Judge: Anne Hwang, Case: 21STCV12617, Date: 2023-12-15 Tentative Ruling

Case Number: 21STCV12617    Hearing Date: March 11, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On April 2, 2021, Plaintiff Susie Leivas (Plaintiff) filed a complaint for premises liability after allegedly slipping on a liquid substance and falling. Defendant New Vision Contractors (Defendant) was added to the complaint as Doe 1. Plaintiff alleges that the liquid substance that she slipped on was placed by Defendant’s employees.

On August 22, 2023, Plaintiff served three deposition notices on Defendant with document requests. On September 6, 2023, Defendant served objections. The depositions took place September 13–14, 2023.

Plaintiff now moves to compel the production of demand number 6, which requests any incident reports or writings made of Plaintiff’s fall. Plaintiff specifically seeks an incident report prepared by Alex Torres, Defendants former superintendent, based on information provided to him by Defendant’s employee Chris Martinez, who was cleaning the floors at the time of the incident. (Slatkin Decl. ¶ 24.) Defendant opposes and Plaintiff replies.

MEET AND CONFER

On January 8, 2024, the parties participated in an informal discovery conference pursuant to the Court’s Eighth Amended Standing Order. The issues were not resolved, and the parties were instructed to further meet and confer to resolve the issues. (Min. Order, 1/8/24.) Afterward, the parties exchanged meet and confer letters but could not resolve the issue. (Slatkin Decl. ¶ 16–17.) Therefore, the meet and confer requirement has been met.

LEGAL STANDARD

Under Code of Civil Procedure section 2025.480,

“(a) 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.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.”

“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc. § 2025.480(i).)

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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(j).)

JUDICIAL NOTICE

The Court declines to take judicial notice of Defendant’s Exhibit D, as it has no effect on the ruling herein.

DISCUSSION

Plaintiff moves to compel further responses to its demand for production, number 6 in the deposition notices served on Defendant.

Demand number 6 requests: “All WRITINGS concerning any report made of Plaintiff, Susie Leivas’s fall following the INCIDENT, which includes any INCIDENT REPORTS. (This shall mean and refer to the INCIDENT report prepared by Alex Torres based on information provided to him by Chris Martinez based on the INCIDENT).”

Defendant responded with various objections including based on the attorney client privilege and the work product doctrine.

Attorney-Client Privilege

“The attorney-client privilege is codified in [Evidence Code] sections 950 through 962. The term ‘confidential communication between client and lawyer’ includes ‘information transmitted between a client and his ... lawyer in the course of that relationship and in confidence....’ (§ 952.) If a ‘confidential communication between client and lawyer’ exists, the client has a privilege protecting disclosure (§ 954), and the attorney has an obligation to refuse disclosure unless otherwise instructed by the client. (§ 955.) While attorney-client communications are presumed to be confidential (§ 917), the party claiming the attorney-client privilege as a bar to disclosure has the burden of showing that the communication sought to be suppressed falls within the parameters of the privilege.” (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533.)

“When a party asserts the attorney-client privilege it is incumbent upon that party to prove the preliminary fact that a privilege exists. [Citation.]” (State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 639.)

In determining whether an employee statement or report is protected under the attorney client privilege, the case of D.I. Chadbourne, Inc. v. Superior Court, details eleven basic principles to be applied.  (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 736-38.)  As relevant here, the D.I. Chadbourne court stated: 

4. 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;

5. 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;

6. When the corporate employer has more than one purpose in directing such an employee to make such report or statement, the dominant purpose will control, unless the secondary use is such that confidentiality has been waived; 

7. If otherwise privileged under the rules stated above, a communication does not lose its privilege merely because it was obtained, with the knowledge and consent of the employer, by an agent of the employer acting under such agency; 

9. And in all corporate employer-employee situations it must be borne in mind that 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;

10. Similarly, where the corporate employer directs the employee, at the request of its insurance carrier, to make such a statement, the intent of the employer controls; and 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 737.) 

“A report or other communication 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.” (Travelers Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436, 452 [internal quotations omitted].)

Here, the depositions took place on September 13 and 14, 2023, and were certified on September 28, 2023. Accordingly, it appears the motion is untimely. Nonetheless, because the parties do not address whether the Court has the authority to hear the motion, the Court addresses the merits of the motion.

Defendant has the burden to show the incident report falls within the privilege. Defendant offers the declaration of its principal owner and CEO, Bret Howey. Mr. Howey declares that Defendant has a general liability insurer, Argo Group US (“Argo”), who had a policy with Defendant at the time of the incident. (Howey Decl. ¶ 5.) The policy required Argo to hire an attorney to defend Defendant for any claims or lawsuits. The policy required Defendant to comply with investigations, and to provide all necessary information like incident reports to Argo to transmit to an attorney. (Id. ¶ 7.) When there is a non-serious injury involving a non-employee, it is Defendant’s policy to require the superintendent to gather information from knowledgeable employees and then submit an incident report, in confidence to only Mr. Howey. (Id. ¶ 13.) The incident report is then filed in Defendant’s confidential records and provided to Argo, which then provides it to attorneys for the defense of a lawsuit. (Id. ¶ 14.) “The main reason for New Vision preparing an incident report involving a non-employee non-serious/ fatal injury is to have a record with information regarding the incident for New Vision to transmit to its attorneys and/or general liability insurance in anticipation of a potential litigation against New Vision.” (Id. ¶ 15.) “On August 29, 2019, I instructed Mr. Torres to prepare a confidential incident report that he was to only provide to me in order for New Vision to have a record on file in anticipation of potential litigation.” (Id. ¶ 22.) The subject incident report was created by direction of Mr. Howey to employee Alex Torres. It was then printed on a single copy and handed to Mr. Howey who then filed the report in Defendant’s confidential records. (Id. ¶ 24.) Once Plaintiff’s action was filed, Mr. Howey notified Argo and sent the report for the purpose of it being transmitted to attorneys to defend the action. (Id. ¶ 28.)

Based on the above, Defendant has shown that the dominant purpose for creating the report at issue was to provide to attorneys for defense of a potential lawsuit. Plaintiff argues the dominant purpose of this report was for training and safety and points to Mr. Howey’s deposition transcript. (Motion, 6; Slatkin Decl., Exh. 13, Howey Depo. 28:22–29:17.) However, Howey’s Declaration distinguishes reports for employee injuries, which are used to prevent future injuries and sent to Cal-OSHA. (Howey Decl. ¶ 8–10.) Howey was not specifically asked about nonemployees during his deposition.

Additionally, Plaintiff’s argument that Defendant waived the privilege by placing the subject matter at issue is unpersuasive. Although Defendant’s witness indicated that information may be contained in the incident report, Defendant has not partially disclosed or otherwise relied on the report.

Because the Court finds the privilege applies, the Court declines to address the arguments surrounding the work product doctrine or Defendant’s argument that Plaintiff waived her right to make this motion by failing to meet and confer on the December 16, 2022 privilege log.

CONCLUSION AND ORDER

Therefore, Plaintiff’s motion to compel compliance with the request for documents in her deposition notices, is DENIED.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.