Judge: Melvin D. Sandvig, Case: 24CHCV00759, Date: 2025-04-03 Tentative Ruling
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Case Number: 24CHCV00759 Hearing Date: April 3, 2025 Dept: F47
Dept. F47
Date: 4/3/25
TRIAL DATE: 5/18/26
Case #24CHCV00759
MOTION TO
COMPEL FURTHER RESPONSES
(Demand for
Production of Documents, Set 1)
Motion filed on 2/10/25.
MOVING PARTY: Plaintiffs Albert Lee Hamlin and Lisa Marie
Hamlin
RESPONDING PARTY: Defendant Valencia Town Center Venture,
LP
NOTICE: ok
RULING: The motion is denied.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of a slip and fall incident that
occurred on 3/21/23 at the Valencia Town Center Mall. On that date, Plaintiff Albert Lee Hamlin
slipped and fell inside the premises striking his head. As a result of the incident, Mr. Hamlin allegedly
suffered severe traumatic brain injury.
After the incident, Defendant Valencia Town Center
Venture, LP’s (Defendant) third-party janitorial service company, Nationwide
Janitorial Services, Inc. (NJSI) responded to the scene to clean up and created
an incident report. (Coppock Decl.,
Ex.A, B). Defendant’s third-party
security company, Universal Protection Service, LP dba Allied Universal
Security (Allied Universal) also responded to the incident scene, took photos
and created an incident report. Id.
On 3/11/24, Plaintiffs Albert Lee Hamlin and Lisa Marie
Hamlin (collectively, Plaintiffs) filed this action against several defendants alleging
causes of action for: (1) Premises Liability, (2) Negligence, (3) Negligent
Hiring, Supervising and Training and (4) Loss of Consortium. On 5/2/24, Plaintiffs named Defendant in
placed of Doe 1. Plaintiffs have since
dismissed all other defendants.
On 7/12/24, Plaintiffs served their Demand for Production
of Documents, Set 1, on Defendant. In 12/9/24
further responses to Demands 18 and 19, Defendant objected, refused to produce
documents on the basis of privilege and produced a privilege log. (Coppock Decl., Ex.A, B). After meet and confer efforts failed to
resolve the issues concerning Demands 18 and 19, the parties agreed to extend
the deadline for filing a motion to compel further responses until 2/10/25. (Id., Ex.H).
On 11/25/24, Plaintiffs issued deposition subpoenas for
the production of business records to NJSI and Allied Universal seeking:
All documents and communications,
including but not limited to photographs, video, records, statements, and
reports referring to or regarding Plaintiff Albert Lee Hamlin and the incident
that occurred on March 21, 2023 at Valencia Town Center Mall, 24201 Valencia
Blvd., Valencia, CA 91355.
(Coppock Decl., Ex.C)
Defendant served objections to the subpoenas. (Id. Ex.D; Parker Decl., Ex.B). Despite the objection, Allied Security
produced its report from the date of the incident and later indicated that it
was mistakenly produced. (Coppock Decl.,
Ex.E; Parker Decl., Ex.C). NJSI’s general
counsel refused to produce its incident report claiming that it is work product. (Parker Decl., Ex.E). A motion to compel NJSI to produce all
documents requested by Plaintiff’s Deposition Subpoena for Production of
Business Records is scheduled for hearing on 5/30/25.
On 2/10/25, Plaintiff filed and served the instant motion
seeking an order compelling Defendant to produce all documents requested in
Plaintiffs’ Demand for Production of Documents, Set 1, Demands Nos. 18 and 19. Defendant has opposed the motion and
Plaintiffs have filed a reply to the opposition.
ANALYSIS
Under the broad scope of discovery, a party may obtain
discovery regarding any non-privileged matter that is relevant to the subject
matter of the litigation. See CCP
2017.010.
CCP 2031.310(a) provides:
“(a) On receipt of a response to a
demand for inspection, copying, testing, or sampling, the demanding party may
move for an order compelling further response to the demand if the demanding
party deems that any of the following apply:
(1) A statement of compliance with
the demand is incomplete.
(2) A representation of inability
to comply is inadequate, incomplete, or evasive.
(3) An objection in the response is
without merit or too general.”
A claim of attorney-client privilege regarding a
communication creates a presumption that the communication is made in
confidence. See Evidence Code
917(a). The party opposing the claim of
privilege bears the burden of proving the communication was not confidential. Evidence Code 951, 954(a). The party claiming the privilege must prove
that a confidential communication was made in confidence in the course of the
attorney-client relationship. State
Farm Fire & Casualty Co. (1997) 54 CA4th 625, 639. The opponent must then disprove the
claim. Id.
