Judge: Anne Hwang, Case: 22STCV01046, Date: 2024-03-08 Tentative Ruling

Case Number: 22STCV01046    Hearing Date: March 8, 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 January 10, 2022, Plaintiff Martha Y. Cash (“Plaintiff”) filed a complaint against Smart & Final LLC, Smart & Final Stores, LLC, and Does 1 to 50 for negligence related to a fall.

On October 13, 2023, Plaintiff served Defendant Smart & Final Stores, LLC (“Defendant”) with Demand for Production of Documents, Set Two. (Guillen Decl. ¶ 3, Exh. A.) The responses were due on November 14, 2023. (Id. ¶ 3.) Plaintiff asserts she did not grant any extensions to respond. On November 28, 2023, Plaintiff informed Defendant that responses were late and demanded responses, without objections, by December 1, 2023. On November 29, 2023, Defendant served responses with objections based on the work product doctrine and attorney client privilege. Defendant asserted it would seek relief from the Court for the calendaring mistake that caused the late responses.

No motion for relief from the waiver of objections has been filed. Plaintiff now moves to compel responses to Demand for Production of Documents, Set Two, arguing the objections are without merit. Defendant opposes and Plaintiff replies.

MEET AND CONFER

On January 25, 2024, the parties participated in an informal discovery conference (“IDC”) pursuant to the Court’s Eighth Amended Standing Order. The issues were not resolved. Therefore, the meet and confer requirement has been met.

LEGAL STANDARD

Code of Civil Procedure section 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:¿¿¿ 

¿¿¿ 

(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.¿¿¿¿ 

“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”¿ (Code Civ. Proc., § 2031.310(c).)¿¿¿¿¿ 

¿ 

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 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 (h).)¿¿ 

“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:

(a)   The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver . . . .” (Code Civ. Proc. § 2031.300(a).)

DISCUSSION

Demand for Production of Documents, Set Two consists of two requests: number 21, and 22.

Number 21 requests: “A copy of the statement provided by PLAINTIFF to YOU RELATING TO the SUBJECT INCIDENT.”

Number 22 requests: “A copy of the statement provided by Caren Mayes to YOU RELATING TO the SUBJECT INCIDENT.”

Defendant responded as follows: “Objection. Any incident report is protected by the attorney-client privilege and attorney work product doctrine. See, Payless Drug Stores, Inc. v. Superior Court 54 Cal.App.3d 988 (1976). Moreover, any witness statements would be incorporated with the confidential incident report. Furthermore, witness statements are protected by the attorney-client privilege and attorney work product doctrine. See, Nacht & Lewis Architects, Inc. v. Superior Court 47 Cal.App.4th 214 (1996). In addition, this has been asked and answered. The information was previously provided in response to plaintiff’s demand for production numbers 1-4. Without waiving the aforementioned objections, defendant responds as follows: Defendant will identify, but not produce, plaintiff's statement that was incorporated with the confidential incident report.”

Plaintiff argues further responses should be compelled because Defendant waived all objections by serving late responses. Defendant acknowledges that the responses were untimely, but asks for relief from waiver of objections within the opposition brief. However, as the Court indicated at the IDC, such relief would need to be sought by a noticed motion. (See Code Civ. Proc. § 2031.300 [“The court, on motion, may relieve that party from this waiver…”] [emphasis added].) To date, no such motion has been filed.[1]

Moreover, even if such a motion were to be filed, the objections are without merit as discussed below.

Work Product Doctrine

Code of Civil Procedure section 2018.030 states the following:

“(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.”

“[W]itness statements procured by an attorney are not automatically entitled as a matter of law to absolute work product protection. Instead, the applicability of absolute protection must be determined case by case. An attorney resisting discovery of a witness statement based on absolute privilege must make a preliminary or foundational showing that disclosure would reveal his or her ‘impressions, conclusions, opinions, or legal research or theories.’ (§ 2018.030, subd. (a).) Upon an adequate showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute work product protection applies to some or all of the material.” (Coito v. Superior Court (2012) 54 Cal.4th 480, 495–96, 499 [rejecting dicta in Nacht & Lewis (1996) 47 Cal.App.4th 214, 217 that says: “recorded statements taken by defendants' counsel would be protected by the absolute work product privilege because they would reveal counsel's ‘impressions, conclusions, opinions, or legal research or theories'....”].)

