Judge: Michael Shultz, Case: 23CMCV01152, Date: 2024-07-30 Tentative Ruling
Case Number: 23CMCV01152 Hearing Date: July 30, 2024 Dept: A
23CMCV01152
Maria Espinosa Pacheco v. Target Corporation, Inc., et al.
[TENTATIVE] ORDER GRANTING
[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS; AND
DENYING THE REQUEST FOR IMPOSITION OF SANCTIONS
I.
BACKGROUND
This is a
negligence and premises liability action arising from injuries sustained when
Plaintiff slipped on the floor next to the produce section of Defendant’s store.
Plaintiff
requests an order demanding that Defendant respond to Plaintiff’s request for a
site inspection of Defendant’s video surveillance room, cameras, and such systems.
Defendant refuses to permit an inspection despite Plaintiff’s efforts to meet
and confer.
Defendant argues
the motion is unnecessary because Defendant agreed to permit Plaintiff to perform
a visual inspection and will allow a friction test on the floor. Inspection of
the video room and surveillance cameras is needless because there is no video
of the incident, and none has ever existed, the camera locations have changed
since the incident, and there is no record reflecting the location of the
cameras. Plaintiff wants to inspect the surveillance instruments on the unfounded
theory that Defendant destroyed the surveillance video tape.
In reply,
Plaintiff argues that it is entitled to assess Defendant’s ability to capture
and preserve highly relevant documentary evidence of the source of the spill
leading to the fall.
II.
LEGAL STANDARDS
Plaintiff
is entitled to demand entry into another’s property “that is in the possession,
custody, or control of the party on whom the demand is made, and to inspect and
to measure, survey, photograph, test, or sample the land or other property, or
any designated object or operation on it." (Code
Civ. Proc., § 2031.010.) Even if Defendant maintains that no video exists,
or that none was recorded, Plaintiff is entitled to discover and assess on its own
whether or not those contentions are true.
The
video surveillance cameras, equipment, and recordings are relevant to determine
whether Plaintiff’s incident could have been captured on the date of the
incident. Defendant’s contention that its surveillance room is “secure” does
not limit Plaintiff’s ability to discover relevant facts pertaining to
Defendant’s claimed inability to produce recordings.
Permissible discovery is liberally
construed in favor of disclosure, and the court has wide discretion to grant or
deny discovery. (Emerson
Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.) The scope of discovery construed broadly "’regarding
any matter, not privileged, which is relevant to the subject matter involved in
the pending action’ —even if the testimony will not be admissible at trial—so
long as it “ ‘appears reasonably calculated to lead to the discovery of
admissible evidence.’” (Id. at 1107–1108.)
Defendant did not establish any reason for issuance of a protective order to avoid
the inspection of “private or sensitive” information.
Defendant’s unsuccessful opposition
warrants imposition of sanctions. (Code
Civ. Proc., § 2031.300 (c).) The court finds that six hours to prepare the
motion, review the opposition, prepare the reply, and to appear at the hearing
is reasonable. Plaintiff’s counsel’s hourly rate of $400 per hour is
reasonable. (Brandon C. Shiener declaration, ¶¶ 13-16.)
III.
CONCLUSION
Based on the foregoing, Plaintiff’s
motion is GRANTED. Defendant is ordered to permit inspection of the premises as
described in Plaintiff’s inspection demand. (Shiener decl., Ex. C.) Monetary
sanctions of $2,400 are imposed against Defendant, Target, and its counsel,
Justin Bubion, jointly and severally, and payable to Plaintiff within 10 days.
[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF’S FIRST SET OF REQUEST FOR PRODUCTION OF DOCUMENTS; AND
DENYING THE REQUEST FOR IMPOSITION OF SANCTIONS
I.
BACKGROUND
Plaintiff filed her motion on April 03,
2024, for an order compelling Defendant to provide further responses to the
document request as Defendant’s responses were not code compliant. The parties
met and conferred informally and with the court. On June 14, 2024, the court
ordered the parties to file a joint statement narrowing the issues.
II.
DISCUSSION
Although Defendant had already filed its
opposition to the motion on May 8, 2024, Defendant filed a supplemental
opposition, declaration, and separate statement in further support of its
opposition to which Plaintiff objects as the court required only a joint
statement and did not authorize additional arguments in opposition to the
motion.
While the objection is well taken,
Defendant represented at the informal discovery conference that it could
establish that some of the investigative documents requested were protected
from disclosure by the attorney-client privilege. The court will consider these
supplemental documents for that purpose as discussed further.
Unresolved
requests for production remaining at issue.
Request No. 4. Plaintiff agrees to amend
the request to include the production of documents “substantiating” inspections
made within one hour of the incident. The request is relevant to Defendant’s
duty to conduct reasonable inspections. Sweep sheets are discoverable.
While Defendant maintains that such
documents do not exist, Defendant’s response must be code compliant.
Request No. 6, 7. Plaintiff requests a
blank incident report and other blank documents that are used or that are supposed
to be used in the event of an accident. Defendant will only produce the
incident report at issue. The request is
for blank forms. There is no
communication between attorney or client at issue.
Defendant asserts that these blank forms are
protected from disclosure by the attorney-client privilege and are prepared in
anticipation of litigation. (Defendant’s Supp. Reply filed 7/17/24, 2:12-19.) As
the party claiming privilege, Defendant has the burden of establishing the
preliminary facts necessary to support its exercise, i.e., a communication made
in the course of an attorney-client relationship. (D.I. Chadbourne, Inc.,
at p. 729, 36 Cal.Rptr. 468, 388 P.2d 700; Wellpoint Health Networks, Inc.
v. Superior Court (1997) 59 Cal.App.4th 110, 123, 68 Cal.Rptr.2d 844.) Once
that party establishes facts necessary to support a prima facie claim of
privilege, the communication is presumed to have been made in confidence and
the opponent of the claim of privilege has the burden of proof to establish the
communication was not confidential or that the privilege does not for other
reasons apply." (Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.
Defendant has not established how a blank
form that does not show any “communication” ie., a communication made in the
course of an attorney-client relationship between attorney and client are
privileged. Defendant contends that documents are used for the purposes of
investigating and documenting consumer incidents, which are “later sent” to
Target’s attorneys and insurance company “in the event that there is a claim or
lawsuit.” (Jazzlin Hunter decl., ¶ 6.)
Plaintiff has shown good cause for the
production of blank forms because it permits Plaintiff to discover what facts Defendant
collects other than that disclosed in the Guest Incident Report (“GIR”), (which
Defendant agreed to provide). The purpose of discovery is to “(1) to give
greater assistance to the parties in ascertaining the truth and in checking and
preventing perjury; (2) to provide an effective means of detecting and exposing
false, fraudulent and sham claims and defenses; (3) to make available, in a
simple, convenient and inexpensive way, facts which otherwise could not be
proved except with great difficulty; (4) to educate the parties in advance of
trial as to the real value of their claims and defenses, thereby encouraging
settlements; (5) to expedite litigation; (6) to safeguard against surprise; (7)
to prevent delay; (8) to simplify and narrow the issues; and, (9) to expedite
and facilitate both preparation and trial.” (Ibid., fn. omitted.)" (Davies
v. Superior Court (1984) 36 Cal.3d 291, 299.)
Defendant identified those forms other
than the GIR used in Defendant’s investigation of customer incidents which are
Team Member Witness Statements, Leader on Duty Investigation Report, Electronic
Incident Report (“EIR”), Video Collection Form and Checklist. (Bubion Decl., ¶
10.) Defendant has not established that the blank forms alone contain any information
between and attorney and client; the documents are transmitted once they are
filled out. (Hunter decl., ¶ 7.)
Defendant requests judicial notice of a
minute order issued by the Hon. Michael C. Kelley on June 21, 2022. (Bubion
Supp Decl., Ex. A.) While the court may take judicial notice of the fact that
Judge Kelley acted, the court “may
not use it to prove the truth of the facts found and recited
[citations omitted]. As our Supreme Court explained, judicial notice of
findings of fact does not mean that those findings of fact are true; it means
only that those findings of fact were made [citations omitted]. ‘[N]either a
finding of fact made after a contested adversary hearing, nor a finding of fact
made after any other type of hearing can be indisputably deemed to have been a
correct finding ¼
.’” (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112,
121.) Additionally, the minute order is unpersuasive as it involved a witness’
statement and deposition which the court determined was created in anticipation
of litigation. The forms at issue are blank.
Even if the blank forms can be considered
communications for purposes of the privilege, Defendant has not established the
dominant purpose of the relationship between attorney and client when these
documents are prepared and transmitted to an attorney or insurance carrier. Defendant
asserts that the purpose of the forms are for investigating and documenting
customer incidents. (Hunter decl., ¶ 6.) The relevant inquiry is the employer’s
intent and purpose for taking that report or statement; “if the employer
requires (by standing rule or otherwise) that the employee make a report, the
privilege of that report is to be determined by the employer's purpose in
requiring the same; that is to say, if the employer directs the making of the
report for confidential transmittal to its attorney, the communication may be
privileged.” (D.
I. Chadbourne, Inc. v. Superior Court of City and County of San Francisco
(1964) 60 Cal.2d 723, 737,
citing Solon v. Lichtenstein
(1952) 39 Cal.2d 75, 79, [“it 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.” (Id.
at 732.)
Accordingly, Defendant has not met
its burden of establishing that the blank forms are privileged from disclosure.
Request
9
Plaintiff requested documents of
Defendant’s surveillance system in use at the time of the incident, including
the type of system, the areas covered, policies and procedures regarding
retention, use and destruction of the video, and the identities of the persons
involved in its operation. Defendant refused to produce such documents because
they were irrelevant. Plaintiff is entitled to discover the veracity of
Defendant’s statement that the surveillance video doesn’t exist, and to
discover the circumstances under which the recordings were not retained, or how
or why the cameras were moved and who removed them.
Request
12
Plaintiff requested photographs or other
documents depicting a floor plan. Defendant states it produced a floor plan.
Defendant is required to provide a response that is code compliant.
Request
25
Plaintiff requested documents reflecting
accidents and/or similar incidents of bodily injury to a person involving Defendant’s
floor. Defendant agreed to produce a “loss-run” report limited to three years
before the incident. Plaintiff agrees to the production of the “loss-run”
report which will enable Plaintiff to determine the type of information
Defendant keeps. Defendant shall comply with the request limited to five years
before the incident as Plaintiff requests.
V. CONCLUSION
Defendant has not supported any other “boiler
plate” objections made, nor did Defendant provide the court with the privilege
log purportedly served on Plaintiff. Accordingly, Plaintiff’s motion is
GRANTED. Defendant is ordered to served further, verified, responses without
objection consistent with the court’s ruling within 10 days.
The court declines to impose sanctions as
Defendant had substantial justification for refusing to produce records to the
extent Defendant asserted the attorney-client privilege, although the objection
was not substantiated.