Judge Holly J. Fujie, Case 19STCP00482 2023-02-02 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTIES: (1) Defendant/Cross-Complainant City of Pomona (the “City” or “Pomona”); (2) Defendant/Cross-Complainant Regency Outdoor Advertising, Inc. (“Regency”)

This action concerns billboard structures (the “Billboards”) located in Pomona that are operated by Regency. Plaintiffs’ currently operative sixth amended complaint (the “6AC”) alleges: (1) declaratory relief, injunctive relief and damages for deprivation of civil rights (First Amendment). On April 29, 2019, the City filed a cross-complaint (the “City XC”) against Regency alleging: (1) implied equitable indemnity; (2) contribution; (3) declaratory relief; (4) express contractual indemnity; and (5) breach of contract. On November 17, 2022, Regency filed a cross-complaint (the “Regency XC”) alleging two causes of action for declaratory relief.

The City filed a motion to compel further responses to Requests for Production (“RFPs”) Set One and Set Two (the “City Motion”). Regency filed a motion to compel further responses to its RFPs Set Two (the “Regency Motion”).

Under California Code of Civil Procedure (“CCP”) section 2017.010, unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, 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.) For discovery purposes, information is regarded as relevant “if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.” (City of Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272, 288.)

The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) a statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities; (2) a representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item; or (3) an objection to the particular demand for inspection, copying, testing, or sampling. (CCP § 2031.210, subd. (a).)

A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, 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.)

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. (CCP § 2031.230.) This statement shall 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. (Id.) The statement shall 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. (Id.)

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; and (2) set forth clearly the extent of, and the specific ground for, the objection. (CCP § 2031.240, subd. (b).) If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. (Id.)

A motion to compel further responses to a demand for inspection or production of documents may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections. (CCP § 2031.310, subd. (c).) A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See CCP § 2031.310 subd. (b)(1); Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 234-35.) To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224.)

If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Superior Court (2002) 95 Cal. App.4th 92, 98.) The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (CCP § 2017.020, subd. (a).) To support an objection to a request for production of documents, the objecting party must establish the validity of its objections with supporting facts in order to meet its burden. (Southern Pac. Co. v. Superior Court (1969) 3 Cal.App.3d 195, 198.) Facts are provided to the court via declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

The City served its first set of RFPs on January 13, 2022. (Declaration of Scott Ditfurth (“Ditfurth Decl.”) ¶ 2.) The RFPs concern documents related to the Development Agreement entered into by the City and Regency that underlies the claims in the 6AC, the City XC, and the Regency XC. (See Ditfurth Decl., Exhibits A-B.) The City served its second set of RFPs on April 6, 2022. (Ditfurth Decl. ¶ 6.) Although Regency served responses that include a statement of compliance and has produced some documents, Regency failed to produce all relevant documents. (See Ditfurth Decl. ¶¶ 7-8.)

Regency contends that it has acted reasonably given the overbreadth of the City’s requests and its difficulties in locating responsive documents. The RFPs propounded by the City Requests concern a ten-year time period. (Declaration of David C. Bolstad (“Bolstad Decl.”) ¶ 2.) Ongoing litigation between Regency’s owners added to the difficulty of locating responsive documents. (Id.) Regency’s documents are archived and most are not electronically stored. (Id.) Regency recently located offices and has limited staff to sort through its files. (Id.) Despite these difficulties, Regency has been making efforts to retrieve additional responsive documents. (See Bolstad Decl. ¶ 3.) Regency provides that it has determined that it does not have and will not be able to obtain certain responsive documents and that it will produce the additional documents it has been able to locate. (Bolstad Decl. ¶ 3.)

Although Regency indicates that it has located responsive documents that it intends to produce, there is no evidence that it has in fact produced such documents. The Court therefore GRANTS the City Motion. Regency is ordered to produce supplemental documents and provide verified amended responses to the document requests specifying the responses for which it has been unable to locate documents within 14 days of this order.

Regency propounded its second set of RFPs on May 31, 2022. (Bolstad Decl., ¶ 2, Exhibit A.) On July 19, 2022, the City provided substantive responses to all the RFPs aside from RFP number 1, which seeks documents, including invoices, related to litigation expenses incurred in the City’s defense against Plaintiffs’ claims. (See Bolstad Decl. ¶ 3, Exhibit B.) The City objected to RFP number 1 on the grounds of attorney-client privilege and work product doctrine. (Id.)

The attorney-client privilege accords a client a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between client and lawyer. (Evid. Code § 954.) 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, 734. A confidential communication between client and lawyer is information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship. (Evid. Code § 952.)

While billing invoices are generally not “made for the purpose of legal representation,” the information contained within certain invoices may be within the scope of the privilege. (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 297 (“Bd. of Supervisors”).) When a legal matter remains pending and active, the privilege encompasses everything in an invoice, including the amount of aggregate fees. (Id.) This is because, even though the amount of money paid for legal services is generally not privileged, an invoice that shows a sudden uptick in spending might very well reveal much of a government agency's investigative efforts and trial strategy. (Id.)

Regency contends that it is entitled to billing invoices because the documents are relevant to the City’s alleged damages, while the City argues that these documents are protected by the attorney-client privilege because they concern billing information in a currently-pending action. Regency distinguishes its document request from Bd. of Supervisors by arguing that Regency and the City are not adverse parties with respect to Plaintiffs’ claims and that unlike in Bd. of Supervisors, Regency’s request concerns an element of damages alleged in the City XC.

In its reply brief (the “Regency Reply”), Regency raises additional arguments regarding the evidentiary burden to prove attorney’s fees as damages as opposed to attorney’s fees as costs and cites to Mai v. HKT Cal, Inc. (2021) 66 Cal.App.5th 504 (“Mai”) to support its position. It does not appear that Regency raised Mai or developed this argument with the City before filing the Regency Motion. Points raised for the first time in a reply brief are ordinarily deemed waived. (See, e.g., Lester v. Lennane (2000) 84 Cal.App.4th 536, 595.) Furthermore, Mai does not concern billing records in a currently pending action or discuss the Bd. of Supervisors ruling. Despite Regency’s attempt to distinguish Bd. of Supervisors, the California Supreme Court’s determination in that case that invoices reflecting work in active and ongoing litigation are privileged was not confined to the context of public records requests. (See Bd. of Supervisors, supra, 2 Cal.5th at 300.) The Court therefore DENIES the Regency Motion.[1]

The City seeks monetary sanctions in the amount of $3,501 in connection to the City Motion. (Ditfurth Decl. ¶ 17.) This amount represents: (1) 7 hours of associate time at a rate of $279 per hour and one hour of partner time at a rate of $330 per hour preparing the City Motion; and (2) an anticipated 4 hours preparing reply papers and attending the hearing at an unspecified hourly rate. (See id.) The Court exercises its discretion and GRANTS the City Motion’s request for monetary sanctions in the reasonable amount of $888, which represents two hours of associate time at a rate of $279 per hour and one hour of partner time at a rate of $330 per hour spent preparing the City Motion. (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.) The City’s request for sanctions for its time spent opposing the Regency Demurrer is DENIED.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] The Court additionally declines to rule on the argument raised in the Regency Reply that the Court should sever the City’s claims and try them separately.