However, “witness statements procured by an attorney are entitled as a matter of law to at least qualified work product protection under section 2018.030, subdivision (b).” (Id. at 496.) “A party seeking disclosure [of material protected by qualified work product] has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice.” (Id. at 499.)

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.)

“The landmark case of D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 36 Cal.Rptr. 468, 388 P.2d 700 (Chadbourne) details eleven basic principles to be applied in determining whether the attorney-client privilege exists in a corporate setting. [Citation.] Where . . . a corporate employer requires that its employees make a report, the privilege of that report is determined by the employer's purpose in requiring the report. [Citation.] When the corporate employer has more than one purpose in requiring the report, the dominant purpose will control. [Citation.]” (Id.)

Analysis

As an initial matter, Defendant broadly argues that incident reports are protected from discovery due to the attorney-client privilege. (Opposition at p. 7.) However, Plaintiff’s discovery requests do not seek the incident report. Rather, Plaintiff’s discovery requests seek statements by two individuals, which may or may not be contained within the incident report. The mere placement of witness statements in an incident report does not automatically make the statements themselves subject to the attorney-client privilege. (See generally D.I. Chadbourne, Inc. v. Superior Court of City and County of San Francisco (1964) 60 Cal.2d 723 [setting forth principles to be applied in determining whether a witness’s statement is protected by the attorney-client privilege]; Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 119 [“documents prepared independently by a party, including witness statements, do not become privileged communications or work product merely because they are turned over to counsel”].) Here, it is undisputed that neither Plaintiff nor Caren Mayes are employees of Defendant. The Court finds that the statements are not protected by the attorney-client privilege.

First, as to Plaintiff’s statement, Defendant provides the declaration of David Godinez, its General Liability Manager: “Following the incident that is subject of this lawsuit, which occurred on February 1, 2020, a confidential incident was prepared by employee Joy Reynolds. Plaintiff’s statement at the time of the incident was incorporated with the confidential incident report.” (Godinez Decl. ¶ 5.)

Defendant provides no facts that the interview would reveal the impressions, conclusions, opinions, or theories of an attorney. Instead, Defendant asserts that Plaintiff gave a statement to an employee. Defendant does not assert that Joy Reynolds was an attorney or was acting on behalf of an attorney to ask questions that would reveal the attorney’s impressions. Indeed, there is no indication that any specific questions were asked of Plaintiff. Defendant bears the burden of making a foundational showing that disclosure would reveal an attorney’s impressions, conclusions, opinions, or legal research or theories. Defendant has not met its burden.

Second, as to witness Caren Mayes’ statement, Mr. Godinez declares: “On February 20, 2020, after the Claims Examiner acknowledged representation, the Claims Examiner sent out a questionnaire prepared to gather facts in preparation for litigation to witness Caren Mayes. The witness filled out the questionnaire, and sent it back on March 4, 2020.” (Godinez Decl. ¶ 8.)

Again, Defendant provides no facts that the questions on the questionnaire would reveal the impressions, conclusions, opinions, or theories of an attorney as to this case. Defendant does not even clarify whether the questionnaire is a form, or a case-specific questionnaire. Even if it were case-specific, there are no facts from which the Court can determine that disclosure would reveal an attorney’s impressions, conclusions, opinions, or theories.

Plaintiff seeks $1,760 against Defendant and its counsel, jointly and severally, representing an hourly rate of $200 and the $60 filing fee. The Court finds sanctions are warranted but finds the amount requested to be excessive, and reduces the amount to $860 (four hours of attorney time plus the filing fee).  

CONCLUSION AND ORDER

Therefore, Plaintiff’s motion to compel further responses to Demand for Production of Documents, Set Two is GRANTED. Defendant shall provide verified responses, without objection, and responsive documents within 10 days.

The Court further GRANTS Plaintiff’s request for monetary sanctions against Defendant and its counsel of record, jointly and severally, in the reduced amount of $860. Said monetary sanctions are to be paid to counsel for Plaintiff within 30 days of the date of this order. 

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