Judge: Elaine Lu, Case: BC691527, Date: 2022-08-02 Tentative Ruling

Case Number: BC691527    Hearing Date: August 2, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On January 30, 2018, Plaintiff Lianna Shakhnazarian (“Plaintiff”) filed the instant malpractice action.  On October 22, 2021, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants Freedman + Taitelman LLP (“F&T”), Bryan Freedman, and Patricia Arias Musitano[1].  The FAC asserts two causes of action for (1) Professional Negligence and (2) Breach of Fiduciary Duty.

On May 26, 2022, Defendant F&T filed the instant motion to compel Plaintiff’s further responses to Request for Production, Set One (“RPDs”).  On July 20, 2022, Plaintiff filed an opposition.  On July 26, 2022, Defendant F&T filed a reply.

Legal Standard

Requests for Production of Documents

Code of Civil Procedure section 2031.310 provides, in pertinent part, as follows:

(a) 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:

(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.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

Code Complaint Response

A code-compliant response to a request for production consists of any of the following: (1) a statement that the party will comply, (2) a representation that the party lacks the ability to comply, or (3) an objection.  (CCP §§ 2031.210.)  A statement that the party will comply must state that the Request for Production (“RPD”) “will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”  (CCP § 2031.220.)  “If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.”  (CCP § 2031.240(a).)  If an objection is made the responding party must “[i]dentify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.”  (CCP § 2031.240(b)(1).)

Discussion

            Defendant F&T moves to compel Plaintiff’s further responses to RPDs Nos. 4-19.

Meet and Confer

Pursuant to Code of Civil Procedure section 2031.310(b)(2) a motion to compel further responses to a request for production “shall be accompanied by a meet and confer declaration under Section 2016.040.”  (CCP § 2031.310(b)(2).)  “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (CCP § 2016.040.) 

Defendant F&T has adequately met and conferred.  (Samani Decl. ¶¶ 10-13, Exhs. 8-9.)

RPDS Nos. 4-19

            “All DOCUMENTS which evidence the terms on which YOU resolved the UNDERLYING ACTION.”  (RPD No. 4.)

            “All DOCUMENTS which evidence the terms on which YOU resolved the NEW YORK ACTION.”  (RPD No. 5.)

            “All DOCUMENTS which evidence any COMMUNICATIONS regarding the terms on which YOU resolved the UNDERLYING ACTION.”  (RPD No. 6.)

            “All DOCUMENTS which evidence any COMMUNICATIONS regarding the terms on which YOU resolved the NEW YORK ACTION.”  (RPD No. 7.)

            “All DOCUMENTS which evidence any written discovery propounded in the UNDERLYING ACTION.”  (RPD No. 8.)

            “All DOCUMENTS which evidence any written discovery responses served in the UNDERLYING ACTION.”  (RPD No. 9.)

            “All DOCUMENTS comprising the transcripts of any depositions taken in the UNDERLYING ACTION.”  (RPD No. 10.)

            “All DOCUMENTS which evidence any written discovery propounded in the NEW YORK ACTION.”  (RPD No. 11.)

            “All DOCUMENTS which evidence any written discovery responses served in the NEW YORK ACTION.”  (RPD No. 12.)

            “All DOCUMENTS comprising the transcripts of any depositions taken in the NEW YORK ACTION.”  (RPD No. 13.)

            “All DOCUMENTS which evidence any declarations or affidavits YOU filed in the UNDERLYING ACTION.”  (RPD No. 14.)

            “All DOCUMENTS which evidence any declarations or affidavits YOU filed in the NEW YORK ACTION.”  (RPD No. 15.)

            “All DOCUMENTS which evidence any declarations or affidavits CAREY filed in the UNDERLYING ACTION.”  (RPD No. 16.)

            “All DOCUMENTS which evidence any declarations or affidavits CAREY filed in the NEW YORK ACTION.”  (RPD No. 17.)

            “All DOCUMENTS which evidence any declarations or affidavits BULOCHNIKOV filed in the UNDERLYING ACTION.”  (RPD No. 18.)

            “All DOCUMENTS which evidence any declarations or affidavits BULOCHNIKOV filed in the NEW YORK ACTION.”  (RPD No. 19.)

In response to each of these requests, Plaintiff responds identically stating: “Objection. The request is vague, ambiguous, unduly burdensome, overbroad, and compound. The request is also irrelevant nor [sic] reasonably calculated to lead to the discovery of admissible evidence. The request seeks to invade the attorney-client privilege and attorney work product doctrine. The request calls for speculation and a legal conclusion. The request impermissibly seeks information that would invade Plaintiff’s right to privacy. Notwithstanding the foregoing objections, Plaintiff responds as follows: Plaintiff has no documents in her possession, custody, and control other than those equally available to defendants. The case was resolved and any other information that may or may not exist will require a court order. Responding Party reserves the right to amend and/or supplement this response at a later date.”  (Response to RPDs No. 4-19.)

