Judge: Michael E. Whitaker, Case: 20STCV34458, Date: 2022-08-04 Tentative Ruling

Case Number: 20STCV34458    Hearing Date: August 4, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

In the complaint filed on June 9, 2020, Plaintiffs Vardan Alajajyan and Albert Galajyan (collectively, “Plaintiffs”) allege they were injured after a vehicle operated by Defendant Jazmin Flaherty (“Defendant”) collided with Plaintiffs’ vehicle while Defendant was making a left turn.   Plaintiffs move the Court for an order compelling Defendant to provide further responses to the following discovery request:

Request for Production of Documents, Set 1, Propounded to Defendant

• Propounded:  March 11, 2022

• Responses:  April 19, 2022

• Motion Filed:  June 16, 2022

   

  Defendant opposes the motion. 

   

  Procedural Requirements

   

              Informal  Discovery Conference

   

              Per the Seventh Amended Standing Order for Procedures in the Personal Injury Hub Courts Effective May 16, 2022 (Revised 05/04/2022), ¶ 9E, “PI Hub Courts will not hear Motions to Compel Further Discovery Responses to Discovery until the parties have engaged in an Informal Discovery Conference (IDC) . . . The purpose of the IDC is to assist the parties to resolve and/or narrow the scope of discovery disputes.”    

   

              Here, the parties complied with the Standing Order, and the Court presided over the required IDC on July 1, 2022 and July 20, 2022.

   

              Timeliness of Motion

   

              A notice of motion to compel further responses must be “given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which” the parties have agreed in writing.  (Code Civ. Proc., § 2031.310, subd. (c).)  Failure to file such a motion within this time period constitutes a waiver of any right to compel further responses to demands for production of documents.  (Ibid.)

   

  Here, Plaintiffs filed the motion on the date set forth above.  Defendant has not objected to the timeliness of the motion. 

   

              Meet and Confer

   

              A motion to compel must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040.  (Code Civ. Proc., § 2031.310, subd. (b)(2).)  A meet and confer declaration must state facts showing a reasonable and good-faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., § 2016.040.) 

   

              “The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order.  . . .  This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.”  (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434-1435, citations omitted [cleaned  up].)  To comply, “A reasonable and good-faith attempt at informal resolution entails something more than bickering with [opposing counsel].  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Townsend, supra, 61 Cal.App.4th at p. 1439; see also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [to satisfy the attempt at informal resolution required in section 2016.040 opposing parties must do more than try to persuade each other of their errors].)  In short, the Discovery Act “requires that there be a serious effort at negotiation and informal resolution.”  (Townsend, supra, 61 Cal.App.4th at p. 1438.)

   

              To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433.)  In determining if parties have satisfied section 2016.040, judges may consider “the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Id. at pp. 431-432 [holding that the trial court was correct in determining that sending a letter with oppositions was an insufficient attempt at an informal resolution].)  In sum, meet and confer efforts should go beyond merely sending letters to each other stating each party’s respective positions.

   

              Here, as set forth in the Declaration of Susana Oganesian, counsel for Plaintiffs, the Court finds that both parties have engaged in a reasonable and good faith attempt at an informal resolution of the issues presented in the motion.[1] 

   

              Separate Statement

   

              California Rules of Court, rule 3.1345 requires that any motion involving the content of discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for why an order compelling further responses is warranted. 

   

              Here, Plaintiffs have filed a separate statement related to the motion which complies with Rule 3.1345

   

  Analysis

             

1. DISCOVERY – GENERAL PRINCIPLES

    

               “The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise.  In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”  (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)  

    

               Where a party objects, or responds inadequately, to discovery requests, a motion lies to compel further responses, and that party has the burden to justify the objections or inadequate responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Code Civ. Proc., § 2031.310, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to a demand for inspection”].)  “A trial court's determination of a motion to compel discovery is reviewed for abuse of discretion.  However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court's factual findings will be upheld if they are supported by substantial evidence.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [cleaned up].)

    

2. REQUESTS FOR PRODUCTION OF DOCUMENTS – 4, 8, 12, 13, 14 & 39

    

               In responses to Requests for Production of Documents 4, 8, 12, 13, 14 and 39, Defendant objected to producing responsive documents on the grounds of attorney-client privilege and the attorney work product doctrine (“conditional”).  On those grounds, Defendant has identified but refused to produce two recorded statements from Defendant and Danny Molina, who is a witness.  Defendant claims that the recorded statements were obtained by Bradley Carlson of American Family Connect Property and Casualty Insurance Company at the behest of counsel for Defendant.  Defendant further claims:  “Responding party intended the documents and reports responsive to this production request to be confidential for transmission to and use by attorneys defending defendant in litigation arising from this incident.”  And following the IDC conducted by this Court, Defendant served a privilege log on Plaintiffs asserting the same grounds for withholding the recorded statements.  (See Defendant’s Notice of Lodgment filed on July 15, 2022.) 

