Judge Audra Mori, Case 21STCV07425 2022-08-26 Tentative Ruling

Plaintiff Lucero Castro (“Plaintiff”) filed this action against Defendant 99 Cents Only Stores, LLC (“Defendant”) for injuries relating to Plaintiff’s alleged slip and fall in Defendant’s store on June 15, 2019.

On May 2, 2022, the parties participated in an Informal Discovery Conference (“IDC”) concerning special interrogatories and requests for production of documents (“RPDs”) propounded by Plaintiff on Defendant. However, the discovery issues were not resolved at the IDC.

Plaintiff then filed the instant motions to compel further responses to special interrogatories, set one, Nos. 1, 3, and 5, and RPDs, set one, Nos. 6, 8, 30-31, 33-36, 39, 46-47, 78, 82, and 84-85. Defendant opposes the motions, and Plaintiff filed a reply to each opposition.

On receipt of a response to interrogatories the demanding party may move for an order compelling further responses if:

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

A party may move for an order compelling a further response to a request for production of documents if:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

“Unless otherwise limited by order of the court in accordance with [the discovery statutes], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action....” (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-13.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Id. at 1013.)

Special interrogatories, set one, Nos. 1, 3, and 5 request information pertaining to past slip and fall incidents for one-year at the subject store and employee information for the employees working at the store on the date of the incident. Plaintiff contends Defendant’s responses to these special interrogatories were evasive and incomplete, and that the requested information is relevant to Defendant’s claims in this action. In opposition, Defendant argues that regarding prior incidents, Plaintiff is seeking information that is privileged or protected as attorney work product, and that the request is overbroad as to time. In reply, Plaintiff argues that Defendant fails to support its improper objections.

Special interrogatory 1 requests that for the one year prior to and including the date of the incident, that Defendant “describe each incident where a customer slipped on a liquid, food, debris or foreign substance on the store floors inside the SUBJECT STORE.” (Mot. Exh. A.) Defendant objected to this interrogatory on the ground that it seeks documents subject to the attorney-client privilege and protected as attorney-work product, and that the request is overbroad and seeks irrelevant information.

It is the burden of the objecting party to support the applicability of a particular privilege or objection. (See Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494-95.)

Concerning Defendant’s attorney-client and work product objections, the attorney-client privilege protects confidential communications between attorney and client.

As used in this article, ‘confidential communication between client and lawyer’ means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.

(Evid. Code § 952.) As to the work-product doctrine, CCP § 2018.030(a) states “[a] writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.”

Special interrogatory 1, on its face, is not requesting any information or documents concerning any communications between Defendant and Defendant’s counsel, nor is the interrogatory seeking copies of work product protected information or documents. Rather, the interrogatory requests Defendant describe certain slip and fall incidents at the store for a one-year period. Prior similar incidents are relevant in analyzing foreseeability of injury for purposes of duty analysis. (Dix v. Live Nation Entertainment, Inc. (2020) 56 Cal.App.5th 590, 611; see also Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 126-27 [What is required to be foreseeable is the “general character” of the event or harm, not its “precise nature or manner of occurrence.”].) Furthermore, Defendant does not establish that information for the requested one-year period is overbroad such that no response should be provided. As Plaintiff argues, the information may be directly relevant to the issues in this case.

Therefore, Plaintiff’s motion to compel further responses to special interrogatory No. 1 is granted. Defendant is ordered to serve a further response to the special interrogatory, set one, No. 1 within twenty (20) days.

Special interrogatory 3 requests Defendant state the name of each of its employees that worked at the subject store on June 15, 2019, and special interrogatory 5 requests Defendant state the hours worked by each of its employees specifically assigned to inspect and clean the store floors on the date of the incident. Defendant initially objected to these interrogatories and then served further responses objecting in part and providing the names of certain employees that worked at some point between 3:00 p.m. and 9:00 p.m. on the relevant date. (Opp. Exh. H.)

Plaintiff argues that she is entitled to obtain the identity of all employees who worked on the relevant date and the hours they worked because such persons may have been direct witnesses to the incident, may have knowledge of the incident, or knowledge of Defendant’s cleaning and inspection procedures. Plaintiff provides that after Defendant proposed a stipulated protective order as to the contact information for Defendant’s former employees, Plaintiff agreed to the proposal, but Defendant has still failed to provide complete and responsive information.

Defendant, in opposition, argues the requested information is irrelevant and will not lead to the discovery of any admissible evidence. In addition, Defendant asserts Plaintiff’s slip and fall occurred at 7:45 p.m., and that it has now disclosed the identities of all employees that worked from 3:00 p.m. to 9:00 p.m. on the date of the incident. Defendant asserts that the Court at the IDC advised Defendant to disclose the identities of employees that worked from 3:00 p.m. to 9:00 p.m., and that it has provided this information. Defendant contends that as a result, the motion is now moot as to special interrogatories 3 and 5. Further, Defendant argues that the disclosure of contact information of the employees present on the date of the incident violates the right of privacy of those employees with no knowledge of the incident.

