Judge: Frank M. Tavelman, Case: 21STCV23285, Date: 2023-03-10 Tentative Ruling

Case Number: 21STCV23285    Hearing Date: March 10, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO QUASH DEPOSITION SUBPOENA

ALLEGATIONS: 

This action was filed by Carmen Calusian, Calvin Tahmasebi, and Kevin Tamhasebi (collectively “Plaintiffs”) on May 21, 2022 as against Gohar Karen Amirkhanyan (“Amirkhanyan”) and Alpine Meadows Homeowners Association aka Alpine Meadows HOA (“Alpine”). The action arises out of a fire that took place in a townhouse owned by Gohar and rented by Plaintiffs.  

HISTORY: 

Amirkhanyan filed the motion to quash subpoena on January 12, 2023. Plaintiffs filed their opposition on February 6, 2023. Amirkhanyan filed their reply on February 9, 2023.

This motion was heard on February 17, 2023 at which time the Court continued the hearing and ordered Amirkhanyan to submit a privilege log. The Court also allowed for supplemental briefing on the matter.

Amirkhanyan filed a privilege log on March 2, 2023 and supplemental briefing on March 7,2023. Plaintiffs submitted their supplemental briefing on March 7, 2023.

RELIEF REQUESTED:

Amirkhanyan requests the court quash Plaintiffs’ subpoena for production of records directed to Allstate Insurance Company (“Allstate”). The Court notes that Plaintiffs’ subpoena also requests the deposition of a member of Allstate which Amirkhanyan does not address.

ANALYSIS: 

I.                    LEGAL STANDARD 

Code of Civil Procedure section 1987.1 grants the trial court authority to quash a subpoena when necessary.  Section 1987.1 states, “If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.  In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”   

II.                 MERITS

Requests as to which Privilege is Claimed

Amirkhanyan requests that Plaintiffs’ subpoena be quashed in its entirety.  Amirkhanyan argues that the subpoena should be quashed on grounds that it requests documents which are subject to protection under the work product doctrine, attorney-client privilege, and the insurance code. At the February 17 hearing, the Court expressed that Amirkhanyan’s motion did not adequately establish which documents were subject to the privileges claimed. As such the Court ordered production of a privilege log, which Amirkhanyan has subsequently provided.

A review of the privilege log reveals that Amirkhanyan is asserting the privilege as to documents requested in the following document requests: Requests Nos. 1, 3, 5, 7, 9, 10, 11, 13, 23, 18, and 26. The remainder of the document requests are unmentioned in Amirkhanyan’s supplemental briefing.

The documents listed as privileged are as follows:

1.      Allstate Insurance Company’s Claim Notes

2.      Email Correspondence from Allstate Insurance Company to Gohar Karen Amirkhanyan

3.      Letter from Allstate Insurance Company to Gohar Karen Amirkhanyan Dated April 17, 2020

4.      Email Correspondence between Allstate Insurance Company and Gohar Karen Amirkhanyan Dated April 17, 2020

5.      Letter from Allstate Insurance Company to Gohar Karen Amirkhanyan Dated May 5, 2020

6.      Letter from Allstate Insurance Company to Gohar Karen Amirkhanyan Dated May 6, 2020

7.      Email Correspondence between Allstate Insurance Company and Gohar Karen Amirkhanyan Dated August 31, 2021

8.      Larry Rohrer Investigations, Inc.’s Photograph Log Prepared for Allstate Insurance Company

9.      Larry Rohrer Investigations, Inc.’s Fire Origin and Cause Investigation Report Prepared for Allstate Insurance Company Dated May 21, 2020

10.  Invoice from Larry Rohrer Investigations, Inc. to Allstate Dated May 22, 2022.

Attorney-Client Privilege

Amirkhanyan asserts attorney client privilege as to Documents 1-7 in her privilege log.

“The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 7344.) As the moving party, Amirkhanyan bears the burden of establishing preliminary facts necessary to the exercise of the privilege. (Id.)

Central to Amirkhanyan’s assertion of attorney client privilege is the theory of a tripartite relationship between insurer, the insured, and retained counsel. Amirkhanyan cites to Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076 (“BOA”) as the basis for this theory.

When an insurer retains counsel to defend its insured, a tripartite attorney-client relationship arises among the insurer, insured, and counsel. As a consequence, confidential communications between either the insurer or the insured and counsel are protected by the attorney-client privilege, and both the insurer and insured are holders of the privilege. In addition, counsel's work product does not lose its protection when it is transmitted to the insurer.

(BOA supra, 212 Cal.App.4th 1076, at 1083.)

