Judge: Mark A. Young, Case: 19STCV43863, Date: 2023-01-30 Tentative Ruling
Case Number: 19STCV43863 Hearing Date: January 30, 2023 Dept: M
CASE NAME: Wabi Venice
LLC, et al. v. The Abbot Kinney Grill LLC, et al.
CASE NO.: 19STCV43863
MOTION: Motion
to Continue Trial
Motion to Compel Further
HEARING DATE: 1/30/2023
MOTION
TO CONTINUE THE TRIAL
Pursuant to California Rules of Court, rule 3.1332(a), “To ensure the
prompt disposition of civil cases, the dates assigned for a trial are
firm. All parties and their counsel must
regard the date set for trial as certain.” Under Rule 3.1332(b), “A party
seeking a continuance of the date set for trial, whether contested or
uncontested or stipulated to by the parties, must make the request for a
continuance by a noticed motion or an ex parte application under the rules in
chapter 4 of this division, with supporting declarations. The party must make
the motion or application as soon as reasonably practical once the necessity
for the continuance is discovered.”
Under California Rules of Court, rule 3.1332(c), “[a]lthough continuances
of trials are disfavored, each request for a continuance must be considered on
its own merits. The court may grant a continuance only on an affirmative
showing of good cause requiring the continuance. Circumstances that may include good cause
include:
(1) The
unavailability of an essential lay or expert witness because of death, illness,
or other excusable circumstances;
(2) The
unavailability of a party because of death, illness, or other excusable
circumstances;
(3) The
unavailability of trial counsel because of death, illness, or other excusable
circumstances;
(4) The substitution
of trial counsel, but only where there is an affirmative showing that the
substitution is required in the interests of justice;
(5) The addition of
a new party if:
(A) The new party
has not had a reasonable opportunity to conduct discovery and prepare for
trial; or
(B) The other
parties have not had a reasonable opportunity to conduct discovery and prepare
for trial in regard to the new party's involvement in the case;
(6) A party's
excused inability to obtain essential testimony, documents, or other material
evidence despite diligent efforts; or
(7) A significant,
unanticipated change in the status of the case as a result of which the case is
not ready for trial.”
Rule 3.1332(d) sets forth other factors that are relevant in determining
whether to grant a continuance.
Analysis
Defendant/Cross-Complainant The Abbott
Kinney Grill LLC moves to continue trial.
Defendant Ocean Spaulding Inc. and
Jacques Wylan Plumbing also move on an ex parte basis to continue trial. The
Wabi Plaintiffs and Plaintiff TOPA oppose a continuance.
AKG/TTK requests a continuance on
the grounds that TKK’s counsel is currently scheduled to begin a 3-4 week jury
trial on February 27, 2023, in Monterey County case Maggio et. al. v. First
Solar et. al (Case No. 20CV000925.) The Maggio court has
ruled on motions in limine and confirmed that trial would be going forward on
February 27, 2023, as scheduled. (Serpik Decl., ¶ 8.) As a second ground, AKG
also argues that Plaintiffs have not been forthcoming with discovery. There are
still outstanding records to be produced (to be discussed), and non-expert
discovery has not yet been completed with new witnesses being recently
disclosed. (Serpik Decl., ¶ 17.) TKK asserts that they will not be able to
effectively investigate Plaintiffs’ liability and damages claims in advance of
expert discovery and trial. (Serpik Decl., ¶ 23.)
Ocean moves for a continuance noting
that mediation has been scheduled for February 16, 2023, with mediator Stacy La
Scala; Ocean’s Trial Counsel Darren Ebner will be engaged in Trial in San
Francisco County Superior Court and unavailable to participate in this case
from January 23, 2023 through March 2, 2023. Ocean also wishes to pursue a
cross-complaint against Stainless Worx, but Stainless has not yet filed a
responsive pleading. Finally, Jacques
Wylan Plumbing also moves for a continuance based upon the potential for
exculpatory evidence (the Vollmer-Grey report (discussed below), new evidence
of economic damages from Plaintiff Small, new documents including photographs
and videos that were not previously produced, and the recent additional of cross-defendant
Stainless Worx, Inc.
