Judge: Helen Zukin, Case: 20SMCV01043, Date: 2023-01-10 Tentative Ruling
Case Number: 20SMCV01043 Hearing Date: January 10, 2023 Dept: 207
Background
This action arises from allegations of construction defect
concerning a condominium unit purchased by Plaintiffs Felipe Rodriguez
(“Rodriguez”) and Mary Barrett (“Barrett” and collectively with Rodriguez “Plaintiffs”).
Each unit of the subject condominium are part of Defendant homeowners’
association 1401 Camden, Inc. Association (“Defendant”). Defendant brings three
motions to compel further responses to deposition questions and requests for
production of documents propounded on Rodriguez, Barrett, and third-party
Kathie Kent (“Kent”) in connection with the notices of deposition for those
individuals. Plaintiffs served objections to the document demands, claiming
they called for the protection of documents protected by the attorney-client,
work product, mediation, and trade secret privileges. Plaintiffs oppose
Defendant’s motions to compel. As the motions raise identical issues, the Court
will address them together.
Legal Standard
“Any party may obtain discovery . .
. by taking in California the oral deposition of any person, including any party
to the action. The person deposed may be a natural person, an organization such
as a public or private corporation, a partnership, an association, or a governmental
agency.”¿ (C.C.P. § 2025.010.)
“Subject to Sections 2025.270 and 2025.610,
an oral deposition may be taken as follows: (a) The defendant may serve a deposition
notice without leave of court at any time after that defendant has been served or
has appeared in the action, whichever occurs first. (b) The plaintiff may serve
a deposition notice without leave of court on any date that is 20 days after the
service of the summons on, or appearance by, any defendant. On motion with or without
notice, the court, for good cause shown, may grant to a plaintiff leave to serve
a deposition notice on an earlier date.”¿ (C.C.P. § 2025.210.)¿ “An oral deposition
shall be scheduled for a date at least 10 days after service of the deposition notice.”¿
(C.C.P. § 2025.270(a).)
“The party who prepares a notice of
deposition shall give the notice to every other party who has appeared in the action.
The deposition notice, or the accompanying proof of service, shall list all the
parties or attorneys for parties on whom it is served.”¿ (C.C.P. § 2025.240(a).)¿
“The service of a deposition notice under Section 2025.240 is effective to require
any deponent who is a party to the action . . . to attend and to testify, as well
as to produce any document, electronically stored information, or tangible thing
for inspection and copying.”¿ (C.C.P. § 2025.280(a).)
“Any party served with a deposition
notice that does not comply with Article 2 (commencing with Section 2025.210) waives
any error or irregularity unless that party promptly serves a written objection
specifying that error or irregularity at least three calendar days prior to the
date for which the deposition is scheduled, on the party seeking to take the deposition
and any other attorney or party on whom the deposition notice was served.”¿
(C.C.P. § 2025.410(a).) If an objection is made three calendar days before the deposition
date the objecting party must make personal service of such objection pursuant to
Code Civ. Proc. § 1011 on the party that gave notice of the deposition. (C.C.P.
§ 2025.410(b).)
“If, after service of a deposition
notice, a party to the action or an officer, director, managing agent, or employee
of a party, or a person designated by an organization that is a party under¿Section
2025.230, 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.”¿ (C.C.P. § 2025.450(a).) “The motion shall set forth the following:
(1) 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. (2) 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.”¿
(C.C.P. § 2025.450(b)(1)-(2).)
“If a deponent fails to answer any
question or to produce any document, electronically stored information,¿or tangible
thing under the deponent's control that is specified in the deposition notice or
a deposition subpoena, the party seeking discovery may move the court for an order
compelling that answer or production.” (C.C.P. § 2025.480(a).) “This motion shall
be made no later than 60 days after the completion of the record of the deposition,
and shall be accompanied by a meet and confer declaration under¿Section 2016.040.”
(C.C.P. § 2025.480(b).)