The Court in BOA explained that the attorney retained by the insurer, the insurer, and the insured form a loose coalition during the pendency of a claim. (Id. 1091.) This coalition arises out of the contractual obligations between the parties stemming from the insurance and retainer agreements. (Id.) A formal retainer agreement between all three parties is not required to create this relationship, it is sufficient that the insurer retains counsel to represent the insured. (Id.)

The Court notes that the facts of BOA do not track with this case. BOA concerned a request for document production of communications to and from a law firm (“GKCJ”) retained by Fidelity National Title Insurance Company (“Fidelity”) to represent Bank of America. The court in BOA, upon reviewing the privilege log, stated that each communication as to which the privilege was asserted was between an attorney at GKCJ and either Fidelity or Bank of America. (Id.) As such, the court found that Bank of America had met its burden of establishing the preliminary facts to support the exercise of attorney-client privilege. (Id.)

Here, none of the communications in Documents 2-7 are communications between Allstate and an attorney, nor between Amirkhanyan and an attorney. Amirkhanyan does not point to any language in BOA which supports the finding of the privilege as to communications between an insurer and the insured (applying to Documents 2-7). Amirkhanyan does suggest that communication with counsel is contained in Document 1, which it describes as “Allstate Insurance Company’s analysis of this third-party claim, including communications with counsel and Gohar Karen Amirkhanyan regarding the subject incident.”

The Court is concerned with the labeling of Document 1 as a singular document when it appears from Amirkhanyan’s description that it is actually comprised of several communications. Communications between Allstate and counsel would be privileged, but it does not follow that the remainder of Allstate’s claim notes are also privileged. Courts have employed the “dominant purpose test” when a communication contains information both related and unrelated to the attorney-client relationship. (Costco supra, 47 Cal.4th 725, at 735.) Here it is not clear from the privilege log submitted by Amirkhanyan that Allstate’s claim notes even qualify as a singular communication subject to the dominant purpose test. Amirkhanyan cites to no legal authority which supports the finding of privilege to an entire omnibus document which contains attorney communication that can be omitted. If Amirkhanyan’s believes that the attorney communication is so enmeshed with its claims notes as to be inseparable, it must state so in its moving papers.

Amirkhanyan cites Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529 in both the moving papers and supplemental briefing.  Amirkhanyan cites to this case in asserting that an insureds communications to her liability insurance company, concerning the event which may be the basis of a claim against the insured covered by the policy is a privileged communication as being between attorney and client.  The Court finds that a key factual distinction renders Scripps uninstructive in the current motion. Scripps concerned a request for documents from a hospital in a wrongful death action. The documents requested were titled “occurrence reports”. (Scripps supra, 109 Cal.App.4th 529, at 532.) The occurrence report read “Confidential: Not part of medical record/ do not photocopy”. (Id.) The hospital stated in asserting the privilege that these occurrence reports were prepared by its employees for the sole purpose of being handed to an attorney in anticipation of litigation. (Id.) Amirkhanyan also cites Soltani-Rastegar v. Superior Court (1989) 208 Cal. App. 3d 424, which contains a similar distinction. In Soltani requests were made for a witness statement by an insured and made to an insurance agent for the sole purpose of defending any future claims. (Soltani supra, 208 Cal. App. 3d 424, at 256.)

Here, Amirkhanyan has made no showing that the Documents 1-7 were prepared solely for the purpose of defending future litigation. Document 1 contains communications with an attorney, but the description in the privilege log does not explain how those communications affected Allstate’s claim notes. Document 1 contains “Allstate Insurance Company’s analysis of this third-party claim, including communications with counsel and Gohar Karen Amirkhanyan regarding the subject incident.” Amirkhanyan makes no showing that the claim notes were prepared solely in anticipation of litigation. Similarly Documents 2-7 are described as “Correspondence regarding background documentation in support of evaluation of claim.” It would appear from this description that the primary purpose of these documents was indeed to evaluate Amirkhanyan’s claim, and not to prepare a defense in any litigation that may arise.

The Court finds that Amirkhanyan has not made a sufficient showing of preliminary facts to assert the attorney-client privilege as to Documents 1-7.  

Work Product Privilege

Attorney work product is governed by C.C.P. § 2018.030 which provides:

“(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.”

The statute above divides attorney work product privilege into two distinct categories. The first, under C.C.P. § 2018.030(a), provides absolute privilege for documents prepared directly by an attorney in preparation for litigation. The purpose of this absolute privilege is to preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases. (Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 814.) The second, under C.C.P. § 2018.030(b), provides conditional privilege for any other attorney work product so long as denial would not unfairly prejudice the party seeking discovery. This qualified privilege applies to all written materials and oral information not reflecting the attorney’s legal thoughts. (Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 468.)

