Judge David S. Cunningham, Case Number: 22STCV19686, Date: 2025-01-16 Tentative Ruling

Judge: David S. Cunningham, Case: 22STCV19686, Date: 2025-01-16 Tentative Ruling

Case Number: 22STCV19686 Hearing Date: January 16, 2025 Dept: 11

Estate of Julie Arnoff (22STCV19686)

Tentative Ruling Re: Motion to Compel Re: Further Deposition

Date: 1/16/25

Time: 2:30 pm

Moving Party: FPI Management, Inc. (“FPI”)

Opposing Party: Estate of Julie Arnoff, et al. (collectively “Plaintiffs”)

Department: 11

Judge: David S. Cunningham III

______________________________________________________________________________

TENTATIVE RULING

The hearing on FPI’s motion to compel is continued.

The Court grants FPI leave to file an amended separate statement.

BACKGROUND

This is a toxic-exposure case.

Here, FPI asks the Court to compel a further deposition of Sylvia Tidwell, the person most knowledgeable (“PMK”) of Santa Fe Art Colony Tenants Association.

LAW

“If a deponent fails to answer a deposition question or produce documents or things designated in the deposition notice or subpoena, the examiner may either complete the examination on other matters or adjourn the deposition.” (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2024 Update) ¶ 8:787.)

“In either event, if the examiner wants an answer to the question or the documents produced, the examiner must file a motion to compel[.]” (Ibid.)

DISCUSSION

The first issue concerns rule 3.1345. Plaintiffs claim the motion should be denied because FPI’s separate statement “does not contain the factual and legal reasons why further responses should be compelled, it does not contain the actual response by Plaintiff, it does not include the definitions, [and] [i]t does not include Plaintiff’s prior responses to the Preliminary Fact Sheets or her responses to written Requests for Production.” (Opposition, p. 6.)

FPI asserts that the motion should not be denied on procedural grounds. FPI contends the separate statement “sufficiently describe[s] the factual and legal reasons why further production and deposition should be compelled[.]” (Reply, p. 4.)

The Court agrees with Plaintiffs that the separate statement is defective. Rule 3.1345 requires a separate statement to set forth:

• Each interrogatory (or other discovery request) to which further answer is sought, numbered and set forth verbatim;

• The answer or objection made by the opposing party to each such discovery request, also verbatim;

• The reason why further responses should be ordered by the court (i.e., the factual or legal reason why the objection is invalid or the answer given is incomplete);

• If necessary, the text of all definitions, instructions and other matters required to understand each discovery request and the response to it;

• Other discovery requests and responses if they are relevant to why further responses are necessary to the present discovery request; and

• A summary of any pleadings or other documents on file by the party relying on them in the present discovery dispute.

(Edmon & Karnow, supra, at ¶ 8:1151 [citing Rules of Court, rule 3.1345(c)], emphasis in original.) Importantly, FPI fails to state Plaintiffs’ answers. (See FPI’s Sep. Statement, p. 2.)[1] The Court cannot tell from the face of the separate statement whether Plaintiffs objected in part, claimed privilege in part, or agreed to produce all responsive documents.

Nevertheless, the Court finds that FPI should receive an opportunity to submit an amended separate statement. The hearing is continued for this purpose.

As a matter of guidance, based on the current record, the Court notes the following. The subject document requests are request numbers 9, 10, and 11. FPI contends further responses should be ordered because the PMK only made a partial production of responsive documents and failed to produce “notes, minutes, agendas, communications, [and] member rolls” dated 2018 and 2019. (Ibid.) The Court believes that FPI shows good cause (see Motion, pp. 3-4, 4-5) but disagrees in part. Request numbers 9 and 11 merely request “personal notes[,]” so “minutes, agendas, communications, [and] member rolls” do not need to be produced. (Ibid.) Further responses, if ordered, would be limited to non-privileged, responsive notes that have not already been produced. Request number 10 is broader. It seeks all “DOCUMENTS . . . regarding the condition of the PREMISES[.]” (Ibid.) Assuming “notes, minutes, agendas, communications, [and] member rolls” fall within the “DOCUMENTS” and “PREMISES” definitions, a further response, if ordered, would require production of all non-privileged, responsive documents that have not already been produced. Whether a further deposition should be ordered depends on whether further documents end up being produced. If further documents do get produced, the Court would be inclined to grant a short deposition (two to four hours) to address those documents.

[1] The definitions of the capitalized terms in the subject document requests are also missing. (See ibid.)