Current and former employees unquestionably have a legitimate expectation of privacy in their addresses and telephone numbers. (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1252.)

Unlike privilege, privacy protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery. The showing required to overcome the protection depends on the nature of the privacy right asserted; in some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown. (Hill v. National Collegiate Athletic Ass'n (1994) 7 Cal.4th 1, 34-35.)

“In Hill, [the California Supreme Court] established a framework for evaluating potential invasions of privacy.” (Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 552, citing Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams, supra, 3 Cal.5th at 552.) “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Ibid.) “A court must then balance these competing considerations.” (Ibid.)

The California Supreme Court has rejected the “de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information.” (Id. at 557.) It has directed courts to “instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.” (Ibid.) A compelling need for the discovery is not always required. (Ibid.) “What suffices to justify an invasion will…vary according to the context.” (Ibid.)

In this case, as to Defendant’s assertion that the Court advised Defendant to serve responses containing only the identity of employees that worked from 3:00 p.m. to 6:00 p.m., the Court notes that it issued no orders and made no findings in the Minute Order concerning the subject discovery at the IDC. (See Min. Order, May 2, 2022.) Defendant has admittedly not provided the information for all employees that worked on the date of the incident, or the hours of each employee specifically assigned to inspect and clean the floors on the date of the incident.

To the extent that Defendant argues that the hours, names, address and telephone numbers of all employees who worked on the date of the incident is irrelevant and violates the right to privacy of employees without knowledge of the incident, Plaintiff is only requesting the address and telephone number for Defendant’s former employees. Although Defendant’s former employees may have a protected privacy interest in their contact information- phone number and address- that they gave to Defendant as their employer, Plaintiff identifies a legitimate interest in obtaining this information. (See Williams, 3 Cal.5th at 552.) As Plaintiff avers, Defendant’s current and former employees may have knowledge of the incident or circumstances leading up to it, or knowledge of Defendant’s cleaning procedures and whether the procedures were followed on the date of the incident. Defendant does not identify any alternative means through which Plaintiff can determine which of Defendant’s current or former employees have knowledge of the incident. “Nothing could be more ordinary in discovery than finding out the location of identified witnesses so that they may be contacted and additional investigation performed.” (Puerto, 158 Cal.App.4th at 1254; see Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 373-74 [“Our discovery statute recognizes that ‘the identity and location of persons having [discoverable] knowledge’ are proper subjects of civil discovery…”].) Additionally, while Defendant states that it has disclosed the identity of former employees to Plaintiff, there is no evidence that Defendant has served full and complete responses to the subject interrogatories with all requested information, and thus, the request to compel further responses to these interrogatories is not moot.

Based on the foregoing, Plaintiff’s motion to compel further responses to special interrogatories Nos. 3 and 5 is granted. Defendant is ordered to serve a further response to the special interrogatories, set one, Nos. 3 and 5 within twenty (20) days.

RPDs 33-36 seek documents showing the name, hours worked, and timecards of each of Defendant’s employees that worked at the subject store on the date of the incident, while RPDs 46-47 request documents showing the information of the persons that cleaned or swept the floors and time sheets for such persons.

In response to these RPDs, Defendant objected on the ground that the RPDs sought information protected by the right to privacy, and in a further response, Defendant referred Plaintiff to Defendant’s further responses to Plaintiff’s special interrogatories 3 and 5. (Opp. Exh. H.) However, for the same reasons articulated above in granting Plaintiff’s motion to compel further responses to special interrogatories 3 and 5, Plaintiff has demonstrated a need and legitimate interest in the requested information, and Defendant fails to show that it has served full and complete responses to the subject RPDs.

Therefore, Plaintiff’s motion to compel further responses to RPDs Nos. 33-36 and 46-47 is granted. Defendant is ordered to serve a further response to the RPDs Nos. 33-36 and 46-47 within twenty (20) days.

RPDs 30 and 31 request documents showing or describing each incident where a customer slipped on a liquid, food, debris or other foreign substance on the floors of the store for one year prior to June 15, 2019, and documents showing or describing each complaint made to Defendant about liquid, food, debris or other foreign substance on the floors of the store for the six-month period prior to June 15, 2019. Defendant objected to these RPDs on the grounds they seek documents subject to the attorney-client privilege and protected as attorney-work product, and that the request is overbroad and seeks irrelevant information

Plaintiff avers that information concerning prior similar incidents is relevant to the issues in this action, including concerning notice and foreseeability. Defendant, as it argued above in connection with its opposition to the request to compel a further response to special interrogatory 1, contends the RPDs are seeking information that is privileged or protected as attorney work product, and that the requests are overbroad as to time. However, as with special interrogatory 1, Defendant fails to support the applicability of the attorney-client privilege or work-product doctrine to the requested information. (Evid. Code § 952; CCP § 2018.030(a); see Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494-95.) Defendant fails to show that RPDs 30-31 is seeking any documents concerning communications between Defendant’s and defense counsel, or any documents concerning defense counsel’s impressions, conclusions, opinions, or legal research or theories in this action. Notably, although Defendant created a privilege log concerning other documents requested by Plaintiff’s RPDs, set one, Defendant did not include any documents responsive to RPDs 30-31 in a privilege log.