    

   1. ATTORNEY CLIENT PRIVILEGE

       

                  Per Evidence Code section 954, “[t]he client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:  (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.”  (Evid. Code, § 954.)  And “while attorney-client communications are presumed to be confidential, the party claiming the attorney-client privilege as a bar to disclosure has the burden of showing that the communication sought to be suppressed falls within the parameters of the privilege.”  (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533 [cleaned up].)

       

                  Moreover, “[i]t has long been recognized that communications made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.”  (Scripps Health v. Superior Court, supra, 109 Cal.App.4th at p. 535; see also Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424; Travelers Ins. Cos. v. Superior Court (1983) 143 Cal.App.3d 436.) 

       

                  Here, the Court finds that Defendant fails to meet her burden to establish that the attorney client privilege applies to prevent the disclosure of the recorded statements.  Neither Defendant nor Bradley Carlson have proffered declarations which provide a factual basis for the application of the privilege.  In addition, Brittany A. Auchard (“Auchard”), counsel for Defendant, fails to articulate a factual basis for the application of the privilege.  Auchard’s references to the recorded statements in her declaration do not adequately address why such statements are privileged.  (See Declaration of Brittany A. Auchard, ¶¶ 5-6.)   

       

                  Further, to the extent that the “Dominant Purpose Test” is applicable to determining whether the recorded statements are covered by the attorney-client privilege and not subject to disclosure, the Court finds that there is no evidence for the Court to make any determination under the “Dominant Purpose Test.”  In particular, the Court finds that the Auchard’s declaration is devoid of any facts addressing the dominant purpose of the recorded statements being generated and transmitted to counsel for Defendant.    

       

   2. ATTORNEY WORK PRODUCT DOCTRINE

       

                  The attorney work product doctrine is codified under Code of Civil Procedure section 2018.010, et seq. 

                 

      It is the policy of the state to do both of the following:

       

      (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.

       

      (b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts.

       

      (a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

       

      (b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.

       

      (See Code Civ. Proc., §§ 2018.020, 2018.030.)  “Absolute protection is afforded to writings that reflect ‘an attorney's impressions, conclusions, opinions, or legal research or theories.’ All other work product receives qualified protection; such material ‘is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.’ ”  (Coito v. Superior Court (2012) 54 Cal.4th 480, 485, citations omitted (hereafter, Coito).)[2]

       

                  In Coito, the California Supreme Court decided “[w]hat work product protection, if any, should be accorded two items: first, recordings of witness interviews conducted by investigators employed by defendant's counsel, and second, information concerning the identity of witnesses from whom defendant's counsel has obtained statements.”  (Coito, supra, 54 Cal.4th at p. 485.)  With respect to both items, the Coito court opined:

       

      [W]e hold that the recorded witness statements are entitled as a matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its attorney's impressions, conclusions, opinions, or legal research or theories.  If not, then the items may be subject to discovery if plaintiff can show that denial of discovery will unfairly prejudice [her] in preparing [her] claim or will result in an injustice.

       

      As to the identity of witnesses from whom defendant's counsel has obtained statements, we hold that such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney's industry or efforts (qualified privilege).

       

      (Id. at p. 486 [cleaned up].)   Attorneys are the holders of the “work product privilege.”  (See Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 468 [“The work product privilege is held by the attorney, not the client”].) 

       

                  Here, Defendant has the initial burden to establish that the recorded statements are in fact the work product of her counsel.  To that end, Defendant advances Auchard’s declaration to demonstrate that the recorded statements are the work product of her counsel, warranting qualified protection. 

       

                  But Auchard’s declaration is wanting.  Auchard does not state that the recorded statements were obtained at the behest of counsel for Defendant, and Auchard does not attest that Bradley Coleman was retained, or instructed, by Counsel for Defendant to obtain the recorded statements for use during the course of the litigation.  More important, Auchard asserts that “the direction to prepare witness statements comes from in-house counsel for the insurance carrier,” but this statement lacks foundation and comprises of multiple inadmissible hearsay.  As such, the Court will disregard from consideration Auchard’s statement, in part, in paragraph 5 of her declaration.  (See Defendant’s Opposition to Plaintiffs’ Motion, p. 8 (line 27) – p. 9 (line 2).) 