Plaintiffs oppose the requests on
the grounds that TTK’s unnecessary delay requires denial of a continuance. Plaintiffs
argue that TTK made a strategic decision not to take the Plaintiffs’
depositions earlier in the litigation on the grounds that it wanted documents
from Plaintiffs’ liability consultants first. Moreover, they assert that a continuance
is not required since Plaintiffs’ depositions are scheduled to proceed on
January 20, 2023, and January 26, 2023. Plaintiffs contend that TTK’s delay in
seeking Plaintiffs’ depositions is not a basis to delay the trial.
The Court finds that TTK fails to
establish good cause for a continuance. While
counsel may be scheduled to start a trial on February 217, 2023, TTK will be
engaged in this trial as of February 21, 2023.
When the Court set trial, all counsel indicated that they would be
available. As to TTK’s discovery issues,
the Court finds that there will be sufficient time to complete discovery in
this matter prior to trial. At to Ocean
Spaulding and Jacques Wylan’s ex parte applications, the Court tentatively believes
there is good cause for a continuance.
The Court will discuss this further at the hearing. As to Ocean Spaulding, the Court could trail
this matter day-to-day while counsel is engaged in the other matter, and start
trial once completed. The issue of
Stainless Worx could also be dealt with by severing that cross-complaint. However, there is still the issue of the
Vollmer-Grey discovery and subsequent investigations and depositions, and the
newly produced evidence from Plaintiffs.
The parties should be prepared to address all of these issues at the
hearing.
COMPEL FURTHER STANDARD
If a party to whom a demand for
inspection, copying, testing, or sampling is directed fails to serve a timely
response, the propounding party may move for an order compelling response to
the demand. (CCP § 2031.300(b); see Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007)
148 Cal.App.4th 390, 403-404.) However, when responses are served,
the proper motion is a motion to compel further responses, which is governed by
Code of Civil Procedure §§ 2030.300 and 2031.310. A motion to compel further
responses must set forth specific facts showing “good cause” justifying the
discovery sought by the demand and must be accompanied by a declaration showing
a “reasonable and good faith attempt” to resolve the issues outside of court.
(CCP §§ 2016.040, 2031.310(b)(2).)
A motion to compel further responses
to a demand for inspection or production of documents may be brought based on:
(1) incomplete statements of compliance; (2) inadequate, evasive or incomplete
claims of inability to comply; or (3) unmerited or overly generalized
objections. (Code Civ. Proc., § 2031.310(c).) A motion
for order compelling further responses “shall set forth specific facts showing
good cause justifying the discovery sought by the demand.” (CCP §
2031.310(b)(1).) Absent a claim of privilege or attorney work product, the
moving party meets its burden of showing good cause by a fact-specific showing
of relevance. (Kirkland v. Superior
Court (2002) 95 Cal.App.4th 92, 98.) If the moving party
has shown good cause for the RPDs, the burden is on the objecting party to
justify the objections. (Ibid.)
Analysis
TTK moves to compel Wabi to produce
all records responsive to TKK’s Request for Production of Documents (Set
Three), No. 15. (§ 2031.310.) TTK contends that Plaintiffs’ objections are
without merit. TTK also argues that the information provided in Wabisabi’s
“privilege log” is clearly insufficient and provides no facts to support
Wabisabi’s attorney-client privilege objection.
On May 24, 2022, TKK served Request
for Production of Documents, Set Three on Wabisabi. (Serpik Decl., ¶ 5, Ex. 4.)
Wabi’s responses consisted solely of objections, primarily based on attorney client
privilege and work-product doctrine. Wabi produced a scattering of photographs
taken by Vollmer-Gray, as well as a privilege log, indicating that more than
170 pages of Vollmer-Gray records had been withheld. (Serpik Decl., ¶ 11, Ex.
