Judge: Joel L. Lofton, Case: 21BBCV00436, Date: 2022-12-08 Tentative Ruling

Case Number: 21BBCV00436    Hearing Date: December 8, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     December 8, 2022                               TRIAL DATE:  No date set.

CASE:                         RHONDA STRAUSS and MARK STRAUSS, v. TEMPLAR TITAN, INC., a corporation doing business in California and DOES 1 through 100. 

CASE NO.:                 21BBCV00436

MOTION TO COMPEL FURTHER

MOVING PARTY:              Plaintiffs Rhonda Strauss and Mark Strauss

RESPONDING PARTY:      Defendant Sedgwick Claims Management Services, Inc. (“Sedgwick”)

SERVICE:                              Filed October 11, 2022

OPPOSITION:                       Filed November 23, 2022

REPLY:                                   Filed November 28, 2022

RELIEF REQUESTED

            Plaintiffs move for an order compelling Sedgwick to produce further responses to their requests for production of documents.

BACKGROUND

 This case arises from Plaintiffs Rhonda Strauss and Mark Strauss’s (“Plaintiffs”) claim that Defendant Templar Titan, Inc., unlawfully placed tracking devices on Plaintiffs’ vehicle. Plaintiffs filed this complaint on May 5, 2021, alleging one cause of action for invasion of privacy.

TENTATIVE RULING

            Plaintiffs’ motion to compel further responses is DENIED.

            Sedgwick is ordered to produce a privilege log.

LEGAL STANDARD

On receipt of a response to discovery requests, the party requesting may move for an order compelling further responses for interrogatories (Code Civ. Proc. 2030.300), requests for admission (Cod. Civ. Proc. section 2033.290), and request for production (Code Civ. Proc. section 2031.310). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.” (Code Civ. Proc. section 2033.290, subd. (c).)

DISCUSSION

             On August 5, 2022, Plaintiffs served requests for the production of documents on Sedgwick. (Stearn Decl. ¶ 5.) On September 6, 2022, Sedgwick objected to the discovery requests. (Id. ¶ 6.)

            RFP No. 1: Any and all documents exchanged between you and the Von's Companies, Incorporated, of and concerning Rhonda Strauss, between October 12, 2016 and August 5, 2022.

            RFP No. 2: Any and all documents exchanged between you and the Von's Companies, Incorporated, of and concerning the matter of Rhonda Strauss v. The Von's Companies, Case number 18STCV00042, between October 12, 2016 and August 5, 2022.

            Sedgwick argues that the requested documents cover large swathes of communications covered by the attorney-client privilege. Sedgwick also provides that a privilege log itself would violate the privilege.

            Code of Civil Procedure section 2031.240, subdivision (c)(1) 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.” “Generally, ‘the privilege-claimant “has the initial burden of proving the preliminary facts to show the privilege applies.” ’ ” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.Ap.4^th 566, 596.) Further, the Court in Riddell, Inc. v. Superior Court (2017) 14 Cal.App.5th 755, 772, stated that a party could not object to an order compelling a privilege log by claiming creating a privilege log would be too burdensome.

            In reply, Plaintiffs argue that the documents sought are discoverable because Evidence Code section 956, subd. (a), provides that “[t]here is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.”

            “ ‘To invoke the Evidence Code section 956 exception to the attorney-client privilege, the proponent must make a prima facie showing that the services of the lawyer “were sought or obtained” to enable or to aid anyone to commit or plan to commit a crime or fraud. [Citation.]’ ” (State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 643.) However, at this stage, there is no indication that the crime-fraud exception to the attorney-client privilege applies. Plaintiffs argue that Sedgwick might possess documents that demonstrate a crime was committed against Plaintiff without addressing the requirements of applying the crime-fraud exception to the present case.

            Here, Plaintiffs have failed to make a prime facie showing that the crime-fraud exception applies. Further, Sedgwick has not met its burden of proving preliminary facts to show that the attorney-client privilege applies to prohibit any and all documents from being turned over in discovery.

            Sedgwick is ordered to produce a privilege log detailing the extent it claims the attorney-client privilege applies to protect documents from disclosure.

CONCLUSION

            Plaintiffs’ motion to compel further responses is denied.

            Sedgwick is ordered to produce a privilege log.

            Moving party to give notice.

Dated:   December 8, 2022                             ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court