Estate of Julie Arnoff (22STCV19686)

Tentative Ruling Re: Motion to Compel Re:

Center for Toxicology and Environmental Health LLC

Date: 1/16/25

Time: 2:30 pm

Moving Party: Estate of Julie Arnoff, et al. (collectively “Plaintiffs”)

Opposing Party: Center for Toxicology and Environmental Health LLC (“CTEH”)

Department: 11

Judge: David S. Cunningham III

______________________________________________________________________________

TENTATIVE RULING

Plaintiffs’ motion to compel is:

* granted as to request numbers 4 through 14 and 16 through 17; and

* denied as to request number 15.

BACKGROUND

This is a toxic-exposure case.

Here, Plaintiffs move to compel Defendant CTEH “to provide further responses to the Defendants Preliminary Fact Sheet and a ‘privilege log’ for documents withheld under claim of privilege or protection.” (Notice of Motion, p. 2.)

LAW

The Code of Civil Procedure authorizes motions to compel further responses to interrogatories and document requests. (See Code Civ. Proc. §§ 2030.300, subd. (a) [interrogatories], 2031.310, subd. (a) [document requests].)

“When asserting claims of privilege or attorney work product protection, the objecting party must provide ‘sufficient factual information’ to enable other parties to evaluate the merits of the claim, ‘including, if necessary, a privilege log.’” (Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2024 Update) ¶ 8:1474.5 [noting that the “burden to show preliminary facts supporting application of [a] privilege [is] not met where [the defendant] fail[s] to produce [a] privilege log or identify any specific confidential communications”], emphasis in original.)

“As the term is commonly used by courts and attorneys, a ‘privilege log’ identifies each document for which a privilege or work product protection is claimed, its author, recipients, date of preparation, and the specific privilege or work product protection claimed.” (Id. at ¶ 8:1474.5a, emphasis in original.)

“The information in the privilege log must be sufficiently specific to allow a determination of whether each withheld document is or is not [in] fact privileged.” (Ibid. [observing that a “privilege log is deficient” if it “fail[s] to describe [the] documents or contents (other than noting they [are] emails with counsel) since not all communications with attorneys are privileged”].)

“There is no ‘burden’ defense to the ‘statutory requirement’ to produce a privilege log.” (Id. at ¶ 8:1474.5b.)

Moreover, “[i]n ruling on a motion to compel document production, the court may require the party who objected on the ground of privilege to prepare and serve a privilege log.” (Id. at ¶ 8:1474.8.)

DISCUSSION

According to Plaintiffs, case-management order number 2 makes fact sheets a type of discovery subject to the Code of Civil Procedure in terms of compelling further responses. (See Motion, p. 4.)

The requests from the fact sheet at issue here are request numbers 4 through 17. (See Plaintiffs’ Sep. Statement, pp. 2-8.)

Request Number 4

Request: “Identify and produce all DOCUMENTS reflecting or related to Defendant’s communications and all correspondence exchanged with any co-defendant concerning the of any substance listed in paragraphs 16, 21 through 24 of the Third Amended Complaint and all related DOCUMENTS. Substances: benzene, chromium, ethylbenzene, vinyl chloride, mercury, trichloroethylene (‘TCE’), tetrachloroethylene (‘PCE’).” (Id. at p. 2.)

Response: “The responding Defendant objects to this Request in so far as it seeks information and materials that are protected by the attorney/client privilege and work product doctrines, which, in the State of California, have been extended to communications with consulting experts. See Cal Evid Code § 952, § 954. See § 2016.010 of the Civil Discovery Act. See DeLuca v. State Fish Co., Inc., 217 Cal. App. 4th 671 (2013). See e.g. Scotsman Mfg. Co. v. Superior Court of Orange County, 242 Cal. App. 2d 527, and Swartzman v. Superior Court of Los Angeles County, 231 Cal. App. 2d 195 (1964). A privilege log will be provided upon written request.” (Ibid.)

Plaintiffs ask the Court to order CTEH to produce a privilege log. (See ibid.; see also Notice of Motion, p. 2.) Plaintiffs claim the first and second case-management orders require a privilege log to be produced. (See Motion, pp. 5-6.)

CTEH contends it already produced a privilege log. (See Opposition, p. 3; see also CTEH’s Sep. Statement, p. 2.)

On the current record, the Court disagrees with CTEH. There is a privilege log attached to the declaration of attorney Teanna Buchner. (See Buchner Decl., Ex. 1.) The declaration states that the privilege log is a copy Defendant Fifteen Group Capital LLC’s “privilege log relating to privileged CTEH documents.” (Id. at ¶ 3.) It is not a privilege log submitted by CTEH itself, and it is unclear whether the log covers all CTEH documents that are requested in request number 4. CTEH needs to provide a privilege log of its own that does cover all such documents.

CTEH’s objection to the contents of Plaintiffs’ separate statement pursuant to rule 3.1345 has technical appeal, but it is not a sufficient reason for denying a further response.

Request Number 5

Request: “When did Defendant first become aware of the existence of any substances listed in response to question 4 at SFAC? Identify the date for each substance.” (Plaintiffs’ Sep. Statement, p. 3.)

Response: “See the response to Question 4.” (Ibid.)

Plaintiffs: “The answer to this question is wholly non-responsive. This question asks for a date. It does not ask for the substance of attorney/client privileged communications or work product. Note that this request doesn’t ask for documents.” (Id. at pp. 2-3.)

CTEH: “This does not provide factual or legal reasons to compel further as required by CRC 3.1345; Does not comply with remaining portions of CRC 3.1345 as it omits definitions.” (CTEH’s Sep. Statement, pp. 2-3.)

Also CTEH: “A privilege log has been produced. The request seeks the content of privileged discussions because the information was available to responding party only by way of attorney-client privileged communications. Accordingly, the request improperly seeks to compel information in contravention of the attorney-client privilege.” (Id. at p. 3.)

Granted. Request number 5 does not seek documents and does not ask CTEH to provide the details or contents of an attorney-client communication. CTEH fails to cite authority applying the attorney-client privilege and/or work-product privilege to a date. A further response is necessary.

Request Number 6

Request: “Specify each substance listed in response to question 4 Defendant informed Plaintiffs they were potentially exposed to at levels associated with adverse health effects. For each substance, identify the date and means said communication concerning exposure occurred.” (Plaintiffs’ Sep. Statement, p. 3.)

Response: “See the response to Question 4.” (Ibid.)

Plaintiffs: “The answer to this question is wholly non-responsive. It asks for communications to Plaintiffs about exposure, and does not seek to invade the attorney/client privilege or work product doctrine. Note that this request doesn’t ask for documents.” (Ibid.)

CTEH: “This request is vague as phrased and seemed to seek information related to specification of substances obtained by way of privileged communications. As a practical matter, verified response regarding all communications with tenants have been provided in response to Requests for Production (Set One) and July 23, 2024 deposition of Shawn Wnek.” (CTEH’s Sep. Statement, p. 3.)

Granted. Same as request number 5.

Request Number 7

Request: “How did Defendant become aware of the existence of each substance listed in response to question 4 at SFAC? Describe how Defendant became aware of each substance. Identify and produce all DOCUMENTS reflecting or related to any communications regarding substances listed in question 4.” (Plaintiffs’ Sep. Statement, p. 3.)

Response: “See the response to Question 4.” (Ibid.)

Plaintiffs: “The answer to this question is wholly non-responsive and does not seek to invade the attorney/client privilege or work product doctrine. It simply asks how responding party. Further, despite requests from Plaintiff, no privilege log has been provided per Case Management Order No. 1 (December 7, 2023) and Case Management Order No. 2 (June 4, 2024) required CTEH to provide a privilege log for any documents withheld under claim of privilege or work product. Section V(A) of CMO #1 specifically states: “Parties shall serve a privilege log pursuant to CCP section 2031.240(c)(1) if a document is withheld under assertion of privilege.” Section VI (A) of CMO #2 states: Parties shall serve a privilege log pursuant to CCP section 2031.240(c)(1) if a document is withheld under assertion of privilege.” (Id. at pp. 3-4.)

CTEH: “This does not provide factual or legal reasons to compel further as required by CRC 3.1345; Does not comply with remaining portions of CRC 3.1345 as it omits definitions. A privilege log has been produced. The documents sought cannot be compelled, as reflected in the privilege log and Declaration of Peter Modlin, as they are attorney client privileged materials between a client (the Owners) and thereby protected by the privilege held by Fifteen Group. (Fireman's Fund Ins. Co. v. Superior Court (2011) 196 Cal. App.4th 1263, 1274; see also Insurance Co. of North America v. Sup. Ct. (1980) 108 Cal.App.3d 758, 765.) Inquiry into how CTEH became aware of any information related to the Property is necessarily protected by the attorney client privilege as all information was provided within the scope of CTEH’s retention by Gibson Dunn.” (CTEH’s Sep. Statement, pp. 3-4.)

Granted. If CTEH became aware via attorney-client conversations, it should say so in a further response, and CTEH should provide a privilege log that covers all responsive documents that are being withheld.

Request Number 8

Request: “From who or what entity did Defendant become aware of the existence of any substance listed in response to question 4 at SFAC. State from whom Defendant became aware of each hazardous substance listed in response to question 4.” (Plaintiffs’ Sep. Statement, p. 4.)

Response: “See the response to Question 4.” (Ibid.)

Plaintiffs: “The answer to this question is wholly non-responsive. This question asks for a name. It does not ask for the substance of attorney/client privileged communications or work product. Note that this request doesn’t ask for documents.” (Ibid.)

CTEH: “This does not provide factual or legal reasons to compel further as required by CRC 3.1345; Does not comply with remaining portions of CRC 3.1345 as it omits definitions. A privilege log has been produced. Inquiry into the source of information, when the source is covered under the attorney client-privilege is privileged information. If identification of the “name” of where information was obtained would necessarily expose privileged communications then that information is privileged and cannot be compelled.” (CTEH’s Sep. Statement, pp. 4-5.)

Granted. Same as request number 7.

Request Number 9

Request: “State all steps taken to protect residents of SFAC from alleged and potential exposure to any substance listed in response to question 4 once you learned of the potential exposure to any such chemical vapors at SFAC.” (Plaintiffs’ Sep. Statement, p. 4.)

Response: “The Responding Defendant denies having/having had any control over the alleged exposure at issue in the instant suit, and thus deny any responsibility or obligation as it relates to this request. Moreover, the responding Defendant objects to this Request in so far as it seeks information and materials that are protected by the attorney/client privilege and workproduct doctrines, which, in the State of California, have been extended to communications with consulting experts. See Cal Evid Code § 952, § 954. See § 2016.010 of the Civil Discovery Act. See DeLuca v. State Fish Co., Inc., 217 Cal. App. 4th 671 (2013). See e.g. Scotsman Mfg. Co. v. Superior Court of Orange County, 242 Cal. App. 2d 527, and Swartzman v. Superior Court of Los Angeles County, 231 Cal. App. 2d 195 (1964). A privilege log will be provided upon written request.” (Ibid.)

Plaintiffs: “The answer to this question is wholly non-responsive. This question asks for steps taken, if any, to advise Plaintiffs about their exposure. It does not ask for the substance of attorney/client privileged communications or work product. Note that this request doesn’t ask for documents.” (Ibid.)

CTEH: “This does not provide factual or legal reasons to compel further as required by CRC 3.1345; Does not comply with remaining portions of CRC 3.1345 as it omits definitions. A privilege log has been produced. Inquiry into the “steps taken” necessarily seeks attorney-client privileged inasmuch as all CTEH work was done at the “direction and to assist” Peter Modlin (Gibson Dunn). (See Declaration of Peter Modlin.)” (CTEH’s Sep. Statement, p. 5.)

Granted. Plaintiffs’ rationale is persuasive.

Request Number 10

Request: “Has anyone ever told Defendant that exposure to any substance listed in response to question 4 to which Plaintiff alleges exposure can cause physical injuries, illnesses, or conditions?” (Plaintiffs’ Sep. Statement, p. 5.)

Response: “The Responding Defendant objects to this Request in so far as it seeks information and materials that are protected by the attorney/client privilege and workproduct doctrines, which, in the State of California, have been extended to communications with consulting experts. See Cal Evid Code § 952, § 954. See § 2016.010 of the Civil Discovery Act. See DeLuca v. State Fish Co., Inc., 217 Cal. App. 4th 671 (2013). See e.g. Scotsman Mfg. Co. v. Superior Court of Orange County, 242 Cal. App. 2d 527, and Swartzman v. Superior Court of Los Angeles County, 231 Cal. App. 2d 195 (1964). A privilege log will be provided upon written request.” (Ibid.)

Plaintiffs: “The answer to this question is wholly non-responsive. This question asks for a yes or no answer. It does not ask for the substance of attorney/client privileged communications or work product. Note that this request doesn’t ask for documents.” (Ibid.)

CTEH: “A privilege log has been produced. The request seeks the content of privileged discussions because the information was available to responding party only by way of attorneyclient privileged communications. Accordingly, the request improperly seeks to compel information in contravention of the attorney-client privilege.” (CTEH’s Sep. Statement, p. 6.)

