Judge Elizabeth Scully, Case 20STCV19525 2023-02-14 Tentative Ruling

On October 15, 2022, plaintiff Sylvia Ramirez (“Plaintiff”) filed a Complaint against Smart & Final, LLC and Smart & Final Stores, LLC for injuries arising from a slip and fall incident at defendant’s premises.

On October 5, 2022, Plaintiff filed the instant Motion to Compel Defendant Smart & Final Stores, LLC’s (“Defendant”) PMK to provide further deposition testimony and produce documents. Plaintiff also requests sanctions. On January 31, 2023, Defendant filed an Opposition to the Motion. On February 8, 2023, Plaintiff filed a Reply.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿¿(Code Civ. Proc., § 2025.010.)¿ A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿¿(Code Civ. Proc., § 2025.280(a).)¿¿

“If, after service of a deposition notice, a party to the action . . . or employee of a party . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc. § 2025.450(a).)

“The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450(b)(2).)

“The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450(b)(1).)

“Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to¿Section 2025.240¿may take a subsequent deposition of that deponent.” (Code Civ. Proc., § 2025.610(a).)

“Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.” (Code Civ. Proc., § 2025.610(b).)

Plaintiff moves the Court for an order compelling Defendant to produce a PMK for further deposition for specific categories. Plaintiff represents that the PMK Defendant produced for deposition was not the PMK for Categories Nos. 1-5 listed in the subject notice. (Agarwal, Decl., Exhs. A-B.) The five Categories seek Defendant’s PMK for Defendant’s video surveillance system on the day of the incident. (Id., Exh. B)

In opposition, Defendant contends that it has already produced its person most knowledgeable regarding the non-existence of the video surveillance video. (Marak Decl., ¶ 6-7.) Defendant represents that three on-duty employees were deposed and questioned regarding their knowledge of the incident and existence of any incident surveillance video. (Id.) Defendant has also served verified discovery responses indicating that no video of the incident exists. (Marak Decl., ¶ 8.)

The Court finds that Defendant does not need to produce a PMK for Categories Nos. 1-3 because those seek a PMK regarding the footage of the incident, and, as set forth above, no footage of the incident exists. The Court also finds that Defendant does not need to produce a PMK for Category No. 4, which seeks testimony regarding what happened to the video, as one Defendant’s on-duty manager testified that the video was not preserved. (Marak Decl., Exh. A 56:13-18.) However, the Court finds that Defendant must produce a PMK for Category No. 5, as that Category relates to a PMK regarding the person who received the preservation letters sent by Plaintiff’s attorney, and the Court does not have any evidence that Defendant produced a PMK regarding that Category.

In addition, Plaintiff asks the Court for an order compelling Defendant to produce the documents that were included in the PMK notice, which Defendant withheld on the grounds that they were protected by the attorney-client and attorney work-product privilege. (Agarwal, Decl., Exh. A-C) Specifically, Plaintiff seeks documents for requests Nos. 12-17. Those requests seek documents related to all slip and fall incidents that occurred at the subject premises from January 1, 2014 to present. Plaintiff’s request is relevant and the information discoverable, absent a showing of privilege or some other basis to resist production.

Defendant asserts the attorney-client/work product privilege and provides a privilege log. Plaintiff contends Defendant’s privilege log is deficient because it does not provide information of when the incidents occurred, where in the store the incident occurred, how many incidents occurred in a particular section of the store, the type of substance the individual slipped on, and other relevant information. (Id., Exh. C.)

In opposition, Defendant contends the incident reports/injury logs are privileged because they were created primarily for the purpose of attorney review. Defendant represents that its injury logs are used to communicate the initial facts of the incident, the observations of Defendant’s employees and the statements of Defendant’s employees, to Defendant’s legal counsel confidentially.

A review of the privilege log reveals that the privileged documents are “Incident Log[s]” from January 1, 2014 to September 7, 2022. (Agarwal, Decl., Exh. C) The incident logs reflects, I relevant part, that the “identity of author” is Smart and Final Risk Loss, which is unclear because the author of the incident log may be an employee who reported on the incident and not someone in the Risk Loss department, although someone at the Risk Loss Department may have created the form to be used and the documents intended recipient is Legal Counsel. (Id.)

“[U]nder Code of Civil Procedure section 2031.240, subdivision (c)(1), if an objection to a document request is based on a claim or privilege or work product, then the response to the request ‘shall provide sufficient factual information for other parties to evaluate the merits of the claim, including, if necessary, a privilege log.’” (Ridell, Inc. v. Superior Court (2017) 14 Cal.App.5th 755, 772; see Code Civ. Proc., § 2031.240(c)(1).)

“[W]hile attorney-client communications are presumed to be confidential, 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 [cleaned up].)

“It has long been recognized that communications made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.” (Scripps Health v. Superior Court, supra, 109 Cal.App.4th at p. 535; see also Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424; Travelers Ins. Cos. v. Superior Court (1983) 143 Cal.App.3d 436.)

In D. I. Chadbourne, Inc. v. Superior Court , the California Supreme Court addressed whether the attorney-client privilege barred the disclosure of a corporate employee’s statement. In so doing, the Supreme Court explained that whether or not the statement should be produced depends on the dominant purpose for which the communication originated. (D. I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 737 [“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”].)(emphasis added.)

[I]t is well settled that a communication is not protected by the attorney-client privilege, even when made in the course of professional employment, unless the client intends that it be treated in confidence. For it is the client, and not the attorney, who may claim the privilege. And that which was not privileged in the first instance may not be made so merely by subsequent delivery to the attorney. When these basic rules are applied to the usual corporate situation, a question arises as to whether the employee who was called upon to make a report or statement intended the same to be in confidence; or, if he had no specific intent, whether he was required by the corporation to make a statement, and (if so) whether the corporation's intent to transmit in confidence to its attorney is sufficient to supply the necessary element of original intent to communicate in confidence?

(Id. at pp. 732–733 [internal citations omitted].) To summarize, “[w]here 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.” (Id. at p. 737; see also Sierra Vista Hosp. v. Superior Court (1967) 248 Cal.App.2d 359 [Incident Report generated by hospital administrator transmitted to hospital’s attorney through the insurance carrier was privileged attorney client communication not subject to disclosure].) In certain cases, incident logs have been found to be privileged when they are “primarily created for the purpose of attorney review whether or not litigation is actually threatened at the time a report is made.” (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 535.)(Scripps Health)

At present, the Court cannot tell the “dominant purpose” from the privilege logs. The privilege log is conclusory. Defendant has not provided sufficient information to establish that the incident logs were to be kept in confidence and transmitted to counsel for review. As Plaintiff points out in her Reply, Defendant failed to provide a declaration, under penalty of perjury, that states that the incident logs are primarily prepared for its attorneys to review and evaluate. Plaintiff points to discrepancies between a prior declaration submitted by Andrew Ulwelling and the lack of any declaration submitted in support of its Opposition. No declaration has been submitted that describes how the injury log comes within the ambit of Scripps Health. Nor has Defendant submitted representative blank copies of the logs for the Court’s review.

Given that it’s Defendant’s burden to establish the communication is privileged, Plaintiff’s Motion to Compel Defendant’s to Produce Documents to Request Nos. 1-5 is CONTINUED to allow Defendant to provide a supplemental declaration, including exhibits, that addresses the factual predicates for its assertion of the privilege.

In light of the rulings above, the Court will rule on Plaintiff’s Request for sanctions at the continued hearing date.

The Court CONTINUES the instant hearing.[1] As stated above, the Court will allow Defendant to provide a supplemental declaration describing the pertinent predicate facts relating to its assertion of the privilege. The Court will then issue a final ruling as to the Request for Production and Sanctions.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] The ruling with respect to the PMK Categories is not being continued and will not change.