Therefore, Plaintiff’s motion to compel further responses to RPDs Nos. 30-31 is granted. Defendant is ordered to serve a further response to RPDs, set one, Nos. 30-31 within twenty (20) days.

Plaintiff asserts in response to RPDs, set one, Nos. 6, 8, 39, 78, 82, and 84-85, Defendant served a privilege log. (Mot. Exh. I.) The privilege log identifies three documents described as (1) customer incident report, (2) employee statement of Jonathan Lima, and (3) Employee inspection of site after incident. Plaintiff argues that based upon the privilege log, neither the attorney-client nor work product privileges apply because the documents were prepared by Defendant’s own employees and defense counsel was not involved in preparing the documents.

Defendant, in opposition, asserts that it directs employees to complete an incident report and employee statement for which the dominant purpose is the transmittal to defense counsel for use in the event of litigation. Defendant contends that the documents identified by it in its privilege log are protected by the attorney-client and work product privileges.

It is not enough for a party to assert that something is protected privileged, but rather the burden is on the party asserting the objection to prove the preliminary facts that show a privilege or protection applies. (See Mize v. Atchison, T. & S. F. ry. Co. (1975) 46 Cal.App.3d 436, 447.)

In determining whether an employee statement or report is protected as privileged, the case of D.I. Chadbourne, Inc. v. Superior Court (1964), details eleven basic principles to be applied. (See 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;

(Id. at 737.) Furthermore, research, accident and investigative reports may be subject to qualified work product protection. (See Payless Drug Stores, Inc. v. Superior Court (1976) 54 Cal.App.3d 988, 991; see also Coito v. Sup.Ct. (2012) 54 Cal.4th 480, 498-99.)

In Payless Drug Stores, Inc., the plaintiff sought to compel production of accident reports prepared by the defendant’s employees following a slip and fall incident. (54 Cal.App.3d at 989-90.) In finding the reports to be privileged, the Court noted:

It appears from the declarations submitted by petitioner that the insurance carrier required reports of petitioner corporate employer in cases in which accidents were claimed to have occurred; that both the insurance carrier and petitioner intended the reports to be confidential for transmission to and use by attorneys defending petitioner in litigation arising out of such claims; that the reports were transmitted by the insurance carrier to the attorney for petitioner for his use in defending litigation arising out of this claim.

Evidence to the effect that the report in question was prepared by an employee of the corporate employer on the date of the accident on a preprinted form furnished by the insurance carrier headed ‘Public Liability Accident—Report Every Accident Immediately to Harbor Insurance Company’ is sufficient to establish the dominant purpose. No other purpose was shown. Although the report was not labeled ‘confidential,’ as was the report in Sierra Vista Hospital v. Superior Court (1967), 248 Cal.App.2d 359, 56 Cal.Rptr. 387, [D.I.] Chadbourne establishes that when a corporate employer directs the employee, at the request of the insurance carrier, to make such a report, the intent of the employer controls.

In this case, while Defendant contends that the dominant purpose of the relevant documents is for the transmittal to defense counsel for use in the event of litigation, Defendant does not submit any evidence to support this assertion. For example, Defendant does not submit a declaration from any of Defendant’s agents or employees detailing the dominant purpose of the reports and documents, nor does defense counsel address this in its declaration attached to the opposition. Defendant’s arguments in the memorandum of points and authorities are not evidence. Defendant, thus, fails to show the dominant purpose of the subject reports is preparation for litigation. (See D.I. Chadbourne, Inc., 60 Cal.2d at 737; see also Payless Drug Stores, Inc., 54 Cal.App.3d at 991.) Moreover, as Plaintiff argues in her reply, Defendant’s privilege log does not otherwise set forth sufficient factual information to allow a determination that the requested documents are protected by attorney-client privilege or work-product doctrine. (See CCP § 2031.240(c)(1).)

Plaintiff’s motion to compel further responses to RPDs Nos. 6, 8, 39, 78, 82, and 84-85 is granted. Defendant is ordered to serve a further response to RPDs, set one, Nos. 6, 8, 39, 78, 82, and 84-85 within twenty (20) days.

Sanctions are mandatory. (CCP §§ 2030.300(d), 2031.310(h).) The Court awards Plaintiff two hours for preparing each motion [four hours], one hour for each reply [two hours], and one hour to appear for the hearing- but awards this time only once- at a rate of $200 per hour for a total of $1,400.00 in attorney fees. Further, Plaintiff is awarded two motion filing fees of $60, or $120 total, as costs.

Plaintiff does not identify any conduct by Defendant warranting sanctions against Defendant directly. Sanctions are imposed against Defendant’s counsel only. Defendant’s counsel is ordered to pay sanctions to Plaintiff, by and through Plaintiff’s attorney of record, in the total amount of $1,520.00, within twenty days.

Hon. Audra Mori

Judge of the Superior Court