Judge: Anne Hwang, Case: 22STCV20486, Date: 2023-09-18 Tentative Ruling

Case Number: 22STCV20486    Hearing Date: October 31, 2023    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 August 2, 2022 Plaintiffs Jorge LaVerde and Miriam La Verde (Plaintiffs) filed a first amended complaint against Defendant Target Corporation (Defendant) for injuries related to an alleged slip and fall.

Plaintiffs now move to compel further responses to Plaintiffs’ Request for Production of Documents, Set One, Numbers 1–2, 6–7, and 66–71 under Code of Civil Procedure section 2031.310.

LEGAL STANDARD

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: . . . (2) A representation of inability to comply is inadequate, incomplete, or evasive; (3) An objection in the response is without merit or too general.” (Code Civ. Proc. § 2031.310 (a).)  The motion must set forth facts showing good cause exists to justify the demand and contain a meet and confer declaration. (Code Civ. Proc. § 2031.310(b).)

When seeking production of documents or a demand for inspection, the moving party has the initial burden to show good cause for the production.  If good cause is shown, the burden to justify an objection to the discovery request is on the party asserting the objection.  (See Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

MEET AND CONFER

Though not explicitly stated in the Declaration of Christopher Orlando, it appears based on the IDC held on April 13, 2023 with a different judicial officer, that the parties have met and conferred in good faith to resolve this issue.

DISCUSSION

The alleged incident occurred on August 25, 2020. Of the discovery requests in dispute, numbers 1 to 2 seek copies of all witness or party statements regarding the incident. Number 6 to 7 seek documents that support Defendant’s contention that it is not at fault. Defendant is withholding a statement from Marlene Trejo, an employee who inspected the floor before the incident and witnessed the scene immediately after the incident. (Pl. Exh. 3, SROG No. 5, FROG No. 12.1.)

Defendant claims that Trejo’s statement is privileged based on the attorney-client privilege and work product.

As an initial matter, the Court finds Plaintiffs have demonstrated good cause to seek the statement of Trejo, since it could contain information about the state of the flooring, which is relevant to the case. Thus, the burden now shifts to Defendant to justify the objections.

Attorney-Client Privilege

“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: 

1. When the employee of a defendant corporation is also a defendant in his own right (or is a person who may be charged with liability), his statement regarding the facts with which he or his employer may be charged, obtained by a representative of the employer and delivered to an attorney who represents (or will represent) either or both of them, is entitled to the attorney client privilege on the same basis as it would be entitled thereto if the employer employee relationship did not exist;

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.) 

Here, Plaintiffs focus on Marlene Trejo’s intent.[1] However, while the speaker’s intent does “originally govern[]” the confidentiality of the document where the employee has not been expressly directed by the employer to make the statement, here, Target directs its employees at the request of the insurance carrier to make statements. (McCort Dec. ¶ 4.) Therefore, it is the intent of the employer that controls. (D.I. Chadbourne, supra, 60 Cal.2d at 737 [principle number 10]; see also Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533 [“Where, as here, 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. When the corporate employer has more than one purpose in requiring the report, the dominant purpose will control.”] [citations omitted].) Target’s primary purpose is to assist in anticipation of litigation. (McCort Dec.¶ 5.) Accordingly, the Court finds that Trejo’s witness statement is protected by the attorney-client privilege.[2]

On the other hand, Plaintiffs argue that Defendant has identified the statement as a document that supports Defendant’s contentions. (See Motion at p. 13, citing Ex. 7.) The Court agrees that if Defendant intends to waive the attorney-client privilege and rely on the document, it must produce the statement in discovery.

Prior Accident/Claims/ Lawsuits

Defendant also objects to numbers 66 to 71 which request documents about prior and subsequent slip and fall claims, accidents, and lawsuits against Defendant in the past five years. Plaintiff argues the requests are reasonably calculated to produce evidence about notice of the defective floor. Plaintiff cites to authority that prior evidence of accidents can be admissible to proving notice.

Defendant argues these requests are overbroad because Plaintiff allegedly slipped on spilled water— a transitory feature which is unrelated to past falls. Defendant distinguishes the case authority provided by Plaintiff as involving more permanent conditions rather than spilled water. However, given the broad scope of discovery, the Court finds that past accident reports, claims, or lawsuits involving spills may lead to the discovery of admissible evidence, including relating to the issues of notice and habit or custom evidence regarding a failure to clean or warn.[3] (Code Civ. Proc. § 2017.010.)

On the other hand, Plaintiff does not explain how subsequent incidents are reasonably calculated to lead to admissible evidence. Accordingly, the Court denies the motion to compel regarding subsequent incidents.

CONCLUSION AND ORDER

Therefore, the Court GRANTS the motion to compel further regarding Plaintiffs’ Request for Production of Documents, Set One, Numbers 66 to 71, as they relate to past incidents.

The Court DENIES the motion to compel further regarding Plaintiffs’ Request for Production of Documents, Set One, Numbers 1–2, 6–7 as they relate to Marlene Trejo’s statement.

Plaintiffs to provide notice and file a proof of service of such.