Judge: Mark A. Young, Case: 23SMCV03679, Date: 2024-03-22 Tentative Ruling
Case Number: 23SMCV03679 Hearing Date: March 22, 2024 Dept: M
CASE NAME: Sheriff, v. Los
Angeles County MTA, et al.
CASE NO.: 23SMCV03679
MOTION: Motion
to Compel Further Responses
HEARING DATE: 3/22/2024
Legal
Standard
In
the absence of contrary court order, a civil litigant’s right to discovery is
broad. “[A]ny party may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter involved in the pending 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;
see Davies v. Superior Court
(1984) 36 Cal.3d 291, 301.) “For discovery purposes, information is relevant if
it ‘might reasonably assist a party in evaluating the case, preparing for
trial, or facilitating settlement.’ [Citation] Admissibility is not the test
and information, unless privileged, is discoverable if it might reasonably lead
to admissible evidence. [Citation] These rules are applied liberally in favor
of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539,
1546.)
A motion to compel further responses
to a demand for inspection or production of documents (RPD) 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. (CCP§ 2031.310(c).) A motion to compel
further responses to requests for production “shall set forth specific facts
showing good cause justifying the discovery sought by the inspection demand.”
(CCP. § 2031.310(b)(1).) “To establish ‘good cause,’ the burden is on the
moving party to show both: [¶] Relevance to the subject matter (e.g., how the
information in the documents would tend to prove or disprove some issue in the
case); and [¶] Specific facts justifying discovery (e.g., why such information
is necessary for trial preparation or to prevent surprise at trial.)
[Citations.] [¶] The fact that there is no alternative source for the
information sought is an important factor in establishing ‘good cause’ for
inspection. But it is not essential in every case.” (Edmon & Karnow,
California Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶
8:1495.6.)
A motion to compel further must be
noticed within 45 days of the
service of a response, or any supplemental response, or on or before any
specific later date to which the propounding party and the responding party
have agreed in writing. Otherwise, the propounding party waives any right
to compel further response to the inspection demand. (See, e.g., CCP §
2031.310(c).)
Motions to compel further responses
must always be accompanied by a meet-and confer-declaration (per CCP §
2016.040) demonstrating a “reasonable and good faith attempt an informal
resolution of each issue presented by the motion.” (CCP §§ 2030.300(b),
2031.310(b)(2), 2033.290(b).) They must also be accompanied by a separate
statement containing the requests and the responses, verbatim, as well as
reasons why a further response is warranted. (CRC, rule 3.1345(a).) The
separate statement must also be complete in itself; no extrinsic materials may
be incorporated by reference. (CRC rule 3.1345(c).)
If a timely motion to compel has
been filed, the¿burden is on the responding party¿to justify any objection or
failure fully to answer.¿(Coy v. Superior Court (1962) 58 Cal.2d 210,
220–221 [addressing a motion to compel further responses to interrogatories];
see also¿Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245,
255.)
Analysis
Defendant Los Angeles County
Metropolitan Transportation Authority (“MTA”) moves to compel Plaintiff Musa
Mohammed Sheriff to serve a further response to Requests for Production (RPD),
request No. 24. Defendant also requests $2,966 in sanctions against counsel for
Plaintiff, Downtown LA Law Group.
The request at issue specifically
seeks “All correspondence between Plaintiff's counsel's office and the offices
of any of Plaintiff's doctors.” The request for such documents is reasonably
calculated to lead to the discovery of admissible evidence, as those documents
would tend to show Plaintiff’s treatment generally, the reasonable or actual
value of Plaintiff’s medical care, and referral bias on the part of the
treating physicians. (See Qaadir v. Figueroa (2021) 67 Cal. App. 5th
790, 808 [“referral evidence” is relevant to the reasonable value of a
lien-physicians’ medical care because it may show bias or financial incentives
on the part of the lien-physicians].) Plaintiff must therefore support his
specific objections to this request.
Plaintiff objected to the request
as follows: “Objection. This request is vague, ambiguous and overbroad, and
fails to identify the requested documents with reasonable particularity, in
violation of Code of Civil Procedure § 2031.030 et seq. Responding Party
further objects to this request to the extent that the request violates and/or
invades the attorney-client privilege and/or attorney work product doctrine.
Additionally, this request improperly seeks the premature disclosure of experts
and expert opinions or the documents on which said opinions are based. This
request also lacks foundation and assumes facts not in evidence. It is also
vague and ambiguous as to the term “correspondence.””
Plaintiff fails to support these
objections with sufficient argument or evidence. The request is not overbroad,
vague or ambiguous. There is nothing vague about the term “correspondence,”
which would reasonably include any written communications between Plaintiff’s
counsel and Plaintiff’s doctor’s offices. Further, the request does not seek premature
expert opinions, as it does not seek any opinions.
Plaintiff raises, for the first
time, that the request impinges on third-party privacy rights. Plaintiff argues
that this request seeks correspondence between Plaintiff’s counsel’s office and
Plaintiff’s physicians, which may include discussions about third parties who
have treated with the same physician. As this objection was not brought to the
request, Plaintiff has waived any privacy objections.