Analysis
1. Meet and
Confer and Informal Discovery Conference
Plaintiffs argue Defendant’s
motions are improper, claiming the issues raised in the motions were never
subject to an informal discovery conference with the Court and asserting
Defendant failed to meet and confer as required by the Civil Discovery Act
prior to bringing these motions. (Opp. at 3; Ross Decl. at ¶¶2-3.) Plaintiffs’
argument is belied by the Joint Informal Discovery Conference Statement filed
by the parties on November 18, 2022, and signed by Plaintiffs’ counsel. This
joint statement specifically raises the issues of attorney-client and work-product
privileges regarding the depositions of Rodriguez, Barrett, and Kent which are
the subject of Defendant’s instant motions. (Joint Statement at 1-2.) The joint
statement also explicitly states “The parties have met and conferred during
depositions and have the following disputes which would be the subject of
Motions to Compel if they are not resolved.” (Id. at 1.)
Plaintiffs also claim “There is no
mention in the three (3) Motions of any informal discovery conference.” (Opp.
at 3.) This is incorrect. Each motion filed by Defendant states “Prior to
filing this Motion to Compel, the parties engaged in an Informal Discovery
Conference (IDC) with this court on November 28, 2022.” (Motions at 2.)
Accordingly, the Court rejects
Plaintiffs’ assertions that Defendant has failed to meet and confer or
participate in an informal discovery conference as required before bringing
these motions.
2. Deposition
Questions
Defendant’s motions state they
seek a Court order compelling “responses to questions at depositions and
responses to production of documents at deposition.” (Motions at 2.) Plaintiffs
argue Defendant has not identified the questions from the depositions of
Rodriguez, Barrett, and Kent which Defendant is moving to compel answers to.
The Court agrees. Defendant’s motions do not identify any specific questions
asked of Rodriguez, Barret, and Kent at deposition which were not answered.
Without knowing the specific questions Defendant seeks to ask these
individuals, the Court is unable to determine whether such questions call for
privileged information. Accordingly, Defendant’s motions are DENIED to the
extent they seek to compel responses to deposition questions asked of
Rodriguez, Barrett, and Kent.
3. Requests
for Production
The parties’ dispute primarily
concerns Plaintiffs’ responses to requests for production included in the
deposition notices of Rodriguez, Barrett, and Kent, which indicated that
Plaintiffs were withholding documents from production which they claim are
protected from disclosure by the attorney-client and work product privileges.
“A confidential communication between
a lawyer and his or her client is protected from disclosure. [Citation.] But not
all communications with attorneys are subject to that privilege. For example, the
privilege does not shield from disclosure underlying facts that may be set out in
the communication. [Citation.] Likewise, the privilege does not protect “independent
facts related to a communication....” [Citation.] Further, the mere fact nonprivileged
information is relayed to an attorney does not shield the communication. [Citation.]”
(Caldecott v. Superior Court¿(2015) 243 Cal.App.4th 212, 227.)
Attorney-client privilege extends to
“[t]hose ‘who are present to further the interest of the client in the consultation’
include[ing] a spouse, parent, business associate, joint client or any other person
‘who may meet with the client and his attorney in regard to a matter of joint concern.’”
(Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485,
1495-1496 [citation omitted]; Evid. Code, § 952.) “[T]he fundamental purpose behind the privilege is to
safeguard the confidential relationship between clients and their attorneys so
as to promote full and open discussion of the facts and tactics surrounding
individual legal matters.” (Mitchell v. Superior Court (1984) 37 Cal.3d
591, 599.) “[T]he public policy fostered by the privilege seeks to insure the
right of every person to freely and fully confer and confide in one having
knowledge of the law, and skilled in its practice, in order that the former may
have adequate advice and a proper defense.” (Id.)
“The party claiming the privilege has
the burden of establishing the preliminary facts necessary to support its exercise,
i.e., a communication made in the course of an attorney-client relationship.” (Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) To evaluate whether
the party claiming the privilege has made a prima facie showing, the focus is on
the purpose of the relationship between the parties to a communication. (Id.
at 739-740.) “[W]hen the party claiming the privilege shows the dominant
purpose of the relationship between the parties to the communication was one of
attorney-client, the communication is protected by the privilege.” (Clark v.
Superior Court (2011) 196 Cal.App.4th 37, 51.)
“Once that party establishes facts
necessary to support a prima facie claim of privilege, the communication is presumed
to have been made in confidence and the opponent of the claim of privilege has the
burden of proof to establish the communication was not confidential or that the
privilege does not for other reasons apply.” (Costco, supra, 47 Cal.4th at
733.) There are three methods for waiving the attorney-client privilege: (1) disclosing
a privileged communication in a nonconfidential context (Evid. Code, § 912(a));
(2) failing to claim the privilege in a proceeding in which the holder has the legal
standing and opportunity to do so (ibid.); and (3) failing to assert the
privilege in a timely response to an inspection demand (Code Civ. Proc., § 2031.300(a)).
(Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116,
1126.) The scope of statutory and implied waivers alike must be “narrowly defined
and the information required to be disclosed must fit strictly within the confines
of the waiver.
The attorney-client privilege “extends
to communications which are intended to be confidential, if they are made to attorneys,
to family members, business associates, or agents of the party or his attorneys
on matters of joint concern, when disclosure of the communication is reasonably
necessary to further the interest of the litigant . . . . While involvement of an
unnecessary third person in attorney-client communications destroys confidentiality,
involvement of third persons to whom disclosure is reasonably necessary to further
the purpose of the legal consultation preserves confidentiality of communication.”
(OXY Resources California LLC v.
Superior Court (2004) 115 Cal.App.4th 874, 890 [quoting Insurance
Co. of North America v. Superior Court (1980) 108 Cal.App.3d 758, 767].)
“[W]hile a trial court may not order
disclosure of a communication claimed to be privileged to allow a ruling on the
claim of privilege, the holder of the privilege may request an in camera review
of alleged privileged communications to aid the trial court in making the preliminary
fact determination that a communication was made during the course of an attorney-client
relationship or to attempt to prevent disclosure of the communication.” (League
of California Cities v. Superior Court¿(2015) 241 Cal.App.4th 976, 990.)
Similarly, documents privileged under
the attorney work product doctrine are exempt from disclosure. (County of Los
Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 64.) The purpose of the
attorney work product doctrine is to preserve the rights of attorneys in the preparation
of their cases and to prevent attorneys from taking advantage of the industry and
creativity of opposing counsel. (Code Civ. Proc., § 2018.020.) The doctrine, however,
“is not limited to writings created by a lawyer in anticipation of a lawsuit. It
applies as well to writings prepared by an attorney while acting in a nonlitigation
capacity.” (County of Los Angeles v. Superior Court (2000) 82 Cal.App.4th
819, 833.) The attorney work product doctrine absolutely protects from discovery
writings that contain an “attorney's impressions, conclusions, opinions, or legal
research or theories.” (Code Civ. Proc., § 2018.030(a).) General work product (id.,
§ 2018.030(b)), is entitled to conditional or qualified protection. (Rumac, Inc.
v. Bottomley (1983) 143 Cal.App.3d 810, 815.) Whether specific material is protected
work product must be resolved on a case-by-case basis. (Dowden v. Superior Court
(1999) 73 Cal.App.4th 126, 135.)
Under California law there are types
of work product other than “writings that reflect an attorney’s impressions, conclusions,
opinions, or legal research” considered privileged. California case law holds that
“material of a derivative nature, 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
v. Superior Court (1978) 21 Cal. 3d 829, 834.) California law is clear that
appraisals and other expert opinions commissioned by attorneys may be work product,
even when, as with expert engineers’ appraisals and opinions, that work involves
skills quite different from that of an attorney. (Id.)
The person claiming protection under
the attorney work product doctrine bears the burden of proving the preliminary facts
to show the doctrine applies. (Mize v. Atchison, T. & S.F. Ry. Co. (1975)
46 Cal.App.3d 436, 447.) “In camera inspection is the proper procedure to evaluate
the applicability of the [attorney] work product doctrine to specific documents,
and categorize whether each document should be given qualified or absolute protection.”
(Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th
110, 121.)
As the parties
asserting the attorney-client and work product privileges, Plaintiffs bear the
initial burden of showing those privileges apply to the documents withheld from
production. Plaintiffs’ opposition makes no such showing. Plaintiffs’ omnibus
opposition to Defendant’s motions provides general legal authority regarding
these privileges without providing any facts establishing the privileges apply
to the documents at issue. Plaintiffs offer no description of the allegedly
protected documents, their subject, their author, their recipients, or other
pertinent information which would allow the Court to evaluate Plaintiffs’ claim
of privilege or determine whether the privilege was waived through disclosure
to third parties.
The same is true
of Plaintiffs’ responses to the requests for production themselves. Code Civ.
Proc. § 2031.240(c)(1) expressly provides “If an objection is based on a claim
of privilege or a claim that the information sought is protected work product,
the response shall provide sufficient factual information for other parties to
evaluate the merits of that claim, including, if necessary, a privilege log.”
In each response at issue in Defendant’s motions, Plaintiffs simply assert “This
Request seeks attorney-client, work product and mediation privileged
information. Privileged information will not be produced.” This conclusory
assertion of privilege, devoid of any factual basis for asserting such
privilege, is deficient under section 2031.240(c)(1).
Plaintiffs’ only attempt to
justify the assertion of privilege appears in two sentences in a declaration
submitted by Plaintiff Felipe Rodriguez stating “I am the owner of a company
entitled Aeronautical Systems, Inc. (“ASI”), which is not a party to this litigation.
I have had several of my employees at ASI assist me in this litigation in terms
of following my direction to provide information to and receive information
from my attorney Barry A. Ross, as well as Association representatives, vendors
and others regarding the Property.” (Rodriguez Decl. at ¶2.) This generalized
statement falls short of establishing the privilege applies to any specific
document withheld from production. Indeed, Plaintiffs do not even identify how many
documents it has withheld on the basis of any of the privileges asserted in their
responses and have not produced a privilege log showing how each document is
protected by privilege. It is not even clear to the Court which privileges are
being asserted in response to which requests for production, as Plaintiffs
simply served blanket objections to the requests for production as a whole
rather than tailoring objections to each request individually.
However, this does not mean the Court
can deem the privileges waived and order Plaintiffs to produce the documents to
Defendant. When a party timely asserts objections based on privilege “the trial
court may not deem them waived based on any deficiency in the response... Nor may
the court overrule the objections unless it receives sufficient information to decide
whether they have merit.” (Catalina Island Yacht Club v. Superior Court (2015)
242 Cal.App.4th 1116, 1129.) As the Court in Catalina Island explained:
[I]f a party
responding to an inspection demand timely serves a response asserting an objection
based on the attorney-client privilege or work product doctrine, the trial court
lacks authority to order the objection waived even if the responding party fails
to serve a privilege log, serves an untimely privilege log, or serves a privilege
log that fails either to adequately identify the documents to which the objection
purportedly applies or provide sufficient factual information for the propounding
party to evaluate the objection. [Citations.]
The propounding
party's remedy when it deems “[a]n objection in the response is without merit or
too general” is to “move for an order compelling further response.” (§ 2031.310,
subd. (a)(3); see Lockyer, supra, 122 Cal.App.4th at p. 1075; Best Products,
supra, 119 Cal.App.4th at p. 1189.) If the response and any privilege log provide
sufficient information to permit the court to determine whether the asserted privilege
protects specific documents from disclosure, the court may rule on the merits of
the objection by either sustaining it or overruling it as to each document. (Kaiser
Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217, 1228–1229
[78 Cal. Rptr. 2d 543] (Kaiser Foundation).)