Amirkhanyan maintains in supplemental briefing that Documents 1-7 are subject to the absolute privilege of the attorney work product doctrine, as they contain Allstate Insurance Company’s impressions, conclusions, opinions, or legal research and theories in defense of this third-party claim, and in preparation for this litigation. (Supp. Brief pg. 4.) Amirkhanyan further argues that Documents 8-10 are subject to qualified attorney work product privilege , as they are the opinions of an expert retained by Allstate to evaluate the case.

The Court finds that Amirkhanyan has not sufficiently shown that the attorney work product applies to Documents 1-7. Protection under C.C.P. § 2018.030 requires that the work product is prepared by an attorney. Amirkhanyan makes no statement that an attorney prepared Document 1-7, nor does she point to any law which states that an insurers claim preparation can be considered attorney work product. Document 1 is stated to contain attorney communication, but Amirkhanyan does not proceed to explain how these communications comprise the legal strategies and thoughts protected by the absolute privilege. The Court finds that Amirkhanyan has not shown the work product privilege applies to these Documents 1-7.

Documents 8-10 are asserted to be subject to qualified privilege as they are the work of an expert prepared in the anticipation of litigation. Amirkhanyan cites to Williamson v. Sup.Ct. (Shell Oil Co.) (1978) 21 Cal.3d 829 in claiming that derivative materials created by experts are considered work product. The Court finds that Amirkhanyan misstates the holding in Williamson. The court in Williamson stated that material of a derivative character, such as diagrams prepared for trial, audit reports, appraisals, and other expert opinions, developed as a result of the initiative of counsel in preparing for trial are also to be protected as work product.” (Williamson supra, 21 Cal.3d 829, at 834, citing Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10.) Here Amirkhanyan’s states that the documents prepared by the expert, Larry Rohrer, in anticipation of litigation. (Priv. Log pg. 9, Supp. Brief pg.4.) However, the privilege log also states that Rohrer prepares his investigation for Allstate following the subject incident. (Priv. Log pg. 9.) It is not clear to the Court that Amirkhanyan has show the Rohrer photos and reports to have been developed as a result of the initiative of counsel in preparing for trial. Without a further explanation, the Court finds that Amirkhanyan has not shown the work product privilege applies.

The Court also finds the argument that Documents 8-10 are not subject to disclosure under C.C.P. § 2034 to be unclear. First, Section 2034 was repealed by statute as of July 1, 2005.  Perhaps counsel was referring to §§2034.010 through 2034.720 pertaining to experts.  Amirkhanyan refers to the repealed C.C.P. § 2034 but does not refer to any sections under Title 18 of the Civil Discovery Act regarding expert witnesses. Amirkhanyan argues that witness designation has not occurred and so to request exchange of expert testimony is premature. It is unclear from her motion papers whether Amirkhanyan intends to designate Rohrer as a witness.  

Insurance Code

Amirkhanyan maintains that Documents 1-7 are privileged under Insurance code §791.13. Amirkhanyan provides no additional briefings in the moving papers nor in the supplemental briefing which explains the assertion of this privilege. The Court previously voiced its concerns with respect to Amirkhanyan’s argument, stating,

It is true that this section prohibits an insurer from disclosing personal or privileged information, however it is also true that the code allows for disclosure to a person other than an insurance institution, agent, or insurance-support organization, provided the disclosure was reasonably necessary or if the disclosure was pursuant to a facially valid judicial order. (Ins. Code §§ 791.13(b) &(h).) Amirkhanyan provides no argument as to why the disclosure would not be reasonably necessary or why the subpoena served upon it is facially invalid. As such, the Court does not find that the documents are privileged under the insurance code.

(See February 17, 2023 Minute Order.)

Given that the supplemental briefing does not address the Court’s concerns or the Insurance Code privilege at all, the Court maintains that Plaintiff has failed to adequately evidence the privilege.

III.              CONCLUSION

The Court finds that Amirkhanyan has not shown adequate facts which support her assertion of privilege as to the documents requested. As such, the Court DENIES the motion to quash subpoena on Allstate in its entirety.   In the alternative, should the moving party believe an in camera review of documents remains necessary to maintain any privileges, they may file such a request within 10 Court days of this ruling, as well as a stay for discovery compliance.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Gohar Karen Amirkhanyan’s Motion to Quash Deposition Subpoena came on regularly for hearing on March 10, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION IS DENIED.

DEFENDANT SHALL HAVE TEN COURT DAYS FROM THE DATE OF THIS RULING TO SEEK ANY IN CAMERA REVIEW AND A STAY IN COMPLIANCE TO MAINTAIN ANY PRIVILEGE THAT MAY EXIST.

PLAINTIFF IS TO PROVIDE NOTICE UNLESS ALL PARTIES WAIVE NOTICE.

IT IS SO ORDERED. 

DATE:  March 10, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles