Judge: Michael E. Whitaker, Case: 24SMCV00111, Date: 2024-10-16 Tentative Ruling

Case Number: 24SMCV00111    Hearing Date: October 16, 2024    Dept: 207

TENTATIVE RULING

MOTION

This is a premises liability case arising from allegations that Plaintiff Noshin Abdi (“Plaintiff”) fell and became injured while on Defendant Marble & Tile USA, Inc.’s (“Defendant”) premises. 

Plaintiff now moves for an order compelling Defendant to provide a further document production to Demand for Production (set 1) (“RPD”).  Defendant opposes the motion and Plaintiff replies.

PROCEDURAL REQUIREMENTS

            Timeliness of Motion

            A notice of motion to compel further responses must be given within 45 days of the service of the responses, or any supplemental responses, or on or before any specific later date to which the parties have agreed in writing. (Code Civ. Proc., §§ 2030.310, subd. (c).) Failure to file such a motion within this time period constitutes a waiver of any right to compel further responses to interrogatories or requests for production of documents. (Ibid.)

            The body of the motion indicates the RPD were served on March 13, 2024 (see Motion at p. 2:12).  The Declaration of Emanuel Abrishami indicates Defendant’s responses were served on March 18, 2024. (Abrishami Decl. ¶ 5.)  The parties subsequently agreed to extend Plaintiff’s deadline to move to compel to August 26, 2024.  (Abrishami Decl. ¶ 12.)  The Motion was timely filed on August 22, 2024.

            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.

            Plaintiff has provided a separate statement with respect to the RPD in compliance with the Rules of Court.

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.     RPD No. 2

Plaintiff seeks the following:

DEMAND FOR PRODUCTION NO. 1: Any and all DOCUMENTS that refer to, evidence or reflect a statement taken by any party, person and/or witness to the INCIDENT referred to in the complaint or from any persons with knowledge of relevant facts regarding the INCIDENT referred to in the complaint (written statements given by percipient witnesses are not work product (Rodriguez v. McDonel Douglas Corp., (1978) 87 Cal. App. 3d 626)).

(Plaintiff’s Separate Statement.)

            Defendant responded as follows:

Objection. This demand violates the attorney-client, attorney work product and/or work product privileges as it attempts, or potentially seeks, to discover notes, memoranda, strategy and confidential reports of this responding party’s attorney prepared in the course of litigation or to defend expected litigation by said attorney’s agents, representatives, employees and investigators. Responding party will not produce any document containing communications between responding party and its attorneys (or anyone acting on counsel's behalf) as such are protected by the attorney client privilege. Responding party will not produce any document that contains its attorney's impressions, conclusions, opinions, or legal research or theories on the grounds that they are protected by the attorney work product privilege.

This demand seeks documents that are protected from disclosure by the attorney work product privilege (as to the identity of witnesses). See Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214. Additionally, this demand seeks documents that are protected from disclosure by the attorney-client privilege (as to Defendant’s statements). See Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424. Further, the definition of “DOCUMENTS” is overbroad. Without waiving such objection and the right to modify, amend or supplement this response: Responding Party is only in possession of the privileged statement of Responding Party’s employee, Ana Hernandez, a copy of which will not be produced.

Further, Plaintiff was interviewed by telephone on June 17, 2022 with Plaintiff’s counsel on the call. Information in connection with the interview is already in the possession of Plaintiff and her attorney.

(Plaintiff’s Separate Statement.)

            Plaintiff moves to compel production of the referenced statement of Ana Hernandez on the grounds that the attorney-client and work product privileges did not attach because Ana Hernandez is an “independent witness,” and the “dominant purpose” of her statement to Defendant’s insurer was not intended as a confidential communication to lawyers, but rather as a factual statement to the claims adjuster.

            Defendant opposes, arguing that the single and dominant purpose of obtaining the recorded statement from Ana Hernandez was to transmit the statement to the adjuster’s attorneys in anticipation of litigation.

            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].)

            Similarly, 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”].) 

            Here, the Court finds that the “Dominant Purpose Test” is applicable to determining whether the recorded statement is covered by the attorney-client privilege and not subject to disclosure.  To meet its burden to prevent disclosure of the statement of Ana Hernandez under the attorney-client privilege, Defendant advances the Declaration of Marie Rose (“Rose”), who is a claims adjuster for Travelers Insurance.  In that declaration, Rose declares:

2. I am the current claims representative assigned to the above referenced claim and if called upon to testify under oath as to the truth of the matters stated herein, I could and would competently do so.

3. On or around February 8, 2022, Plaintiff claims to have been injured while on the insured’s business premises located at 11266 Santa Monica Blvd., Los Angeles, CA 90025.

4. The incident involving Plaintiff was reported to Travelers on or around March 8, 2022.

5. As a result of this incident, and at the direction of counsel, Marble & Tile USA’s former employee, Ana Hernandez provided a recorded statement to a former Travelers employee on or around March 14, 2022.

6. Taking recorded statements of witnesses is a general practice of Travelers, done at the direction of Travelers General Counsel, when incidents occurred that give rise to a claim. The statements are taken to obtain legal advice from counsel.

7. The dominant and single purpose of obtaining the recorded statement from Ana Hernandez was to transmit the recording to the attorneys designated by Travelers for use in anticipation of litigation.

8. The recorded statement of Ana Hernandez was intended to be confidential and not to be used in any way by Marble & Tile USA for investigative or other business purposes.

(Rose Decl. ¶¶ 2-8.)  Thus, at the direction of Defendant’s insurer’s counsel, Ana Hernandez gave a recorded witness statement to a “former Travelers employee.” 

            Based upon the Rose declaration, the Court finds that the recorded statement of Ana Hernandez, Defendant’s former employee, is a communication “intended for the information or assistance of the attorney in so defending” Defendant.  In other words, the Dominant Purpose of the recorded statement was to transmit information from Defendant (through its former employee Ana Hernandez) to its attorney.  Therefore, the Court determines that the attorney-client privilege bars the production of the recorded statement of Ana Hernandez.

3.     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. (Code Civ. Proc., § 2023.010.)

In addition, Code of Civil Procedure section 2030.300, subdivision (d) 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 interrogatories, 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, because the Court has determined that the recorded statement at issue is protected from disclosure by the attorney-client privilege, monetary sanctions are not appropriate. 

CONCLUSION AND ORDER

            Because the Court finds the recorded statement of Ana Hernandez protected by the attorney-client privilege, the Court denies Plaintiff’s motion to compel in its entirety.  Further, because the Court denies Plaintiff’s motion to compel, the Court similarly denies Plaintiff’s request for monetary sanctions. 

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

DATED:  October 16, 2024                                                   ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court