If the response
and any privilege log fail to provide sufficient information to allow the trial
court to rule on the merits, the court may order the responding party to provide
a further response by serving a privilege log or, if one already has been served,
a supplemental privilege log that adequately identifies each document the responding
party claims is privileged and the factual basis for the privilege claim. (Lockyer,
supra, 122 Cal.App.4th at p. 1075; Kaiser Foundation, supra, 66 Cal.App.4th
at pp. 1228–1229.) In ordering a further response, the court also may impose monetary
sanctions on the responding party if that party lacked substantial justification
for providing its deficient response or privilege log. (§ 2031.310, subd. (h).)
If the responding
party thereafter fails to adequately comply with the court's order and provide the
information necessary for the court to rule on the privilege objections, the propounding
party may bring another motion seeking a further response or a motion for sanctions.
At that stage, the sanctions available include evidence, issue, and even terminating
sanctions, in addition to further monetary sanctions. (§ 2031.310, subd. (i).) But
the court may not impose a waiver of the attorney-client privilege or work product
doctrine as a sanction for failing to provide an adequate response to an inspection
demand or an adequate privilege log.
(Id. at 1126-1128.)
Having found Plaintiffs’ responses
and opposition to be insufficient to allow the Court to rule on the merits of
their assertion of various privileges, the Court GRANTS Defendant’s motions to
compel and orders Plaintiffs to provide privilege logs for each set of requests
for production identifying every document Plaintiffs have withheld from
production on the basis of any privilege, including the attorney-client, work
product, mediation, and trade secret privileges.
The purpose of a privilege log “is to provide a specific factual description of
documents in aid of substantiating a claim of privilege in connection with a
request for document production.” (Hernandez v. Superior Court
(2003) 112 Cal.App.4th 285, 292.) “A privilege log must identify with particularity
each document the responding party claims is protected from disclosure by a privilege
and provide sufficient factual information for the propounding party and court to
evaluate whether the claim has merit.” (Catalina Island, supra, 242 Cal.App.4th
at 1130.) Accordingly, Plaintiffs’ privilege logs must “provide the identity and
capacity of all individuals who authored, sent, or received each allegedly privileged
document, the document's date, a brief description of the document and its contents
or subject matter sufficient to determine whether the privilege applies, and the
precise privilege or protection asserted.” (Ibid.) The privilege logs
must also identify which specific request the document is responsive to. If
Plaintiffs contend any documents are protected from discovery because they
implicate the privacy rights of third parties, Plaintiffs’ privilege log must
contain a factual description of the privacy rights at interest to allow the
Court to rule on the merits of their objection.
In addition to the privilege logs,
Plaintiffs must also provide supplemental objections to the requests for
production to provide individual responses to each request specifying what
objections and/or privileges are being asserted to each request. If Plaintiffs
have no further responsive documents to a particular request, they must state
so expressly.
4. Sanctions
As the Court noted in Catalina
Island, monetary sanctions are appropriate where a responding party lacked
substantial justification in providing a response which was insufficient to
allow the Court to rule on the merits of Plaintiffs objections. Monetary
sanctions are also appropriate where a party opposes a motion to compel without
substantial justification. (Code Civ. Proc. § 2031.310(h).) The Court finds
Plaintiffs’ deficient responses were made without substantial justification as
Plaintiffs made no effort to comply with the requirements of Code Civ. Proc. § 2031.240(c)(1) by providing factual information
necessary to evaluate the merit of Plaintiffs’ assertion of privilege. The same
is true of Plaintiffs’ opposition to Defendant’s motions, which also failed to
provide the Court with any factual basis upon which it could rule on the merits
of Plaintiffs’ objections or claims of privilege.
Defendant asks
the Court to impose monetary sanctions in the amount of $5,000, $5,750, and $5,000
in connection with its motions, totaling $15,750. However, the Court notes
Defendant reached this number on the assumption that it would spend $12,000 on
court reporters and videographers for the continued depositions of Rodriguez, Barrett, and Kent. As the Court has denied
Defendant’s motion with respect to Defendant’s request to compel further responses
to deposition questions, Defendant will not incur any such costs associated
with further depositions of those individuals. This leaves $3,750 in cumulative
fees and costs incurred by Defendant to bring its motions. The Court therefore
GRANTS Defendant’s request for monetary sanctions in the amount of $3,750.