Granted. Same as request number 7. CTEH should provide a further response that says, definitively, whether the responsive information came from communications with attorneys and/or attorney consultants to show that the privilege applies.

Request Number 11

Request: “If the answer to question 10 is yes, (1) state specifically each of the person(s) who told you of these potential injuries, illnesses, or conditions; (2) when such communication was made; (3) when such information was communicated to Plaintiffs; and (4) attach any copies of the communications.” (Plaintiffs’ Sep. Statement, p. 5.)

Response: “Not applicable. See the response to question 10.” (Ibid.)

Plaintiffs: “The answer to this question is wholly non-responsive. This question asks for names and dates, and asks for copies of communications with tenants. It does not ask for the substance of attorney/client privileged communications or work product.” (Ibid.)

CTEH: “The explanation for why information should be compelled ignores the various subsections of this request, improperly attempting to couch the request as an effort only to identify communications with tenants. Instead, the request clearly seeks again the identity of who told responding party the information, which is privileged, when the information was communicated to responding party, which is privileged, and seeks copies of such communications, which are privileged and are reflected in the privilege log.” (CTEH’s Sep. Statement, p. 7.)

Granted. Same as request numbers 7 and 10.

Request Number 12

Request: “Describe in detail all representations you made regarding any substance listed in response to question 4 at SFAC made to any defendant or third party. Identify (1) the person(s) or entities who made the representations; (2) the date each representation was made; (3) to whom the representation was made; and (4) how each representation was made.” (Plaintiffs’ Sep. Statement, p. 6.)

Response: “See the response to Question 4.” (Ibid.)

Plaintiffs: “The answer to this question is wholly non-responsive. This question asks for information about representations made to third parties. It does not ask for the substance of attorney/client privileged communications or work product. Note that this request doesn’t ask for documents.” (Ibid.)

CTEH: “This does not provide factual or legal reasons to compel further as required by CRC 3.1345.” (CTEH’s Sep. Statement, p. 7.)

Also CTEH: “A privilege log has been produced. The information sought is any communications with any defendant or third party (which here would include Gibson Dunn without definition otherwise) and cannot be compelled, as reflected in the privilege log and Declaration of Peter Modlin, as they are attorney client privileged materials between a client (the Owners) and thereby protected by the privilege held by Fifteen Group. ((Fireman's Fund Ins. Co. v. Superior Court (2011) 196 Cal. App.4th 1263, 1274; see also Insurance Co. of North America v. Sup. Ct. (1980) 108 Cal.App.3d 758, 765.)” (Id. at pp. 7-8.)

Granted. Same as request number 10.

Request Number 13

Request: “If Defendant communicated with a government body, organization, or agency related to the substances listed in response to question 4 at SFAC, identify and produce all DOCUMENTS related to or reflecting any communication between Defendant and such governmental body, organization, or agency.” (Plaintiffs’ Sep. Statement, p. 6.)

Response: “See the response to Question 4.” (Ibid.)

Plaintiffs: “The answer to this question is wholly non-responsive. This question requires production of all communications with government entities. It does not ask for the substance of attorney/client privileged communications or work product. A privilege log is required per the Court’s orders if any documents are withheld under claim of privilege.” (Ibid.)

Also CTEH: “A privilege log has been produced. The documents sought cannot be compelled, as reflected in the privilege log and Declaration of Peter Modlin, as they are attorney client privileged materials between a client (the Owners) and thereby protected by the privilege held by Fifteen Group. ((Fireman's Fund Ins. Co. v. Superior Court (2011) 196 Cal. App.4th 1263, 1274; see also Insurance Co. of North America v. Sup. Ct. (1980) 108 Cal.App.3d 758, 765.)” (Id. at pp. 8-9.)

Granted. Same as request numbers 4, 7, and 10.

Request Number 14

Request: “Did Defendant perform air-quality tests at SFAC or have others perform such tests?” (Plaintiffs’ Sep. Statement, p. 6.)

Response: “See the response to Question 4.” (Ibid.)

Plaintiffs: “The answer to this question is wholly non-responsive. This question asks for a “yes” or “no” answer. It does not ask for the substance of attorney/client privileged communications or work product. Note that this request doesn’t ask for documents.”