Reports prepared in anticipation of litigation are
generally privileged. Sierra Vista
Hospital (1967) 248 CA2d 359, 364-367.
If an incident report is prepared by a defendant’s employee, at the
direction of the employer, the intent of the employer that the report remain
confidential is sufficient to establish the report is a privileged document
when transmitted to defense counsel. D.I.
Chadbourne, Inc. (1964) 60 C2d 723, 729.
If a corporate employer requires employees to make reports, whether the
reports are privileged depends on the employer’s main purpose for the report
and, if there is more than one purpose for the report, the main purpose
controls. Scripps Health (2003)
109 CA4th 529, 533 citing D.I. Chadbourne, Inc., supra.
The common interest doctrine allows for the sharing of
attorney-client privileged information without waiving the privilege if: (1)
the two parties have a common interest in securing legal advice related to the
same matter; and (2) the communication is made to advance their shared interest
in securing legal advice on that common matter.
Golden Door Properties, LLC (2020) 53 CA5th 733, 781-782 citing Behunin
(2017) 9 CA5th 833, 853.
Demand 18 seeks “All internal emails, electronic
messages, telephone logs, letters, memos, notes or other means of
COMMUNICATIONS REGARDING the INCIDENT.” In response to this demand, Defendant
asserted various objections, including vague, ambiguous, privacy rights of
third parties, over broad, unduly burdensome, harassing, attorney-client
privilege and attorney work-product. The
instant motion addresses only the attorney-client privilege objection. (See Motion, p.5:1-p.7:21; Plaintiff’s
Separate Statement, p.3:4-17). Given the
broad scope of the demand, the Court finds Defendant’s response and privilege
log identifying various documents/communications being withheld on the bases of
privilege to be appropriate. (See
Coppock Decl., Ex.B). The Court finds
that it would be overly burdensome for Defendant to have to specify each
possibly responsive document to the overly broad request in a privilege
log.
Demand 19 seeks “All reports REGARDING the
INCIDENT.” In response, Defendant has,
again, asserted various objections and without waiving same has identified two
incident reports prepared by Allied Universal and NJSI which Defendant refused
to produce on the basis that they were prepared in anticipation of litigation
and are, therefore, privileged. (Coppock
Decl., Ex.A, B). The instant motion
addresses only the issue of attorney work product protection as to the NJSI
incident report (since the Allied Universal report has already been produced,
albeit, inadvertently). (See
Motion, p.8:1-p.10:3; Plaintiffs’ Separate Statement, p.5:1-18).
As noted above, NJSI has refused to produce its incident
report on the basis that it is work product.
(Parker Decl., Ex.E). Additionally,
Defendant has produced evidence indicating that NJSI provided the report to
Defendant pursuant to a Cooperative Defense Agreement between Defendant and
NJSI under which the document is to remain confidential. (Parker Decl., Ex.F). The fact that Plaintiffs have not named NJSI
as a defendant in this action does not guarantee that NJSI will never be named
as a party in this action and/or waive NJSI’s claim that its employees prepared
the document in anticipation of litigation.
As such, the NJSI report falls under the common interest doctrine. Moreover, since NJSI has refused to produce
the document which is the subject of a motion addressed to NJSI and on calendar
on 5/30/25, the Court finds that it would be improper to require Defendant, who
did not create the document, to produce same in the face of NJSI’s objection to
such production.
CONCLUSION
The motion is denied.
Defendant’s request for an order that Plaintiffs not be
allowed to retain the Allied Universal incident report; that the incident
report be deemed privileged; and Plaintiff’s counsel be directed to destroy all
copies, without disseminating them to any third parties and the alternative
request for a protective order, are denied without prejudice to Defendant and/or
Allied Universal making a properly noticed and supported motion for such
relief. The Court finds that it would be
improper to make such a ruling based on a request made in the conclusion to Defendant’s
opposition to the instant motion. (See
Opposition, p.8:22-p.9:4).
The Court notes that in violation of CRC 3.1110(f)(4)
Defendant has failed to electronically bookmark the exhibits attached to the opposition. Counsel for the parties are warned that
failure to comply with this rule in the future may result in matters being
continued so that papers can be resubmitted in compliance with the rule, papers
not being considered and/or the imposition of sanctions.