       

                  Based upon the record, the Court finds that neither the attorney client privilege nor the attorney work production doctrine applies to preclude the disclosure of the recorded statements.  Defendant has failed to proffer sufficient, competent evidence to establish that either the doctrine or privilege thwarts Plaintiffs’ efforts to obtain the recorded statements.  This is a simple failure of proof on the part of Defendant.

       

                  Therefore, with respect to Requests for Production of Documents 4, 8, 12, 13, 14 and 39, the Court grants Plaintiffs’ motion, and orders Defendant to produce the recorded statements.

       

3. REQUEST FOR PRODUCTION OF DOCUMENTS – 32 & 60

    

               Plaintiffs seek documents evidencing the number of claims made against Defendant and Defendant’s cellular telephone records from the date of the incident.  Defendant objected on the grounds that the requests are “irrelevant, immaterial, and not reasonably calculated to lead to the discovery of admissible evidence,” and violates Defendant’s right to privacy.[3]

    

               First, Defendant’s objections on relevance and materiality (scope of permissible discovery) are meritless.  “Information about similar claims against defendant and accidents involving the same location, product or instrumentality may be probative of liability and punitive damage allegations; such information is discoverable because it may show knowledge of a dangerous condition or a common contributory factor. [See Davies v. Sup.Ct. (1984) 36 C3d 291, 301, 204 CR 154, 160-161 (similar accidents at same location); Colonial Life & Acc. Ins. Co. v. Sup.Ct. (1982) 31 C3d 785, 790-792, 183 CR 810, 813-814 (similar claims)].”   (See Haning et al., Cal. Practice Guide:  Personal Injury (The Rutter Group 2020) ¶ 6:16, p. 6-5.) 

    

               Second, “The state Constitution expressly grants Californians a right of privacy.  Protection of informational privacy is the provision's central concern.  .  .  .  The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.^[4]  The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.  A court must then balance these competing considerations.”  (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [cleaned up].)
   
   

               “Legally recognized privacy interests [include] interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’) .  .  .  .”  (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35 (hereafter, Hill).)  “A particular class of information is [sensitive or confidential] when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.”  (Ibid.) 

    

               However, Defendant has not advanced sufficient, competent evidence to establish “a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.”  Thus, the Court cannot find that Defendant entitled to prevent the disclosure of responsive documents based upon her privacy rights.  Again, it is a failure of proof on the part of Defendant. 

    

               Therefore, with respect to Requests for Production of Documents 32 and 60, the Court grants Plaintiffs’ motion, and orders Defendant to produce the “ISO Claim Search” in regard to Request for Production of Documents 32 and to produce Defendant’s cellular telephone records from the date of the incident in regard to Request for Production of Documents 60.

    

   Sanctions

              

   A trial court may sanction a party for engaging in the misuse of discovery, which includes:  failure to respond or submit to an authorized method of discovery; making an evasive response to discovery; making, without substantial justification, an unmeritorious objection to discovery; and making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (See Code Civ. Proc., § 2023.010.)

    

               In addition, Code of Civil Procedure section 2031.310, subdivision (h) provides: “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to a demand, 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.” 

    

               Here, both parties seek monetary sanctions in connection with the motion.  But the Court finds Defendant making, without substantial justification, an unmeritorious objection to discovery and opposing, unsuccessfully and without substantial justification, a motion to compel discovery are abuses of the discovery process, warranting monetary sanctions.  Accordingly, the Court will impose monetary sanctions against Defendant and Defendant’s  counsel of record, Colman Perkins Law Group, in the amount of $1310 which represents five hours of attorney time to prepare the motions, and attend the IDCs and motion hearing, at $250 per hour, plus the filing fee of $60.  With that, the Court denies Defendant’s request for monetary sanctions as unjustified under the circumstances.    

    

   CONCLUSION AND ORDERS

    

   As set forth above, the Court grants Plaintiffs’ motion to compel further responses per Code of Civil Procedure section 2031.310 to Request for Production of Documents 4, 8, 12, 13, 14, 32, 39 and 60, and orders Defendant to produce the responsive documents within 30 days of notice of the Court’s orders. 

    

   Further, the Court orders Defendant and Defendant’s counsel of record, Colman Perkins Law Group, jointly and severally to pay monetary sanctions in the amount of $1310 to Plaintiffs, by and through counsel for Plaintiffs, within 30 days of notice of the Court’s orders. 

    

   Plaintiffs shall provide notice of the Court’s orders and file a proof of service of such.