8.) TTK asserts that this is the investigator who determined that TKK’s cooking
equipment could not cause the fire and that the source of the fire was Wabi’s
electrical equipment. Vollmer Gray opined that the burn patterns indicated that
the fire originated in Reliant Investigation’s original area of origin
(electrical components located about 3 feet above the floor in the wall cavity
of the Wabi Restaurant). (Filip Decl., ¶ 5.)
Wabi objects on the grounds of attorney
client and work product privileges. Generally, the attorney client privilege
allows a client “to refuse to disclose, and to prevent another from disclosing,
a confidential communication between client and lawyer ....” (Evid. Code §954.)
A “confidential
communication” as “information transmitted between a client and his or her
lawyer in the course of that relationship and in confidence by a means which,
so far as the client is aware, discloses the information to no third persons
other than those who are present to further the interest of the client . . . or to those to whom disclosure is
reasonably necessary for . . . the accomplishment of the purpose for which the
lawyer is consulted.” (Evid. Code § 952; see State Farm Fire
& Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640–42
[factual assertions underpinning a claim of privilege must be substantiated
with evidence].)
In California, the work product doctrine provides that “[a]
writing that reflects an attorney’s impressions, conclusions, opinions, or
legal research or theories is not discoverable under any circumstances.” (CCP,
§ 2018.030 (a); see also Nacht & Lewis Architects, Inc. v. Superior
Court (1996) 47 Cal.App.4th 214, 218 [referring to this type of work
product as “absolute work product”].) All other attorney work product is
qualified work product, which is similarly privileged, but this privilege can
be overcome with a showing of unfair prejudice or injustice. (CCP, §
2018.030(b).)
Unless the party holding the
attorney-client privilege allows it, there can be no in camera inspection of
documents to determine whether the privilege exists. (Lipton v. Superior
Court (1996) 48 Cal.App.4th 1599, 1619.) However, in camera inspection is
the proper procedure to evaluate the applicability of the work product doctrine
to specific documents and categorize whether each document should be given
qualified or absolute protection. (BP Alaska Exploration, Inc. v. Superior
Court (1988) 199 Cal.App.3d 1240, 1261.)
Wabi’s claim of privilege is couched in
the common interest doctrine. This rule allows “parties who possess common
legal interests [to] share privileged information without losing the protection
afforded by attorney-client privilege.” (Oxy Resources Calif. LLC v.
Superior Court (2004) 115 Cal.App.4th 874, 888; United States v.
Bergonzi (N.D.Cal. 2003) 216
F.R.D. 487, 495 [“The privilege does not require complete unity of interest
among the participants, and it may apply where the parties’ interests are
adverse in substantial respects.”].) Generally,
communications between
the insured and the attorney retained by the insurer will be privileged even
though it was made in the presence of the insurer. Courts recognize
that, absent a conflict of interest, the insurer and insured enter into a
tripartite “insurer-attorney-insured” relationship when an insurance company
retains an attorney to defend its insured under the insurer’s contractual
obligation. (Gafcon, Inc. v. Ponsor & Associates (2002) 98
Cal.App.4th 1388, 1406; see American Mut. Liab. Ins. Co. v. Superior Court
(1974) 38 Cal.App.3d 579 [discussing obligations owing to an insured by an
attorney selected by an insurance carrier]; see also Bank of America, N.A.
v. Superior Court of Orange County (2013) 212 Cal. App. 4th 1076, 1090-1101
[discussing “tripartite attorney-client relationship” which arose when a title
insurer retained counsel “to prosecute an action on behalf of the insured
pursuant to the title policy”].) The
party claiming the privilege has the burden to show that the communication
sought to be suppressed falls within the terms of the claimed privilege. (Behunin
v. Superior Court (2017) 9 Cal.App.5th 833, 844-45.)
