Judge: Michael E. Whitaker, Case: 23SMCV00873, Date: 2024-03-20 Tentative Ruling

Case Number: 23SMCV00873    Hearing Date: March 20, 2024    Dept: 207

TENTATIVE RULING

MOTION

            This lawsuit arises out of a dispute concerning alleged construction defects causing water intrusion into Plaintiff Albert Saman’s (“Plaintiff”) condominium unit and other units in the condominium complex.  Plaintiff has sued Defendant Rahul Dhawan (“Defendant”), the prior owner of the unit, who sold the unit to Plaintiff.  The Homeowners’ Association (“HOA”) settled with the developer in pre-lawsuit negotiations.  As part of that negotiations, the HOA’s attorney hired AVELAR, an engineering firm, which conducted an investigation of the condominium complex. 

            Plaintiff subpoenaed Eric Archuletta (“Archuletta”), an AVELAR employee, for fact witness deposition testimony and for documents related to that investigation.  At the direction of the HOA’s attorney, Archuletta provided only a limited report concerning Plaintiff’s unit and testified only as to Plaintiff’s unit and the general fact of the HOA’s retention of AVELAR.

            Plaintiff now moves to compel further responses and documents concerning AVELAR’s investigation of the building generally.  Plaintiff’s motion is unopposed.

ANALYSIS  

1.      Legal Standards

“In California, discovery may be obtained from a nonparty through an oral deposition, a written deposition, or a deposition for the production of business records and things. (Code Civ. Proc., § 2020.010, subd. (a).)” (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1030 (“Board of Registered Nursing”).) “To pursue the deposition of a nonparty, a party must generally serve a deposition subpoena.” (Ibid.).)

“‘A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.’ [Citation.]” (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1030

“‘If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.’ (Code Civ. Proc., § 2025.480, subd. (a).)” (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1031.) “‘[D]iscovery conducted by way of a business records subpoena is a “deposition.”’ [Citation.]” (Id. at pp. 1031-1032.) “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein,

or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1.)

Plaintiff moves to compel testimony and documents regarding what work Archuletta and AVELAR did for the HOA, including which of the complaints in the notice of claim Archuletta evaluated and whether Archuletta heard or reported popping noises during his investigation of the property, as well as Archuletta’s expert opinion about his recommended remediations for the popping noises, why there were so many water intrusion issues, and whether the curtainwall at the building needs to be replaced.  (Lowenstein Decl. at pp. 4-6.)

            Plaintiff contends the HOA made two objections to the requested testimony and documents: attorney work-product doctrine and the mediation privilege.  The Court analyzes each in turn.

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).)

            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”].) 

            Plaintiff argues that he will be unfairly prejudiced if denied the requested discovery because Archuletta’s report on the building’s condition provides necessary factual context for the settlement between the HOA and the developer, which is not included in the settlement agreement or notice of claims, and which is necessary for Plaintiff to prove his claim that Defendant was mistaken about the factual condition of the building when he sold the unit to Plaintiff.  Plaintiff further contends that the HOA is a fiduciary to Plaintiff, a dues-paying member, and therefore the HOA owes a duty not to conceal facts regarding construction defects in the building.  (See Kovich v. Paseo Del Mar Homeowners’ Assn. (1996) 41 Cal.App.4th 863, 867.)

            The Court finds that the HOA in failing to oppose the motion has not met its burden to establish that the work-product doctrine applies to forestall Archuletta from answering the subject questions posed, or producing documents requested, by Plaintiff.  In particular, the neither counsel for the HOA nor counsel for Archuletta has persuaded this Court that disclosure would reveal an attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of an attorney's industry or efforts (qualified privilege). 

As such, the Court determines that the HOA’s assertion of the attorney work-product doctrine to be without merit. 

3.      Mediation Privilege

            Evidence Code section 1119 provides:

Except as otherwise provided in this chapter:

(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.

Evidence Code, section 1120, subdivision (a) provides:

(a) Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.

Plaintiff contends that the HOA’s counsel retained AVELAR to advise them of the condition of the building, which ultimately informed the March 2021 Notice of Claims, which ultimately resulted in a pre-suit settlement between the HOA and the developer.

Notwithstanding, the Court notes that the HOA has not opposed the motion and in turn has not met its burden to establish that the mediation privilege applies to prevent Archuletta from answering the subject questions posed, or producing documents requested, by Plaintiff.  (See, e.g., Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137 [The party advancing the mediation privilege has the burden to show that the discovery sought is protected].)   

As such, the Court determines that the HOA’s assertion of the mediation privilege to be groundless. 

            CONCLUSION AND ORDER

            The Court grants Plaintiff’s Motion to Compel Further Testimony and Production of Documents, and orders Archuletta to appear at a second deposition session and to provide additional testimony and documents to Plaintiff per the subject subpoena, within 30 days of notice of the Court’s order. 

            Plaintiff shall provide notice of the Court’s orders and file a proof of service regarding the same. 

DATED:  March 20, 2024                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court