Judge Lee W. Tsao, Case Number: 21STCV03216, Date: 2023-08-09 Tentative Ruling

Judge: Lee W. Tsao, Case: 21STCV03216, Date: 2023-08-09 Tentative Ruling

Case Number: 21STCV03216 Hearing Date: September 27, 2023 Dept: C

Macedo v. Portillo

CASE NO.: 21STCV03216

HEARING: 9/27/23 @ 9:30 AM

Plaintiff Omar Macedo’s Motion for Order that the Evangelista Declaration Failed to Sustain its Burden is DENIED.

Plaintiff to give NOTICE.

Plaintiff Omar Macedo moves for an order finding that the Evangelista Declaration failed to sustain Defendant’s burden of showing the Evangelista Report was covered by the attorney-client privilege.

Background

This personal injury (motor vehicle) action was filed on January 27, 2021. Plaintiff moves to compel Defendants Charter Communications, Inc.’s (Defendant) further responses to Requests for Production.

Evidentiary Objections

Plaintiff’s objections Nos. 1-6 are overruled.

Legal Standard

With certain exceptions not applicable here, a client “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.” (Evidence Code, § 954.) “The party claiming privilege carries the burden of showing that the evidence which it seeks to suppress is within the terms of the statute.” (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729.)

Discussion

Plaintiff contends that the Evangelista Declaration (the Declaration) fails to sustain Defendant’s burden of showing that a statement made by Defendant Portillo to Evangelista was covered by the attorney-client privilege. The statement was contained in a report written by Evangelista and delivered to an attorney. “To make the communication privileged the dominant purpose must be for transmittal to an attorney ‘in the course of professional employment’.” The Declaration provides that Evangelista prepared a report as one of his job duties, he is Portillo’s direct supervisor, the report was created to assist Defendant’s counsel, and the report was labelled as confidential. (Evangelista Decl., ¶¶3, 5, and 8.) In addition, the Declaration provides that “Mr. Portillo’s oral and written statements to [Mr. Evangalista], related to the Subject Incident, were a part of [Mr. Portillo’s] job duties as Field Technician IV for Charter. In addition, as [Mr. Portillo’s] direct supervisor, [Mr. Evangelista] directed Mr. Portillo to provide [Mr. Evangelista] with the oral and written statement related to the Subject Incident, which were incorporated into [Mr. Evangelista’s] Supervisor Investigation Report.” (Evangelista Decl., ¶5.) The court finds that Defendant has met its burden of showing that Evangelista obtained Portillo’s statement with the intention of transmitting it to an attorney to defend against potential claims, and this was done in the course of their employment. Thus, the statement is covered by the attorney-client privilege. Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424.

Pointing to the facts in D.I. Chadbourne, Plaintiff argues that Portillo’s statement is not privileged. In D.I. Chadbourne, the issue was whether a written statement obtained by a representative of an insurance company and delivered to its attorney was privileged as a matter of law. The statement was made by an independent witness who performed work on the sidewalk where the injury occurred. Under the facts of the case, the court determined that the statement by the non-party witness was not privileged. Here, unlike D.I. Chadbourne, the statement at issue was made by a party to the lawsuit, not an independent witness. Moreover, Potillo’s job duties required him to provide a statement to his supervisor, Evangelista, who then delivered his report to an attorney. Under these circumstances, the statement made by Portillo to Evengelista is privileged.

Accordingly, Plaintiff’s Motion for Order that the Evangelista Declaration Failed to Sustain its Burden is DENIED.