Judge Lee W. Tsao, Case Number: 23NWCV00386, Date: 2024-01-25 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00386, Date: 2024-01-25 Tentative Ruling

Case Number: 23NWCV00386 Hearing Date: January 25, 2024 Dept: C

NUNEZ-HERNANDEZ v. RALPHS GROCERY COMPANY

CASE NO.: 23NWCV00386

HEARING: 01/25/24

Plaintiff’s Motion to Compel Further Responses to Requests for Production (set one) is DENIED.

Opposing Party to give notice.

This slip and fall action was filed by Plaintiff JUANA NUNEZ-HERNANDEZ (“Plaintiff”) against Defendant RALPHS GROCERY COMPANY (“Ralphs” or “Defendant”) on February 3, 2023.

Plaintiff’s Complaint asserts the following causes of action: (1) Negligence; and (2) Premises Liability.

CCP § 2031.310 allows a party to file a motion compelling further answers to document requests if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. The motion shall be accompanied with a meet and confer declaration. (CCP § 2031.310(b).)

Plaintiff moves for an order compelling further responses to Requests for Production (set one)—specifically, RPD No. 5, which seeks: “Any and all INCIDENT reports which states any and all facts on how the INCIDENT occurred.”

In Opposition, Defendant objects and argues that the information is protected by the attorney-client and work product privileges including documents made in anticipation of litigation.

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. (League of California Cities v. Superior Court (2015) 241 Cal.App.4^th 976, 988-89) If the party claiming the privilege presents facts supporting 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. (Id. at 989.) 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.)

When 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. (Id.) 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. (Id.)

Here, in support of the privilege, Defendant submits a declaration from Defendant’s Counsel, Justene Adamec, who declares “Ralphs is self-insured and refers all claims to a third-party administrator. The administrator collects certain information and passes it on to counsel in the event a matter cannot be resolved before a lawsuit is filed.” (Adamec Decl. ¶ 2.) “The incident report itself is marked confidential. The questions on the form are items used by the attorneys and evidence work product. Thus, it becomes the beginning of the conversation between the attorney and client.” (Adamec Decl. ¶ 4.) While more specificity is desirable, the court determines that Defendant has made a prima facie claim of privilege. The court agrees with Defendant that its claim of privilege is sufficiently analogous to the one made in Payless Drug Stores, Inc. v. Superior Court (1976) 54 Cal.App.3d 988 to establish the dominant purpose. Like the accident report in Payless, it is evident that the incident report at issue here was required by Defendant in cases where accidents were claimed, the incident report was intended to be confidential, and the report was transmitted to counsel for use in defending litigation arising out of the accident. (Id. at 991.) The burden then shifts to Plaintiff to establish the communication was not confidential or that the privilege does not for other reasons apply. Plaintiff has not done so.

Accordingly, Defendant’s claim of privilege is SUSTAINED and Plaintiff’s Motion to Compel Further Responses to Requests for Production (set one) is DENIED.