Judge: Melvin D. Sandvig, Case: 22CHCV00906, Date: 2023-03-30 Tentative Ruling
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Case Number: 22CHCV00906 Hearing Date: March 30, 2023 Dept: F47
Dept. F47
Date: 3/30/23
Case #22CHCV00906
MOTION TO
COMPEL FURTHER RESPONSES
(Requests for
Production of Documents, Set 1)
Motion filed on 3/3/23.
MOVING PARTY: Plaintiff Liza Porras
RESPONDING PARTY: Defendant Ralphs Grocery Company
NOTICE: ok
RULING: The motion is denied. Defendant’s request for sanctions is granted
as set forth below.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of a slip incident that occurred
on 2/27/21 at a Ralphs Grocery Store located in Valencia, California. On 10/17/22, Plaintiff Liza Porras
(Plaintiff) filed this action against Defendant Ralphs Grocery Company (Defendant).
On 12/5/22, Plaintiff served Defendant with Requests for
Production of Documents. (Buckley Decl.,
Ex.1). On 1/20/23, Defendant served
responses, some of which Plaintiff found to be deficient. (Id., Ex.2). Meet and confer efforts failed to resolve the
issues presented by this motion.
(Buckley Decl.). Therefore, on
3/3/23, Plaintiff filed and served the instant motion seeking an order
compelling Defendant to produce further documents including an incident report
dated 2/27/21, in response to Plaintiff’s Request for Production of Documents,
Set 1. Additionally, Plaintiff requests
sanctions against Defendant in the amount of $3,061.65. Defendant has opposed the motion and requests
sanctions against Plaintiff and her counsel in the amount of $717.50. Plaintiff has filed a reply to the
opposition.
ANALYSIS
The instant motion concerns Plaintiff’s Request 8 which
seeks “[a] copy of the incident report from the date of the INCIDENT.” (Buckley Decl., Ex.1). Defendant objected to the request on the
ground that the requested document, a 2/27/21 Incident Report prepared by
Defendant’s employee, Candice Hill, is protected by the attorney-client
privilege and/or the work-product doctrine.
(Id., Ex.2). Defendant
also stated in its verified response that the document was “prepared at the
direction of [Defendant], pursuant to its longstanding policy, for confidential
transmission to [Defendant’s] attorneys in anticipation of litigation.” Id.
Defendant’s responses were verified by Candice Hill (Hill).
Incident reports prepared in anticipation of litigation
are protected from disclosure under the attorney-client privilege and
work-product doctrine. Payless Drug
Store, Inc. (1976) 54 CA3d 988, 992; D.I. Chadbourne, Inc. (1964) 60
C2d 723, 729. When an employer directs
an employee to make such a report the intent of the employer controls. See Payless Drug Store, Inc., supra
at 991; Chadbourne, Inc., supra at 737-738.
The fact that the document may contain the results of a factual
investigation does not make the document “unprivileged.” See Costco Wholesale Corp.
(2009) 47 C4th 725, 729 which disapproved 2,022 Ranch, LLC (2003) 113
CA4th 1377 relied on by Plaintiff. (See
Motion, p.6:9-19, p.7:24-26).
Plaintiff’s argument in the reply that Defendant’s
reliance on Chadbourne, supra, is misplaced is confusing and
without merit. The portion of the Chadbourne
opinion relied on by Plaintiff states in full:
“3. When an employee has been a
witness to matters which require communication to the corporate employer's
attorney, and the employee has no connection with those matters other than as a
witness, he is an independent witness; and the fact that the employer requires
him to make a statement for transmittal to the latter's attorney does not alter
his status or make his statement subject to the attorney-client privilege.”
See Chadbourne, supra
at 737; (Reply, p.2:1-5).
Here, the subject incident report was prepared by
Defendant’s employee, Candice Hill (Hill).
There is no evidence that Hill was an eye-witness to the incident. The statement Plaintiff seemingly filled out
on the date of the incident indicates that Plaintiff reported the incident to
“Candice,” along with “Frank” and “Alex.”
(See Buckley Decl., Ex.2 “Customer Statement”). Despite the foregoing, the reply seems to
imply that Candice Hill, who prepared the subject incident report, was not present
at the store on the date of the incident.
(See Reply, p.4:3-11).
Based on the foregoing, regardless of whether Hill was present in the
store on the date of the incident, it does not appear as if she was an
eye-witness to it.
Chadbourne, supra, held:
“4. Where the employee's connection
with the matter grows out of his employment to the extent that his report or
statement is required in the ordinary course of the corporation's business, the
employee is no longer an independent witness, and his statement or report is
that of the employer;
5. If, in the case of the employee
last mentioned, the employer requires (by standing rule or otherwise) that the
employee make a report, the privilege of that report is to be determined by the
employer's purpose in requiring the same; that is to say, if the employer
directs the making of the report for confidential transmittal to its attorney,
the communication may be privileged.”
Here, the evidence indicates that the subject report was
made by Defendant’s employee, Hill, whose connection to the incident is based
on her employment and the report was required and made in the ordinary course
of Defendant’s business with the intent that it be confidential. As such, the report is privileged.
CONCLUSION
The motion is denied.
Defendant is entitled to an award of sanctions against Plaintiff Liza
Porras and her attorneys of record, J. Lloyd Buckley of Custodio & Dubey,
LLP, in the reasonable amount of $717.50, payable within 30 days. CCP 2023.010(h); CCP 2031.310(h).