Judge: Anne Hwang, Case: 23STCV13811, Date: 2023-09-19 Tentative Ruling

Case Number: 23STCV13811    Hearing Date: March 20, 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 June 15, 2023, Petitioner Yukinari Yamamoto filed a “Petition to Bring Uninsured Motorist Arbitration under Court’s Jurisdiction.”  Yamamoto’s petition was filed pursuant to Insurance Code §11580.2(f)(2) and Miranda v. 21^st Century Ins. Co. (2004) 117 Cal.App.4th 913, 921-926.  Petitioner filed the petition to bring before the court a discovery dispute between parties to the pending Uninsured Motorist Arbitration (the “Arbitration”).   

The arbitration and this petition arise from an automobile collision that occurred on September 15, 2020.  The at-fault driver, Yaris Rodriguez, was operating her vehicle without adequate insurance. 

On September 19, 2023, the Court granted Petitioner’s motion for issuance of an order granting a commission to take the deposition of Wendy Parton (“Parton”), outside of California. Parton lives in Arizona and is the insurance adjuster assigned by Respondent Commerce West Insurance Company (“Respondent”) to this claim. The Court granted the motion without prejudice to Respondent raising its objections in a motion for protective order or to quash, once the deposition notice was issued and served in Arizona. (Min. Order, 9/19/23.)

On November 29, 2023, Petitioner served a deposition subpoena for Parton, set to take place on December 29, 2023.

 Respondent now moves to quash the subpoena, or for a protective order, arguing that it is burdensome, harassing, and oppressive, and protected by the attorney client privilege and work product doctrine. Petitioner opposes and Respondent replies.

LEGAL STANDARD

Code of Civil Procedure § 1987.1(a) states:

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

California Code of Civil Procedure section 1987.2 provides that “the court may in its discretion award the amount of reasonable expenses incurred in making or opposing [a motion to quash], including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc. section 1987.2(a).)

The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc. § 2025.420(b).)  

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.)

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.) “An attorney-client relationship exists for purposes of the privilege whenever a person consults an attorney for the purpose of obtaining the attorney's legal service or advice.” (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 116–17; see Evid. Code §§ 951, 954.)

“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.) 

The privilege may not be used to shield facts, as opposed to communications, from discovery. (Edwards Wildman Palmer LLP v Superior Court (2014) 231 Cal.App.4th 1214, 1226.) Relevant facts may not be withheld solely because they were incorporated into a communication involving an attorney, and knowledge that is not otherwise privileged does not become so by being communicated to an attorney. (Id.) “On the other hand, the privilege bars discovery of a privileged communication irrespective of whether it includes unprivileged material; ‘when the communication is a confidential one between attorney and client, the entire communication, including its recitation or summary of factual material, is privileged.’ [Citation.]” (Id. at 1226–27.)

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.” 

DISCUSSION

The subpoena at issue asked for the personal appearance of Wendy Parton (“Parton”) and Production of Documents and Things scheduled to take place on December 29, 2023 in Tempe, Arizona. Respondent argues the subpoena is burdensome, oppressive, harassing, and not reasonably calculated to lead to discoverable evidence. Respondent also argues that Parton’s knowledge is protected by the attorney-client privilege and work product doctrine.

Respondent argues that Parton’s sole connection to this matter is as a Claim Consultant and primary contact for Respondent’s counsel. (Motion, 4.) As a result, Respondent argues that any knowledge by Parton is “inextricably intertwined” with the attorney-client privilege and work product doctrine. (Marchesini Decl. ¶ 10.) Parton did not witness the accident and has no personal knowledge of Petitioner’s injuries. The issues in this arbitration are based on a claim for uninsured motorist coverage, and therefore are limited to liability for the accident, causation, and Petitioner’s damages.

            In opposition, Petitioner argues Parton verified Respondent’s discovery responses, and due to the inadequacy of said responses, Parton’s testimony is required.

            The Declaration of Michael Marchesini repeats the argument that because Parton was not a witness to the accident, and is the primary contact to Respondent’s counsel, that all communications are covered by the attorney-client privilege.

However, no privilege log has been provided to the Court, and therefore the Court is unable to find that all testimony and documents sought are covered by the attorney-client privilege or work product protection. Petitioner appears to seek to depose Ms. Parton for the purpose of discovering the process by which responses to form interrogatories were prepared. (Motion at Exh. D [demand for production of documents]; Opposition at p. 4.) To the extent that the deposition seeks to discover if any relevant communications or documents exist that are not covered by the attorney-client privilege or the work product protection, seeks to discover the process by which discovery responses were prepared, and seeks to discover facts to challenge claims of privilege, the deposition appears to seek discoverable, non-privileged testimony. With these limited purposes, the motion to quash is denied.

            Therefore, the motion to quash and, alternatively, for a protective order, is denied.

The Court declines to award monetary sanctions, without evidence that this motion was made in bad faith.

CONCLUSION AND ORDER

Accordingly, the Court DENIES Respondent’s motion to quash Petitioner’s subpoena.

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