Also CTEH: “A privilege log has been produced. The information sought is if Defendant or any others performed air quality tests. Inasmuch as responding party is an agent retained by Gisbon Dunn the information sought by this request is privileged and confidential, as reflected in the privilege log and Declaration of Peter Modlin. (Fireman's Fund Ins. Co. v. Superior Court (2011) 196 Cal. App.4th 1263, 1274; see also Insurance Co. of North America v. Sup. Ct. (1980) 108 Cal.App.3d 758.” (Ibid.)

Granted. Same as requests 5 and 9.

Request Number 15

Request: “If the answer to question 40 is yes, identify the date(s) on which such tests were performed, the results of such tests, and produce and documents relating to the tests or test results.” (Plaintiffs’ Sep. Statement, p. 6.)

Response: “A question ‘40’ is not contained in the subject document. Nevertheless, if the question was meant to refer to question ‘14’, then see the response to question ‘14’.” (Ibid.)

Plaintiffs: “The answer to this question is wholly non-responsive. This question asks for dates, results and production of such tests. It does not ask for the substance of attorney/client privileged communications or work product. A privilege log is required per the Court’s orders if any documents are withheld under claim of privilege.” (Ibid.)

CTEH: “The answer is entirely responsive. It highlights that the request is unintelligible, and nevertheless seeks to provide response which is consistent with protecting the attorney-client privileged information sought. Specifically, the request seeks production of “documents relating to the tests or test results.” Inasmuch as the information available to CTEH responsive to this request was obtained solely in its role as an agent retained by Gibson Dunn, the information is protected by the attorney-client privilege as reflected in the privilege log and Declaration of Peter Modlin.” (CTEH’s Sep. Statement, p. 10.)

Denied. There is no question 40.

Request Number 16

Request: “Is Defendant aware of any air quality tests that were performed at SFAC? If yes, identify the date Defendant became aware of such tests, the individuals or companies that performed the test and the date(s) of the tests, and produce any documents relating to the tests, including any communications and/or test results.” (Plaintiffs’ Sep. Statement, p. 7.)

Plaintiffs: “The answer to this question is wholly non-responsive. This question asks for the identity and description of any air quality tests formed at the Art Colony. It does not ask for the substance of attorney/ client privileged communications or work product.” (Ibid.)

CTEH: “The answer is entirely responsive as the request seeks information obtained solely through the attorney-client privilege and specifically seeks “communications” related to the same. As reflected in the [privilege] log and Declaration of Peter Modlin, the information and communications sought are privileged.” (CTEH’s Sep. Statement, pp. 10-11.)

Granted. Same as request numbers 4, 5, 7, and 10.

Request Number 17

Request: “Identify the two tenants with whom the defendant discussed the air-quality tests. Further, please describe the conversation including the date, and produce any documents relating to or constituting such discussions.” (Plaintiffs’ Sep. Statement, p. 8.)

Plaintiffs: “The answer to this question is wholly non-responsive. This question asks for the names of the two tenants who discussed the air quality tests and asks for date, time and production of any documents relating to such discussion. It does not ask for the substance of attorney/client privileged communications or work product. A privilege log is required per the Court’s orders if any documents are withheld under claim of privilege.” (Ibid.)

CTEH: “This does not provide factual or legal reasons to compel further as required by CRC 3.1345.” (CTEH’s Sep. Statement, p. 11.)

Granted. Same as request numbers 4, 5, 7, and 10.

Estate of Julie Arnoff (22STCV19686)

Tentative Ruling Re: Motion to Compel Re: Art Colony Property, LLC

Date: 1/16/25

Time: 2:30 pm

Moving Party: Estate of Julie Arnoff, et al. (collectively “Plaintiffs”)

Opposing Party: Art Colony Property, LLC (“Art Colony”)

Department: 11

Judge: David S. Cunningham III

______________________________________________________________________________

TENTATIVE RULING

The Court grants Plaintiffs’ motion to compel.

BACKGROUND

This is a toxic-exposure case.

Here, Plaintiffs move to compel Defendant Art Colony “to provide a ‘privilege log’ for documents withheld under claim of privilege or protection.” (Notice of Motion, p. 2.)

LAW

“There is no ‘burden’ defense to the ‘statutory requirement’ to produce a privilege log.” (Id. at ¶ 8:1474.5b.)

DISCUSSION

Plaintiff’s motion concerns document request number 4: “Identify and produce all DOCUMENTS reflecting or related to Defendant’s communications and all correspondence exchanged with any codefendant concerning the presence of any substance listed in paragraphs 16, 21 through 24 of the Third Amended Complaint and all related DOCUMENTS.” (Plaintiffs’ Sep. Statement, p. 2.)

