sections; Government Code §6254 and related sections.” (Ex. 2 to Pl.’s RFP3 Mot.)

When information protected by the right to privacy under article I, section 1 of the California Constitution is sought by way of discovery, the burden falls on the party asserting a privacy interest to show that their privacy interests are so serious that they outweigh the interests of the requesting party’s prospective invasion. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

A public entity has a privilege to refuse to disclose and to prevent others from disclosing official information, if an authorized person claims the privilege and disclosure is either (1) prohibited by an act of Congress or a California statute, i.e., absolutely privileged (Evid. Code § 1040, subd. (b)(1)), or (2) against the public interest, i.e., conditionally privileged, subject to the judge’s discretion (Id. at subd. (b)(2)). Official information is information acquired in confidence by a public employee during his or her duty and not open, or officially disclosed, to the public before the claim of privilege is made. (Id. at subd. (a).)

Here, Defendant does not claim any absolute privilege under Evidence Code section 1040, subd. (b)(1). If the requested information is conditionally privileged, and “the public entity satisfies the threshold burden of showing that the information was acquired in confidence, the statute requires the court next to weigh the interests and to sustain the privilege only if there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.” (Marylander v. Superior Court (2000) 81 Cal.App.4th 1119, 1126 [internal quotations omitted].)

Here, the threshold burden of whether Cabrera’s personnel records was acquired in confidence is not at issue. Defendant asserts that it “did not provide responses to requests which sought documents from the bus operator’s employment file which deal with drug and alcohol testing and suspensions, if any, of the bus operator. These go to her right of privacy and, as case law holds, does not have any bearing on negligence as to this specific case.” (Def.’s RFP3 Opp. 5:18–21.) However, as Plaintiff observes, Defendant cites to no case law supporting its contentions. (Pl.’s RFP3 Reply 1:21–22.)

Plaintiff argues that “these document demands are reasonably calculated to lead to the discovery of admissible evidence that goes towards Cabrera’s fitness to drive the bus on the date of the incident.” (Pl.’s RFP3 Mot. 8:25–26.) The requested “disciplinary records and reprimands underscore Cabrera’s awareness of the dangers inherent in operating a bus. These records would show Cabrera had knowledge of the potential risks associated with her actions while operating the bus. Whether Cabrera had drug or alcohol issues also goes directly to negligence, and California law agrees. Vehicle Code section 21352(c) specifically makes it a criminal offense to drive a vehicle while addicted to a drug. Documents showing whether this was the case go to the heart of Cabrera’s fitness to operate a bus.” (Pl.’s RFP3 Reply 1:27–2:4.)

In weighing the parties’ respective interests, the Court agrees with Plaintiff that the requested information is relevant to Plaintiff’s claims that Cabrera acted negligently in operating the bus during the subject incident. Moreover, Plaintiff appears amendable “to a protective order that will keep all of Cabrera’s employee records confidential throughout the litigation thereby limiting the disclosure of the employee records to those involved in the litigation.” (Id. at 3:4–7.) Accordingly, the Court overrules Defendant’s privacy objections to RFP Nos. 62, 63, 71–74, 76, and 81, and orders Defendant to produce further responsive documents thereto.

RFP Nos. 64, 65, 68, 69, and 77 seek “all manuals, guidelines, training materials, safety rules, regulations and other similar documents issued to Cabrera.” (Pl.’s RFP3 Mot. 9:3.) In response, Defendant asserted numerous objections and produced the LAMTA handbook. (Ex. 2 to Pl.’s RFP3 Mot.)

Here, Plaintiff argues that a further response is warranted because “Metro’s response fails to indicate whether it is complying in whole or in part and thus is not a code-compliant response. Metro must provide further responses that provide all the required information or provide the remaining documents Defendant Metro is currently refusing to identify or produce.” (Pl.’s RFP3 Mot. 9:14–17.) “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc. § 2031.220.)

Defendant does not address this issue in its opposition, and only asserts that the requested training materials are not relevant in an action where, as here, there is no claim for negligent hiring/supervision. Defendant therefore asserts that “the only relevant issues in this action are whether the Bus Operator was negligent in the operation of the bus at the time and place of the subject incident and if so, whether such negligent caused injuries to Plaintiff.” (Def.’s RFP3 Opp. 3:25–27.) Discovery is relevant if it is admissible as evidence, or “appears reasonable 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.)¿

Plaintiff argues in reply that she “may properly obtain documents containing Metro’s safety policies and training procedures to assess the issue of Defendant Cabrera’s negligence. At the very least, Plaintiff is entitled to determine if Cabrera was acting in conformity with Metro’s policies and her training at the time of the incident.” (Pl.’s RFP3 Reply 1:9–11.) The Court agrees that the requested materials are relevant to Plaintiff’s claims, and also agrees with Plaintiff that Defendant’s responses fail to indicate whether it is complying with the subject requests in whole or in part.

Based on the foregoing, the Court finds that Defendant’s responses to RFP Nos. 64, 65, 68, 69, and 77 are code-deficient, and orders Defendant to produce further responses thereto.

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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. § 2031.310, subd. (h).)

Here, Plaintiff requests monetary sanctions in the total amount of $5,370.00 to be imposed on Defendant and/or its counsel. This amount includes: (1) 9 hours of counsel’s time spent working on the instant motions; (2) an anticipated 2 hours reviewing each opposition and preparing Plaintiff’s reply; and (4) an anticipated 1 hour appearing at each hearing, at his hourly billing rate of $350.00 per hour. (Crawford Decl., ¶¶ 5–10.) Plaintiff also seeks to recover the filing fee for each motion for a total of $120.00. (Id. at ¶ 7.)

The Court finds it reasonable to impose sanctions against Defendant in the amount of $700.00.

The motions are granted. Defendant to provide further code-compliant responses to Plaintiff’s RFPs, Sets Two and Three, as outlined above. The Court imposes sanctions against Defendant in the amount of $700.00.

The Court notes the parties’ arguments regarding Defendant’s responses to RFP No. 56, but declines to reach them as it appears that Defendant has since provided further responses to this request.