Judge: Michael E. Whitaker, Case: 21STCV33066, Date: 2022-08-18 Tentative Ruling

Case Number: 21STCV33066    Hearing Date: August 18, 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 September 8, 2021, Plaintiff Nune Hovahaanisyan (“Plaintiff”) alleges she was injured after falling because of grapes and other debris on property (store) maintained and operated by Defendant Smart & Final Stores, LLC (“Defendant”).   Plaintiff moves 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:  January 20, 2022

• Responses:  March 23, 2022

• Motion Filed:  May 5, 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 June 22, 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, Plaintiff 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 [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 Christina Azoian, counsel for Plaintiff, 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]  (See Declaration of Christina Azoian, ¶¶ 7-8, Exhibit C.) 

   

              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, Plaintiff has 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. REQUEST FOR PRODUCTION OF DOCUMENTS – NO. 6

    

               In response to Request for Production of Document 6, Defendant objected, in pertinent part, to producing responsive documents on the grounds of the attorney-client privilege and the attorney work product doctrine.  On those grounds, Defendant identified but refused to produce an Incident Report prepared by an employee of Defendant, Jorge Ramirez on September 8, 2019. 

   Defendant further responded that “Said document was prepared at the direction of Responding Party, pursuant to its longstanding policy, for confidential transmission to Responding Party’s attorneys in anticipation of litigation. Said document is being withheld under the stated privileges.”

    

               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.) 

    

               In D. I. Chadbourne, Inc. v. Superior Court , the California Supreme Court addressed whether the attorney-client privilege barred the disclosure of a corporate employee’s statement.  In so doing, the Supreme Court explained that whether or not the statement should be produced depends on the dominant purpose for which the communication originated.  (D. I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 737 [“When the corporate employer has more than one purpose in directing such an employee to make such report or statement, the dominant purpose will control, unless the secondary use is such that confidentiality has been waived”].) 

   The Supreme Court further expounded:

    

   [I]t is well settled that a communication is not protected by the attorney-client privilege, even when made in the course of professional employment, unless the client intends that it be treated in confidence. For it is the client, and not the attorney, who may claim the privilege.  And that which was not privileged in the first instance may not be made so merely by subsequent delivery to the attorney.  When these basic rules are applied to the usual corporate situation, a question arises as to whether the employee who was called upon to make a report or statement intended the same to be in confidence; or, if he had no specific intent, whether he was required by the corporation to make a statement, and (if so) whether the corporation's intent to transmit in confidence to its attorney is sufficient to supply the necessary element of original intent to communicate in confidence?

    

   (Id. at pp. 732–733 [cleaned up].)  To summarize, “[w]here 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.”  (Id. at p. 737; see also Sierra Vista Hosp. v. Superior Court (1967) 248 Cal.App.2d 359 [Incident Report generated by hospital administrator transmitted to hospital’s attorney through the insurance carrier was privileged attorney client communication not subject to disclosure].)

    

               Here, the Court finds that the “Dominant Purpose Test” is applicable to determining whether the Incident Report is covered by the attorney-client privilege and not subject to disclosure.  To meet its burden to prevent disclosure of the Incident Report under the attorney-client privilege, Defendant advances the Declaration of Adrian Ross (“Ross”), who is the National Claim Director for Defendant.  In that declaration, Ross declares:

    

• I have reviewed the Customer Incident Report Form prepared by Smart & 27 Final employee, Jorge Ramirez, prepared in anticipation of this litigation.

   

• Smart & Final is self-insured with excess coverage.

   

• As a self-insured company, these reports are designed, and intended by Smart & Final, to be confidential attorney/client communication for the evaluation and defense of claims arising from incidents alleged to have occurred in Smart & Final Stores.

   

• Smart & Final employees are required by Smart & Final to complete a preprinted Customer Incident Report Form following any accident at a Smart & Final store.

   

• Smart & Final employees are further directed to secure surveillance capturing the incident (if any) and take photographs. These items are produced to Plaintiff's counsel.

   

• The Customer Incident Report Form is intended by Smart & Final and its employees to be confidential. The Customer Incident Report Form contains the following statement: "THIS REPORT IS THE SOLE PROPERTY OF SMART & FINAL STORES LLC: THE INFORMATION CONTAINED IN THIS REPORT IS FOR THE SOLE USE OF SMART & FINAL."

   

• The Smart & Final employee involved in gathering the information regarding any alleged incident is required to complete a pre-printed Customer Incident Report Form and provide a copy of it to Smart & Final's Property & Casualty Claims Supervisor.

   

• Once a lawsuit has been filed in relation to an incident alleged to have occurred at a Smart & Final store, a copy of the Customer Incident Report Form is provided to attorneys defending Smart & Final in litigation arising out of such claims. The Customer Incident Report form is provided to Smart & Final's defense counsel for use in defending litigation arising out of such claims.

Defendant further advances the Declaration of Gregory E. Stone (“Stone”), counsel for Defendant.  Stone states in pertinent part:  “I have been representing grocery stores, among many other types of litigation, since 1989, and in my experience, Incident Reports have been produced to me as defense counsel and identified as privileged documents to be used in anticipation of litigation. This case is no exception.”

            Based upon Ross’s and Stone’s declarations, the Court finds that the Incident Report is a communication “intended for the information or assistance of the attorney in so defending” Defendant.  In other words, the Dominant Purpose of the Incident Report was to transmit information from Defendant, through its employee, to its attorney, Stone.  Therefore, the Court determines that the attorney-client privilege bars the production of the Incident Report.

CONCLUSION AND ORDERS

For the reasons set forth above, the Court denies Plaintiff’s motion to compel further responses to the Request for Production of Documents, Set 1.   Plaintiff shall provide notice of the Court’s ruling and file a proof of service regarding the same.