Art Colony submitted an objection-only response: “Objection. This request, as writte[n], seeks information subject to the attorney-client privilege. Subject to the above objections, please see documents products herewith.” (Ibid.)

Plaintiffs do not seek a further response; rather, they ask the Court to order Art Colony to produce a privilege log. (See Notice of Motion, p. 2.) Plaintiffs claim the first and second case-management orders require a privilege log to be produced. (See Motion, pp. 5-6.)

Art Colony contends the motion should be denied because Art Colony already produced a privilege log. (See Opposition, pp. 1, 3.)

On the current record, the Court disagrees with Art Colony. The opposition brief states that Defendants FPI Management, Inc. and Center for Toxicology and Environmental Health, LLC (“CTEH”) served the privilege log, not that Art Colony did. (See id. at p. 3.) More importantly, the cited support – paragraph 8 of attorney Brian Ning’s declaration and exhibit 1 to the declaration of attorney Teanna Buchner – are unsupportive. Paragraph 8 merely states that Ning “received a copy of Property Owner’s privilege log via email[;]” there is no sentence showing service of the privilege log on Plaintiffs. (Ning Decl., ¶ 8). Buchner’s declaration describes the privilege log as a copy of Defendant Fifteen Group Capital LLC’s “privilege log relating to privileged CTEH documents.” (Buchner Decl., ¶ 3.) The log does not appear to cover the Art Colony documents that are requested in request number 4. Art Colony needs to provide a log that does cover all such documents, so Plaintiffs’ motion to compel is granted.

Estate of Julie Arnoff (22STCV19686)

Tentative Ruling Re: Motion to Compel Re: Fifteen Group Capital LLC

Date: 1/16/25

Time: 2:30 pm

Moving Party: Estate of Julie Arnoff, et al. (collectively “Plaintiffs”)

Opposing Party: Fifteen Group Capital LLC (“Fifteen Group”)

Department: 11

Judge: David S. Cunningham III

______________________________________________________________________________

TENTATIVE RULING

The Court grants Plaintiffs’ motion to compel.

BACKGROUND

This is a toxic-exposure case.

Here, Plaintiffs move to compel Defendant Fifteen Group “to provide a ‘privilege log’ for documents withheld under claim of privilege or protection.” (Notice of Motion, p. 2.)

LAW

“There is no ‘burden’ defense to the ‘statutory requirement’ to produce a privilege log.” (Id. at ¶ 8:1474.5b.)

DISCUSSION

Fifteen Group submitted an objection-only response: “Objection. This request, as written seeks information subject to the attorney-client privilege. Subject to the above objections, please see documents products herewith.” (Ibid.)

Plaintiffs do not seek a further response; rather, they ask the Court to order Fifteen Group to produce a privilege log. (See Notice of Motion, p. 2.) Plaintiffs claim the first and second case-management orders require a privilege log to be produced. (See Motion, pp. 5-6.)

Fifteen Group contends the motion should be denied because Fifteen Group already produced a privilege log. (See Opposition, pp. 1, 3.)

On the current record, the Court disagrees with Fifteen Group. The opposition brief states that Defendants FPI Management, Inc. and Center for Toxicology and Environmental Health, LLC (“CTEH”) served the privilege log, not that Fifteen Group did. (See id. at p. 3.) More importantly, the cited support – paragraph 8 of attorney Brian Ning’s declaration and exhibit 1 to the declaration of attorney Teanna Buchner – are unsupportive. Paragraph 8 merely states that Ning “received a copy of Property Owner’s privilege log via email[;]” there is no sentence showing service of the privilege log on Plaintiffs. (Ning Decl., ¶ 8). Buchner’s declaration describes the privilege log as a copy of Fifteen Group’s “privilege log relating to privileged CTEH documents.” (Buchner Decl., ¶ 3.) It is unclear whether the log covers all Fifteen Group documents that are requested in request number 4. Fifteen Group needs to provide a log that does cover all such documents, so Plaintiffs’ motion to compel is granted.

Estate of Julie Arnoff (22STCV19686)

Tentative Ruling Re: Motion to Compel Re: FPI Management, Inc.

