Judge Kerry Bensinger, Case 20STCV19525 2023-03-28 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 to Categories Nos. 1-5. The five Categories seek Defendant’s PMK for Defendant’s video surveillance system on the day of the incident. (Agarwal Decl., Exhs. A-B.)

Plaintiff’s motion also 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., Exhs. 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 also requests sanctions.

As to Plaintiff’s Request for Production of Documents, Nos. 12-17, Defendant provided a privilege log in support of its assertion of the attorney-client and attorney work-product privileges. However, the Court could not tell the “dominant purpose” of the privilege log and found that Defendant had not provided sufficient information to establish that the incident logs were to be kept in confidence and transmitted to counsel for review. The Court continued the hearing 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 ruling, Plaintiff’s Request for Sanctions was also continued.

On March 21, 2023, Defendant filed a supplemental declaration stating that redacted incident logs were sent to Plaintiff’s counsel.

On March 22, 2023, Plaintiff filed supplemental reply papers, acknowledging receipt of the redacted incident logs and noting that the document production was merely a list of prior incidents; Defendant did not provide photos, videos, reports, or any other documents related to the prior incidents.

“[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].)

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).)

The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).)

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.

Sanctions Against Counsel: The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party’s misuse of the discovery process, monetary sanctions against the party’s attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney’s actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney’s advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿

Upon review of the declaration, Defendant failed to furnish sufficient information to establish that the incident logs were to be kept in confidence and transmitted to counsel for review. Instead, counsel for Defendant declares that after reviewing the injury log and discussing with Plaintiff’s counsel, he sent Plaintiff’s counsel a redacted injury log. (Ulwelling Decl., ¶¶ 5-6.) The redacted injury log contains the following information: (1) the “As of Date” of the Injury Log; (2) the full name of each claimant; (3) the Date of Loss for each incident; (4) an Event Description which provided the location of the incident inside the store and how the incident occurred. (Id., at ¶¶ 7-8, Exh. A.) At no point does Defendant address its initial assertion of attorney-client or attorney work-product privilege. Nor do the redacted incident logs themselves make clear that they were to be kept in confidence.

Further, Plaintiff contends in his supplemental reply that Defendant did not provide other documents in response to the Request for Production of Documents, Nos. 12-17. Specifically, Defendant did not provide photos, videos, reports, or any documents of the prior incidents along with the redacted incident logs. As the Court noted in its February 14, 2023 ruling, request Nos. 12-17 are “relevant and the information discoverable, absent a showing of privilege or some other basis to resist production.” Defendant fails to substantiate its claim of privilege or to identify another basis to resist production. Plaintiff is entitled to an order compelling Defendant to provide responsive documents requests Nos. 12-17.

Moreover, by failing to address its assertion of privilege or produce responsive documents to requests Nos. 12-17, Defendant fails to present substantial justification for its opposition. Imposition of sanctions is mandatory.

Plaintiff requests monetary sanctions against Defendant and their counsel of record in the amount of $4,460. Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is proper unless counsel shows that he or she did not counsel the discovery abuse. (Hennings, 58 Cal.App.5th at p. 81.) Counsel for Defendant does not meet their burden. Accordingly, the Court imposes sanctions against Defendant and their counsel of record in the reduced amount of $2,560 representing five hours at Plaintiff’s counsel’s hourly rate of $500 and filing fees of $60.

Plaintiff’s motion to compel Defendant to produce responsive documents to Request for Production of Documents, Nos. 12-17 is GRANTED.

Defendant is ordered to produce all non-privileged documents, including but not limited to photographs, videos, statements, and reports of prior incidents within thirty (30) days of the date of notice of this order.

The Court orders Defendant Smart & Final Stores, LLC and their counsel of record, jointly and severally, to pay monetary sanctions to Plaintiff, by and through Plaintiff’s counsel, in the amount of $2,560 to Plaintiff within 30 days of the date of notice of this order.

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