Judge Lynne M. Hobbs, Case Number: 22STCV20823, Date: 2023-09-28 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV20823, Date: 2023-09-28 Tentative Ruling

Case Number: 22STCV20823 Hearing Date: January 22, 2024 Dept: 30

LESLIE JEAN KANAWAH vs THOMAS JEFFERY PAUL, et al.

TENTATIVE

Defendant’s motion to quash the subpoena to is DENIED. Defendant’s request for sanctions is DENIED.

Legal Standard

When a subpoena has been issued requiring the attendance of a witness or the production of documents, electronically stored information, or other things before a court or at the taking of a deposition, the court, upon motion “reasonably made” by the party, the witness, or any consumer whose personal records are sought, or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court may specify. (See Code Civ. Proc. § 1987.1; Southern Pac. Co. v. Superior Court (1940) 15 Cal.2d 206.)

The court can make an order quashing or modifying a subpoena as necessary to protect a person from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Generally, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.)

Discussion

Defendant Paul moves to quash or modify Defendant Exhibit Works’ deposition subpoena to Defendant Paul’s insurance carrier, on the grounds that records are protected under the right to privacy, privileged under the Insurance Code, and violate the attorney-client privilege and the attorney work product doctrine.

Defendant issued a deposition subpoena to Defendant’s insurance carrier, Alliance, seeking:

1. Any and all signed settlement agreements and releases with Plaintiff for the accident with your insured, on November 9, 2021.

2. Any and all canceled checks for any payments made by you whether it be for property damages or bodily injury claims to Plaintiff for the accident with your insured, on November 9, 2021.

3. Any and all statements from Plaintiff provided to you as a result of the accident.

(Wang Decl., Exh. A, attachment 3.)

Attorney Client Privilege/Work Product Privilege

Defendant argues that any accident reports or statements provided by Defendant to his insurers are absolutely protected by the attorney- client privilege if the insurer is obligated to defend the insured. (Travelers Insurance Co. v. Superior Court (1983) 143 Cal.App.3d 436, 448-449.)

The attorney-client privilege is contained in Evidence Code section 950 et seq., and in general allows the client “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer...” (Evid. Code, § 954.) The attorney-client privilege covers all forms of communication, including the transmission of specific documents (Mitchell v. Sup. Ct. (1984) 37 Cal.3d 591, 600), so a party should not ordinarily formulate “a discovery request seeking all documents transmitted to responding party's attorney.” At the same time, documents prepared independently by a party, including witness statements, do not become privileged communications or work product merely because they are turned over to counsel. (See Nacht & Lewis Architects, Inc. v. Sup. Ct. (1996) 47 Cal.App.4th 214.)

“The work product rule in California creates for the attorney a qualified privilege against discovery of general work product and an absolute privilege against disclosure of writings containing the attorney's impressions, conclusions, opinions or legal theories.” (Health Networks v. Sup. Ct. (1997) 59 Cal.App.4th 110, 119-120.)

Request No. 3 seeks, from Defendant Paul’s insurance carrier, any and all statements from Plaintiff as a result of the accident. Alliance is not Plaintiff’s insurance carrier, and as such, the attorney-client privilege and work product doctrine do not apply to Request No. 3.

As to Requests Nos. 1-2, Defendant Paul has not set forth a factual basis to show they would violate the attorney-client privilege or the work product doctrine.

“In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege.” (Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.) “The party asserting the privilege need only present facts which ‘support a prima facie claim of privilege.” (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 894.) “After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.” (Venture Law Group, supra, 118 Cal.App.4th at p.102.) The court may require the party who opposes the discovery to prepare and serve a “privilege log,” the purpose of which is to make a record of the documents withheld and the privilege claim asserted as to each. (See Code Civ. Proc., § 2031.240, subd. (c)(1); Best Products, Inc. v. Sup. Ct. (2004) 119 Cal.App.4th 1181, 1188-1189; Wellpoint, supra, 59 Cal.App.4th at 130.) “The information in the privilege log must

be sufficiently specific to allow a determination of whether each withheld document is or is not (in) fact privileged.” (Wellpoint, supra, 59 Cal.App.4th at 130.)

Assuming without deciding Request Nos. 1-2 violate the attorney-client privilege, no privilege log has been provided, and no factual basis has been provided, in order for the Court to determine whether the requests would violate the attorney client privilege or work product doctrine. Thus, Defendant Paul has not met his burden.

Relevance

“any party may obtain discovery regarding any matters, 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.)¿ “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.”¿ (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)¿ However, discovery should not be denied if the information sought has any relevance to the subject matter.¿Thus, while relevancy is a possible ground for an objection, it is difficult to adequately justify it. (See generally Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 217.) “These rules are applied liberally in favor of discovery, and (contrary to popular belief),¿fishing¿expeditions¿are¿permissible in some cases.”¿ (Gonzalez v. Superior Court¿(1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].)¿

Here, the Court agrees that the information sought is relevant. The settlement agreement between Plaintiff and Paul, if in existence, as well as the dollar amount paid pursuant to a settlement agreement will be relevant in assessing damages and potential satisfaction of Plaintiff’s claims, including preventing potential instances of double recovery or any offset this party may be entitled to at trial. The Court notes that Plaintiff alleges Paul was in the course and scope of employment with Exhibit Works. Further, Request No. 3 is limited to statements provided by Plaintiff to Alliance regarding the incident. Statements from a plaintiff to a defendant’s insurance company regarding an accident that is the subject of a lawsuit constitute relevant information.