Objection: Relevance, Vague, Burdensome, Overbroad, Oppressive

            As to the overbroad objection “any party may obtain discovery regarding any matters, 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.”  (CCP § 2017.010.)  “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.”  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)  However, discovery should not be denied if the information sought has any relevance to the subject matter. Thus, while relevancy is a possible ground for an objection, it is difficult to adequately justify it.  (See generally Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 217.)  “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.”  (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].) 

As to burden, “burden must be sustained by evidence showing the quantum of work required” and “to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.”  (West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.)  Moreover, even if [discovery requests] are found to be “burdensome and oppressive,” the Court should not simply sustain the objection and thereby excuse any answer. Rather, the Court should limit the question to a reasonable scope. (Borse v. Superior Court (Southern Pac. Co.) (1970) 7 Cal.App.3d 286, 289.)

            Here, each of the requests relates to discovery exchanged in the underlying litigation or the settlement of the Underlying Action or the New York Action, which involved the same parties.  (Samani Decl. ¶ 4, Exh. 2 [Final Operative Complaint in Underlying Action].)  As noted in the minute orders in the Underlying Action, the underlying parties settled the action in approximately the summer of 2021.  (Samani Decl. ¶ 6, Exh. 4.) 

For a claim of legal malpractice based on an underlying action that has settled, “‘[t]o prevail in a legal malpractice action, “[s]imply showing the attorney erred is not enough.” [Citation.] The plaintiff must also establish that, but for the alleged malpractice, settlement of the underlying lawsuit would have resulted in a better outcome. [Citations.] “Thus, a plaintiff who alleges an inadequate settlement in the underlying action must prove that, if not for the malpractice, she would certainly have received more money in settlement or at trial.”’”  (Masellis v. Law Office of Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1084.)  Accordingly, evidence and the terms of the settlement for the Underlying Action and related New York Action between the underlying parties is clearly relevant as to whether Plaintiff could have obtained a better outcome. 

            Further, there is no evidence or any indication in the response or opposition as to the quantum of work that it would take for Plaintiff to respond to the request.  Accordingly, Plaintiff’s objections as to relevance, burden, being overbroad, and vague are unsupported and overruled.

Privacy Objection

The right of privacy in the California Constitution (art. I, § 1), “protects the individual's reasonable expectation of privacy against a serious invasion.”  (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250 [italics in original]; See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [“In Hill, we established a framework for evaluating potential invasions of privacy. 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.  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. A court must then balance these competing considerations.”].)

            As the Supreme Court has “previously observed, the right of privacy extends to sexual relations (Vinson v. Superior Court, supra, 43 Cal.3d at p. 841, 239) and medical records (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41.).”  (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.)  Similarly, the constitutional right to freedom of association requires protection of a person’s membership in associations, whether they pertain to religious, political, economic, or even purely social matters.  (Britt v. Superior Court (1978) 20 Cal.3d 844, 852; see also Pacific-Union Club v. Superior Court (1991) 232 Cal.App.3d 60, 71.)  Further, “‘Courts have frequently recognized that individuals have a substantial interest in the privacy of their home.’ [Citation.]”  (Puerto, supra, 158 Cal.App.4th at p.1252.)  In addition, there is a clear privacy interest in confidential settlement agreements.  (Hinshaw, Winkler, Draa, Marsh & Still (1996) 51 Cal.App.4th 233, 242 disapproved of on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531 [“confidential settlement agreements are entitled to privacy protection.”].) 

In establishing a privacy interest “the burden [is] 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.”  (Williams, supra, 3 Cal.5th 531, 557.)  “Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.”  (Ibid.)

            Here, the opposition notes, the documents that Defendants seek include information that Plaintiff has redacted to protect the privacy interest of the settling parties in the Underlying Action and related New York Action.  (Lanzetta Decl. ¶ 1.)  There is a clear privacy interest.  However, the extent of the privacy interest is unclear.  As noted in the opposition, Plaintiff has produced documents in redacted form.  (Lanzetta Decl. ¶ 1.)  The stipulated protective order does not authorize the unilateral redacting of discovery.  (Samani Decl. ¶ 8, Exh. 6.)  Plaintiff’s redactions are presumably pursuant to the objection based on privacy.  The parties have not presented the redacted discovery to the Court, and the Court declines to opine as to whether the specific redactions are warranted.  If necessary, Defendants may move to compel compliance and in that context move to compel Plaintiff to produce the documents in unredacted form.

