Judge: Maurice A. Leiter, Case: 19STCV28303, Date: 2023-05-18 Tentative Ruling

Case Number: 19STCV28303    Hearing Date: May 18, 2023    Dept: 54

Hearing Date: May 18, 2023

Department 54, Judge Maurice A. Leiter

(2) Motions to Compel Discovery Responses;

Motion to Withdraw Responses to Requests for Admission

T/R:     PLAINTIFF’S MOTIONS ARE GRANTED.

DEFENDANT’S MOTION IS GRANTED.

            PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

            The Court considers the moving papers, oppositions, and replies.

BACKGROUND 

On September 17, 2019, Plaintiff Paul Van Kleef filed the operative first amended complaint against Defendants Clean Concept, LLC, the Estate of Max Azria, Yasmine Hanane, Robert McFarlane, and Lubov Azria, asserting twenty causes of action concerning the parties’ business dealings.  

ANALYSIS

A. Plaintiff’s Motion to Compel Documents Improperly Designated as Privileged

            “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.” (Costco Wholesale Corp. v. Super. Ct. (2009) 47 Cal.4th 725, 733.)

Plaintiff moves to compel production of documents that Defendant Lubov Azria has refused to produce on the ground they are protected by the attorney-client privilege between Clean Concept and counsel, and between third parties and counsel. The parties disagree on the other side’s authority and ownership interests in Clean Concept. Plaintiff asserts Defendant is not a voting member. Defendant argues Clean Concept is no longer an existing entity and therefore Plaintiff cannot waive the privilege as a manager. Both parties maintain they “control” Clean Concept as the majority member.

            The central question in this motion is whether Defendant may assert the attorney-client privilege against Plaintiff. There is no dispute that both Defendant and Plaintiff have some membership and/or ownership interest in Clean Concept, regardless of who is designated as the majority owner and regardless of whether Defendant is a voting member. Defendant does not present authority showing she may withhold documents from another current member or manager under the attorney-client privilege, even if those documents are “adverse” to the member or manager. Nor has Defendant presented authority showing that as a majority member she is the sole successor or assignee of Clean Concept.

Additionally, Defendant has not established that she is holder of the attorney-client privilege of third-party entities designated as “Non-CC.”

Defendant may withhold only privileged documents with respect to which she is the sole holder of privilege as an individual. Any other documents must be produced.

Plaintiff’s motion is GRANTED.

B. Plaintiff’s Motion to Compel Compliance with Court Order and Enforce Subpoenas

            Plaintiff moves to enforce the Court’s June 22, 2021 order requiring Defendant provide responses to RPDs without objection with a privilege log, and to enforce subpoenas for bank records. Plaintiff asserts Defendant has improperly withheld documents, claiming they are protected by financial privacy. The Court already has ordered Defendant to produce the subject documents without objection; Defendant waived any objections by failing to respond. Plaintiff alleges Defendant embezzled money from Clean Concept. Plaintiff’s need for discovery of Defendant and Defendant’s affiliates’ financials outweighs the right to financial privacy.

            Plaintiff’s motion is GRANTED.

C. Defendant’s Motion to Withdraw Responses to RFAs

            A party may withdraw or amend an admission made in response to a request for admission once leave of court is granted after notice to all parties. (CCP § 2033.300(a).) A court may permit the withdrawal or amendment only if it determines the admission was the result of mistake, inadvertence, or excusable neglect, and the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits. (CCP § 2033.300(b).)

            Defendant moves to amend or withdraw responses to RFAs on the ground that Defendant’s former counsel produced the responses without complete information and mistaken interpretations of the requests. Defendant asserts that the RFAs, which request that Defendant address the validity of her acquisition of interests in Clean Concept, seek legal conclusions rather than facts. Former counsel declares that the wrote the responses in error.

            In opposition, Plaintiff asserts Defendant has changed her responses to these RFAs at least twice before and should not be permitted to change them again. Plaintiff represents that additional discovery will have to be conducted if the responses are changed again.

            The Court will allow Defendant to amend the responses to RFAs. The issues presented in the RFAs are central to this action and Plaintiff has been on notice of Defendant’s position for months. Counsel has provided a declaration showing excusable neglect.

            Defendant’s motion is GRANTED.