Courts have held that retention of
an attorney to represent an insured is sufficient to establish a
tripartite attorney-client relationship. (Bank of America, supra, 212
Cal.App.4th at 1090; Gafcon, supra, 98 Cal.App.4th 1388, 1406 [“In
California, it is settled that absent a conflict of interest, an attorney
retained by an insurance company to defend its insured under the insurer's
contractual obligation to do so represents and owes a fiduciary duty to both
the insurer and insured”]; Gulf Ins. Co. v. Berger, Kahn, Shafton, Moss,
Figler, Simon & Gladstone (2000) 79 Cal.App.4th 114, 127 [“Counsel
retained by an insurer to defend its insured has an attorney-client
relationship with the insurer.”]; State Farm Mutual Automobile Ins. Co. v.
Federal Ins. Co. (1999) 72 Cal.App.4th 1422, 1429 [“Between the attorney
and the insurer who retained the attorney and paid for the defense, there
exists a separate attorney-client relationship endowed with
confidentiality.”].)
Here, there is insufficient
evidence that subrogation counsel, Cozen O’Connor, was retained to represent
Wabi, such that Wabi may maintain an attorney-client privilege or work product objections
as to the subrogation counsel’s investigation expert, Vollmer-Grey. Thus, the
Court cannot conclude that an attorney-client relationship existed at the time
between Cozen O’Connor and Wabi. TTK establishes, through the declaration of
Nationwide’s adjuster assigned to both TTK and Wabi’s claims, that Nationwide
retained fire investigators to conduct an Origin & Cause investigation,
including Vollmer-Gray. Such investigators are retained by Nationwide as a
matter of course during all first party claims investigations, whether or not
litigation is anticipated. (Filip Decl., ¶ 3.) Nationwide indirectly paid for
Vollmer-Gray’s services through counsel. (Id.)
In support of their claim of
privilege, Wabi proffers the declarations of Peitzke (Nationwide’s subrogation
counsel) and Brignola (Plaintiffs’ consultant -Vollmer-Gray’s president). Counsel
establishes that all subrogation work counsel performed concerning the December
12, 2018, fire was limited to Nationwide’s subrogation claim “arising from”
Wabi’s loss. (Peitzke Decl., ¶ 6; Brignola Decl., ¶ 3.) Of course, it is undisputed that Nationwide
insured both TTK and Wabi, and that these were “companion” claims. This fact complicates
and distinguishes this case from other situations involving a more typical tripartite
insurer-attorney-insured relationship. Notably, there is no information on when
counsel was retained to defend/prosecute Wabi’s claims. Further, Plaintiffs’
litigation counsel subsequently requested that Ms. Peitzke and
Nationwide/Amco make Vollmer-Gray’s file available only to Plaintiffs’
litigation counsel to assist with Plaintiffs’ litigation efforts against the
Abbot Kinney Grill, dba The Tasting Kitchen. (Peitzke Dec. at ¶ 8; Brignola
Dec. ¶¶ 7-8.) If the subrogation counsel was hired specifically to represent
Nationwide’s subrogation interests only as to Wabi at the time of the
Vollmer-Gray investigation, then why would such a request by Plaintiffs be
necessary? If Cozen O’Connor did have an attorney-client relationship with Wabi
during the investigation, then subrogation counsel would have already been
aware of Wabi’s interest in the investigation files.
Therefore, the Court does not find
Wabi has standing to assert an attorney-client privilege, or the work product
doctrine. The Court additionally finds
good cause for the demand, as the investigation of the subject fire is directly
related to the central dispute at hand.
Accordingly, TTK’s motion is
GRANTED. Mandatory sanctions are imposed against Plaintiffs Wabi Venice LLC and
counsel of record, jointly and severally, in the reasonable amount of
$2,885.00, inclusive of costs. (CCP §§ 2030.300; 2023.030.)