CCP section 2017.210

Defendant Paul also argues the Subpoena should be quashed because it impermissibly seeks the production of documents not permitted within the limits set forth in Code of Civil Procedure section 2017.210. He argues discovery is strictly limited to the existence and contents of liability insurance coverage and may include the identity of the carrier, the nature of the insurance coverage, and the limits of coverage. Discovery as to whether or not there is a dispute over insurance coverage for the claim involved is also permitted, “but not as to the nature and substance of that dispute.” Defendant contends, under the statutory construction doctrine of expression unius est exclusion alterius, the expression of certain things in a statue necessarily involves exclusion of other things not expressed in the statute’s language. (United Farm Workers of Amer. v. Agricultural Labor Relations Bd. (1995)

41 Cal.App.4th 303, 316.) Defendant argues the requesting party is only entitled to the information permitted by the statute and nothing more.

“A party may obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. This includes the identity of the carrier and the nature and limits of the coverage. A party may also obtain discovery as to whether that insurance carrier is disputing the agreement's coverage of the claim involved in the action, but not as to the nature and substance of that dispute.” (Code Civ. Proc., § 2017.210.)

Defendant Paul’s claim that the expression of certain things in a statue necessarily involves exclusion of other things not expressed in the statute’s language, even if true here, is not convincing because request nos. 1-2 relating to the settlement agreement appear to be the type of discovery that is allowed under the statute. Further, Defendant Paul has not provided any authority in support of its argument that CCP section 2017.210 only allows the specific information provided under the statute. Further, the phrases “a party may obtain” “this includes” and “a party may also obtain” suggest that the type of discovery is not limited to what is listed in the statute.

Privacy

The right of privacy in the California Constitution (art. I, § 1), “protects the individual's reasonable expectation of privacy against a serious invasion.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250 [italics in original]; See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [“In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.”].)

There is a clear privacy interest in confidential settlement agreements. (Hinshaw, Winkler, Draa, Marsh & Still¿(1996) 51 Cal.App.4th 233, 242¿disapproved of on other grounds by¿Williams v. Superior Court¿(2017) 3 Cal.5th 531 [“confidential¿settlement¿agreements¿are entitled to privacy protection.”].) “[T]he right of privacy extends to one’s confidential financial affairs as well as to the details of one’s personal life.” (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656.)

In establishing a privacy interest “the burden [is] on the party asserting a privacy interest to¿establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as¿Hill¿requires.” (Williams, supra, 3 Cal.5th 531, 557.) “Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.” (Ibid.)

Here, there is a clear privacy interest. However, the extent of the privacy interest is unclear. Further, Defendant offers Paul’s counsel an opportunity to redact certain financial information, social security numbers and medical records, which the Court finds will adequately protect Defendant Paul’s privacy interests. Moreover, Defendant Exhibit Works has provided a countervailing interest disclosure would serve. Defendant Exhibit Works argues that the settlement agreement between Plaintiff and Paul, if in existence, as well as the dollar amount paid pursuant to a settlement agreement will be relevant in assessing damages and potential satisfaction of Plaintiff’s claims, including preventing potential instances of double recovery or any offset this party may be entitled to at trial. The court agrees as the complaint alleges Paul was in the course and scope of employment with Exhibit Works. Thus, this information is directly relevant to Exhibit Works’ defenses in this matter.

Insurance Code

Lastly, Defendant relies on Insurance Code § 791.13, which provides, in part, that an insurance institution shall not disclose any personal or privileged information about an individual collected or received in connection with an insurance transaction unless the disclosure is with the written authorization of the individual or in response to a facially valid administrative or judicial order, including a search warrant or subpoena. (Ins. Code, § 791.13(a), (h); see also Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 321 [discovery of insurance claim files may be conditioned on obtaining the written consent of the persons to whom the files relate].)

However, “[t]hat act is part of this state’s regulation of the business of insurance. It was enacted ‘to establish standards for the collection, use and disclosure of information gathered in connection with insurance transactions by insurance institutions, agents or insurance-support organizations. . . The act applies to, and restricts, information gathering practices and disclosures of information by insurers. It does not purport to create a privilege against discovery by an insured party who is a party to a lawsuit. Moreover, the provisions of the insurance act yield where disclosure is ‘otherwise permitted or required by law’ or is ‘in response to a facially valid administrative or judicial order, including a search warrant or subpoena.’ (Ins. Code, § 791.13(g), (h).)” (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 741.)

Therefore, the discoverability of information contained in Defendant’s insurance records is subject to the same balancing of privacy rights versus broad discovery rights.

Sanctions

Defendant Paul’s request for sanctions is denied as the motion was not unsuccessfully opposed.