Plaintiff also fails to support
their objections based on attorney-client privilege or the work product
doctrine. A
client has the privilege to refuse to disclose, and to prevent another from
disclosing, any confidential communication between the client and his or her
lawyer. (Evid. Code § 954.) If a timely claim of privilege is made and the
requisite foundation is established, evidence protected by the privilege
may not be ordered disclosed regardless of relevance, necessity, or
circumstances peculiar to the case. (Id.) The privilege encourages clients to
make full disclosure to their attorneys without fear of revelation to others;
and thus protects a person's right to freely and fully confer with and confide
in an attorney in order to receive competent legal advice and representation. (Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 732.) The party
claiming the privilege has the burden to establish the facts necessary to
support its exercise, i.e. “a communication made in the course of the
attorney-client relationship.” (Id. at 733.)
A “confidential communication between
client and lawyer” means 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 in the
consultation or those to whom disclosure is reasonably necessary for the
transmission of the information or the accomplishment of the purpose for which
the lawyer is consulted, and includes a legal opinion formed and the advice
given by the lawyer in the course of that relationship. (Evid. Code § 952.)
Attorney work product doctrine absolutely protects from
disclosure “writing[s] that reflect[] an attorney’s impressions, conclusions,
opinions, or legal research or theories . . ..” (CCP § 2018.030(a).) The qualified
attorney work product privilege protects disclosure of attorney work product,
written or not, reflecting impressions and conclusions or not, “unless the
court determines that denial of discovery will unfairly prejudice the party
seeking discovery.” (CCP § 2018.030(b); see Curtis v. Superior Court (2021)
62 Cal.App.5th 453, 468.) “The purpose of the privilege is twofold: to
‘[p]reserve the rights of attorneys to prepare cases for trial with [the]
degree of privacy necessary …’; and to ‘[p]revent attorneys from taking undue
advantage of their adversary’s industry and efforts.’ [Citation.]” (Id.
at 648.) Work
product specifically covers “derivative” materials that are created by or
derived from an attorney's work on behalf of a client that reflect the
attorney's evaluation or interpretation of the law or the facts. (Mack v.
Sup.Ct. (1968) 259 Cal.App.2d 7, 10 [“Nonderivative” materials are those
that are only evidentiary in character and are not protected].) The absolute
protection provided for an attorney's impressions, conclusions and research, is
subject to waiver under the same conditions as the attorney-client privilege. (Wells
Fargo Bank, N.A. v. Sup.Ct. (2000) 22 Cal.4th 201, 214; see Raytheon Co.
v. Sup.Ct. (1989) 208 Cal.App.3d 683, 689 [sharing information entitled to
qualified work product protection with others does not waive the protection
unless the circumstances are inconsistent with safeguarding the privacy of the
attorney's trial preparations].)
Generally, the correspondence sought by
the request does not seek communications between Plaintiff and counsel. The
request seeks attorney-doctor communications, which could be
privileged and could contain qualified attorney work product. That said, the requisite
preliminary facts in support have not been established in the response or in
the opposition to this motion. Upon asserting the attorney-client
privilege, the party must prove the preliminary facts essential to the claim of
privilege, including that the attorney-client relationship existed when the
communication was made and the confidential nature of the communication. (Citizens
for Ceres v. Sup.Ct. (2013) 217 Cal.App.4th 889, 911; see DP Pham, LLC
v. Cheadle (2016) 246 Cal.App.4th 653, 664-665 [whether attorney-client
privilege applies is question of fact for court to determine]; see also Evid.
Code § 402.) Furthermore, if a party
objects to a document production based on a claim of privilege or work product
protection, “the response shall provide sufficient factual information for
other parties to evaluate the merits of that claim, including, if necessary, a
privilege log.” (CCP § 2031.240(c)(1); Wellpoint Health Networks, Inc. v. Sup.Ct. (1997) 59
Cal.App.4th 110, 130 [the purpose of a privilege log is to make a record of the
documents withheld and the privilege claim asserted as to each].)
Here, the responses did not include
any factual information to demonstrate the merits of the claim or a privilege
log. Plaintiff merely asserted a blanket objection that RPD no. 24 seeks
documents protected by both the attorney client privilege and attorney work
product doctrine. In
opposition, Plaintiff submits no evidence that any particular communications
were intended to be confidential or occurred during the attorney-client
relationship. Additionally, Plaintiff does not show that the responsive
documents contain impressions,
conclusions, opinions, or legal research or theories. To the extent that the
request does seek qualified attorney work product, a privilege log or in camera
review would be required. Therefore, a further response is required to no. 24. To the extent any
documents are alleged to be covered by attorney-client
privilege or the work product doctrine, Plaintiff is ordered to provide a
privilege log. Accordingly,
the motion is GRANTED. Further
production is ordered within 10 days.
SANCTIONS
Sanctions are mandatory. The Court must
sanction any party that unsuccessfully makes or opposes a motion to compel a
further response, “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.” (See, e.g., CCP, § 2030.300(d).) Here,
sanctions are mandatory, as Plaintiff did not provide substantial justification
for opposing this motion.
Defendant requests $2,966 in
sanctions against counsel for Plaintiff, Downtown LA Law Group. Counsel attests
that this represents 7.8 hours attempting to procure responses, meeting and
conferring, participating in an IDC, and preparing this motion; an anticipated
3.0 hours analyzing the opposition and drafting a reply brief; and an
anticipated 1.0 hour attending the hearing, at a rate of $250 per hour, plus a
$16 filing fee. (Kohrs Delc., ¶¶ 4-6.)
The Court finds that the requested sanctions
are reasonable. Accordingly, the request
for sanctions is GRANTED in the amount of $2,966.00 against Plaintiff’s counsel
of record. Sanctions are payable within
30 days.