Date: 1/16/25

Time: 2:30 pm

Moving Party: Estate of Julie Arnoff, et al. (collectively “Plaintiffs”)

Opposing Party: FPI Management, Inc. (“FPI”)

Department: 11

Judge: David S. Cunningham III

______________________________________________________________________________

TENTATIVE RULING

The hearing on Plaintiffs’ motion to compel is continued, and FPI is ordered to provide an amended privilege log.

BACKGROUND

This is a toxic-exposure case.

Here, Plaintiffs ask the Court to “rul[e] on the claim of work product protection claimed by” FPI regarding “the ‘inadvertently produced documents’ and other documents withheld under claim of work product protection.” (Notice of Motion, p. 2.)

LAW

“There is no ‘burden’ defense to the ‘statutory requirement’ to produce a privilege log.” (Id. at ¶ 8:1474.5b.)

DISCUSSION

Plaintiffs claim FPI produced the “inadvertently produced documents” on June 7, 2024. (See Motion, p. 5.)

Thirty-five days later, FPI filed a document titled “Notice to Destroy Copies of Inadvertently Produced Documents” on July 12, 2024. (See ibid.) According to Plaintiffs, the Notice pertains to 361 emails. (See id. at pp. 5-6.)

Plaintiffs contend the motion should be granted because FPI took too long to try to claw the documents back. (See id. at pp. 6-7.) They assert that case-management order number 2 (“CMO No. 2”) requires notice of inadvertent production to be made within 30 days, not 35 days. (See id. at p. 7.)

The Court disagrees. CMO No. 2 states:

B. Inadvertent Production of Privileged Information.

If a party inadvertently produces information or documents that it considers privileged or protected, in whole or in part, or learns of the production of privileged or protected material by a third person, the party may retrieve such information or documents or parts thereof, as follows:

1. Within thirty (30) days of the date of discovery by the party of the inadvertent production by it or by a third person of such documents, or no later than ninety (90) days before the date set for trial, whichever occurs first, the party asserting that an inadvertent production has occurred must give notice to all parties that the party claims the document, in whole or in part, to be privileged or protected. In addition, the notice must state the nature of the privilege or protection and the factual basis for asserting it. If the party asserting inadvertent production gives notice within thirty (30) days of production of the documents, no party will contest the inadvertence of the production. The Court will make appropriate orders confirming privileged status for inadvertent disclosures upon application and showing of good cause.

2. Upon receipt of such notice, all parties who have received copies of the produced documents shall promptly (1) return all such copies to the party asserting inadvertent production, or (2) provide written assurance to such party that all such copies have been destroyed. In the event that only part of the document is claimed to be privileged or protected, the party asserting the inadvertent production shall furnish to all parties redacted copies of such documents, removing only the part(s) thereof claimed to be privileged or protected, together with such written notice. Upon receipt of the redacted copy, each party shall promptly (1) return all unredacted copies to the party asserting inadvertent production, or (2) provide written assurance to such party that all such copies have been destroyed.

(Ning Decl., Ex. 2, pp. 11-12, § VI.B, emphasis added.) FPI claims it did not receive notice of the inadvertent production until June 24, 2024, less than 30 days before July 12^th. (See Opposition, pp. 2-3.) More importantly, FPI’s attorney, Brian Ning, declares that he produced the subject documents by mistake because he “was under the mistaken impression” that counsel for the Property Owner Defendants had “reviewed and approved” the production. (Ning Decl., ¶ 7.) These factors support finding FPI’s conduct timely under CMO No. 2.

The next issue is whether FPI meets its burden to show that the documents are privileged. The answer is no. The privilege log states the date, author, and recipient of each document. (See Mandell Decl., Ex. A to Ex. 3 [attaching privilege log to FPI’s “Notice to Destroy Copies of Inadvertently Produced Documents”].) One, identical privilege is asserted over and over: “Work product in anticipation of future litigation.” (Ibid.) What is missing is “a brief description of the document[s] and [their] contents or subject matter sufficient to determine whether the privilege applies[.]” (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4^th 1116, 1130.) Consequently, the Court finds that the hearing should be continued and that FPI should provide an amended privilege log. (See Tuft, et al., Cal. Practice Guide: Professional Responsibility & Liability (The Rutter Group December 2024 Update) ¶ 7:368.18 [advising that, when a privilege log is deficient, the court can “order the party to provide a further privilege log that includes the information necessary to rule on the attorney-client and work product objections”], emphasis in original.)

Both sides discuss waiver. The Court declines to reach the waiver issue given the need for amendment. FPI can address waiver in the amended privilege log by explaining who each recipient is – attorney, consultant, employee, etc.