            However, even in the absence of such motion, Plaintiff’s written responses to the requests for production are not code complaint; when an objection is made and documents withheld – such as by redaction – the response must “[i]dentify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.”  (CCP § 2031.240(b)(1).)  Here, Plaintiff’s responses do not identify what information has been redacted – i.e., name, social security number, addresses, etc. – or the basis for the redaction – i.e., privacy of the opposing settling party, pursuant to a specific confidentiality agreement, pursuant to a specific protective order, etc.

            Accordingly, Plaintiff must serve verified, further, code-compliant responses that identify the information being redacted in the documents provided and the privacy interest on which each redaction is based. 

Objection: Compound

With regard to compound questions, the court finds that this objection too is unsupported.  “No request for admission shall contain subparts, or a compound, conjunctive, or disjunctive question” (CCP § 2033.060(f).)  Since any question using an ‘and’ or ‘or’ could be compound and conjunctive this “‘rule should probably apply only where more than a single subject is covered by the question.’” (Clement v. Alegre, (2009) 177 Cal. App. 4th 1277, 1291) [quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 8:978.1, p. 8F–21] [emphasis in original].)  Here, each of the requests at issue involves a single subject and is thus not a compound question.  Accordingly, Plaintiff’s objection that the questions are compound is overruled.

Objection: Attorney Client Privilege/Work Product Privilege

“In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege.”  (Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.)  “The party asserting the privilege need only present facts which ‘support a prima facie claim of privilege.”  (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 894.)  “After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.”  (Venture Law Group, supra, 118 Cal.App.4th at p.102.)

Here, some of the requests could theoretically include attorney-client privileged information, such as communications between counsel in the Underlying and New York Action and Plaintiff regarding the settlement.  However, no privilege log has been provided identifying what if any documents that are responsive are being withheld based on attorney client privilege/work product.  Moreover, there are undoubtedly responsive documents to at least some of these requests that are not privileged.  Further, to the extent that there are responsive privileged documents, Plaintiff has not indicated which specific documents are privileged.  This is insufficient.  Plaintiff must provide a privilege log that identifies what documents Plaintiff is withholding and sufficient factual information to support a prima facie claim of privilege. (See CCP § 2031.240(b)(1-2), [“b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”] [Italics added.].)  If – as indicated in the opposition – there are no responsive documents in Plaintiff’s possession, custody, or control then the objection is meritless as there are no documents to withhold based on said objection. 

Accordingly, Plaintiff must provide a privilege log identifying any which documents are being withheld – if any – and enough information to establish that the withheld document is protected by attorney client privilege/work product.

            Failure to Serve Code-Compliant Responses

Finally, the Court notes that Plaintiff’s substantive responses are not code compliant.  In her response, Plaintiff states that she has no documents in her possession, custody, and control “other than those equally available to defendants.”  Plaintiff’s injection of a qualifier -- “other than those equally available to defendants”  -- is improper.  Moreover, a statement of an inability to comply requires Plaintiff to “affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.”  (CCP § 2031.230.)  The response must “also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.”  (CCP § 2031.230.)  Finally, a statement that Plaintiff is unable to comply must “set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”  (CCP § 2031.230.)  Plaintiff’s responses fail to comply with any of these requirements.  Plaintiffs’ responses are not code compliant.

Sanctions

Here, sanctions were not requested in the notice.  Therefore, no sanctions can be awarded.  (CCP § 2023.040, [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”].)

Conclusion and ORDER

Based on the foregoing, Defendant Freedman + Taitelman LLP’s motion to compel further responses to request for production of documents, set one is GRANTED.

Plaintiff is to serve verified, further code compliant responses to Requests No. 4-19 without objection – except attorney client privilege/work product and privacy – within ten (10) days of notice of this order.  In addition, Plaintiff is to provide a privilege log identifying any documents withheld based on attorney client privilege/work product and/or privacy.  As to any redactions of produced documents, Plaintiff is to identify in the respective response the information being redacted in the documents provided and the particular privacy basis for the redaction.  In addition, Plaintiff is to produce responsive documents – if any – pursuant to the further response clearly identifying which request it is responsive to as required under Code of Civil Procedure section 2031.280(a) within fifteen (15) days of notice of this order.

            Moving Party is to give notice and file proof of service of such.

DATED:  August 2, 2022                                                       ___________________________

Elaine Lu

                                                                                          Judge of the Superior Court