Judge Michael E. Whitaker, Case 21STCV37463 2023-03-14 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21STCV37463, Date: 2023-03-14 Tentative Ruling

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.

In the complaint filed on October 8, 2021, Plaintiff Chris Laurence Adams (“Plaintiff”) allege he was injured after a vehicle owned and operated by Defendant Rigoberto Fregoso (“Defendant”) collided with Plaintiff’s vehicle. Plaintiff moves the Court for an order compelling Defendant to provide further responses to the following discovery request:

Defendant opposes the motion. Plaintiff replies. On January 30, 2023, the Court continued the hearing on the motion and ordered Defendant to prepare and serve a privilege log. [1] In addition, the Court ordered the parties to file and serve supplemental memoranda of points and authorities which were filed and considered by the Court.

Per the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts Effective October 10, 2022 [Filed 09/20/2022], ¶ 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).”

Here, the parties complied with the Standing Order in scheduling and attending the IDC on October 17, 2022.

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.

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 Gilda Pashai, 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.[2]

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

“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].)

· REQUEST FOR PRODUCTION NO. 3 Please provide a complete copy of any and all statements given by any witness and/or any other parties involved in the INCIDENT to any insurance company, their agents, investigators, adjusters, attorneys, employees, and/or representatives relating, REFLECTING, and/or CONCERNING this INCIDENT, including any recorded, written, transcribed, dictated or videotaped statements.

· RESPONSE TO REQUEST FOR PRODUCTION NO. 3 Objection. This request is overbroad, unduly burdensome and harassing in that it is not reasonably limited in time and scope and seeks information equally available to Propounding Party. It also violates the attorney work product privilege with no good cause shown for disclosure. Without waiving said objections, Responding Party agrees to produce a copy of the Traffic Collision Report. [3]

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.)

Defendant contends in the opposition that documents which may be responsive to the subject request violates the attorney-client privilege. However, the Court finds that Defendant failed to assert an objection based on the attorney-client privilege in his response to the subject request. As such, Defendant has waived any objection to Request for Production of Documents 3 on the grounds of the attorney-client privilege. (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 274 [“We conclude that failure to include an objection expressly based upon attorney-client privilege in the initial response results in waiver of the attorney-client privilege”].)

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

(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).)

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 statement is in fact the work product of his counsel. But other than a “privilege log” set forth in Defendant’s “Supplemental Opposition and Privilege Log per Court Order for Motion to Compel,” Counsel for Defendant Michael J. Lowell (“Lowell”) has not advanced any evidence, including declarations, establishing that the work product doctrine applies. Further, Lowell’s declaration submitted as part of the opposition is devoid of any facts or information from which this Court can determine that the “Statement of Defendant” is the work product of counsel. In particular, Lowell does not state that the recorded statement was obtained at his behest as counsel for Defendant. In short, Defendant has not demonstrated that the recorded statement is the work product of his counsel, warranting protection, absolute or qualified.

Based upon the record, the Court finds that the attorney work production doctrine does not apply to preclude the disclosure of the recorded statement in response to Request for Production of Documents 3. Defendant has failed to proffer sufficient, competent evidence to establish that the doctrine thwarts Plaintiff’s efforts to obtain the recorded statement. This is a simple failure of proof on the part of Defendant.

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, Law Offices of Cullins & Grandy LLP, in the amount of $1811.65 which represents seven hours of attorney time to prepare the moving, reply and supplemental papers, and attend the IDC and motion hearings, at $250 per hour, plus the filing fee of $61.65. With that, the Court denies Defendant’s request for monetary sanctions as unjustified under the circumstances.

As set forth above, the Court grants Plaintiff’s motion to compel further responses per Code of Civil Procedure section 2031.310 to Request for Production of Documents 3, and orders Defendant to produce all responsive documents, including the statement of Defendant obtained on May 6, 2021, within 30 days of notice of the Court’s orders.

Further, the Court orders Defendant and Defendant’s counsel of record, Law Offices of Cullins & Grandy LLP, jointly and severally to pay monetary sanctions in the amount of $1811.65 to Plaintiff, by and through counsel for Plaintiff, 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.

[1] Code of Civil Procedure section 2031.240 provides that “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Code Civ. Proc., § 2031.240, subd. (c)(1).) “The purpose of a privilege log is to provide a specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production.” (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1125 [cleaned up].)

[2] The Court notes that the Declaration of Michael J. Lowell, counsel for Defendant, is devoid of any reference to complying with the Discovery Act regarding Defendant’s efforts to meet and confer with counsel for Plaintiff to informally resolve the discovery disputes.

[3] “The objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.) The California Supreme Court further noted that “[s]ome burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id. at p. 418.) Here, Plaintiff has not made an adequate showing that responding to Request for Production of Documents 3 is burdensome. Moreover, Defendant has failed to address in his opposition papers the objections of overbroad and harassing, and thus the Court finds such objections to unmeritorious.

DEPARTMENT	32
HEARING DATE	January 30, 2023 – CONTINUED TO MARCH 14, 2023
CASE NUMBER	21STCV37463
MOTION	Motion to Compel Further Responses To Request for Production of Documents, Set 1; Request for Monetary Sanctions
MOVING PARTY	Plaintiff Chris Laurence Adams
OPPOSING PARTY	Defendant Rigoberto Fregoso