I. Background 

Plaintiff Glendis Beker (“Plaintiff”) filed this action against defendants The Hertz Corporation (“Hertz”) and Romaine Kirlew (“Kirlew”) for injuries arising from an automobile collision. 

Plaintiff moves the Court for an order compelling Hertz to provide further responses to Request for Production of Documents (“RPDs”), set one, as to Nos. 5 and 7, without objections.  

Hertz opposes the motion, and Plaintiff filed a reply.  

II. Procedural Requirements 

A motion¿to compel further responses to requests for production “shall be accompanied by a meet and confer declaration.”¿ (Code Civ. Proc. § 2031.310(b)(2).)¿ The 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 Court finds Plaintiff has met the requirements of Code Civ. Proc. § 2031.310(b)(2).  

Per the Eight Amended Standing Order for Procedures in the Personal Injury Hub Courts effective October 10, 2022 (Filed September 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). PI Hub Courts may deny or continue a Motion to Compel Further Responses to Discovery if parties fail to schedule and complete an IDC before the scheduled hearing on a Motion to Compel Further Responses to Discovery.” Additionally, “Reserving or scheduling an IDC does not extend the time to file a Motion to Compel Further Discovery Responses.” (Ibid.) 

Here, the Court finds Plaintiff complied with the Standing Order in scheduling and attending the IDCs, in which this issue was not resolved.  

A motion to compel further responses requires a separate statement.  (Cal. Rules of Court, rule 3.1345(a).) Plaintiff properly filed separate statements for the motion to compel further. 

III. Motion to Compel Further Responses 

CCP § 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:  

(1) A statement of compliance with the demand is incomplete.¿ 

(2) A representation of inability to comply is inadequate, incomplete, or evasive.¿ 

(3) An objection in the response is without merit or too general.¿ 

Request for Production No. 5: “Any and all DOCUMENTS, IMAGES and ELECTRONIC RECORDS constituting reports RELATING TO the COLLISION, including accident reports, incident reports, and traffic collision reports.” 

Request for Production No. 7: “Any and all DOCUMENTS, IMAGES and ELECTRONIC RECORDS constituting statements from any and all parties to this lawsuit RELATING TO the COLLISION, whether written, audio and/or video recorded.” 

Hertz objected on various grounds, including attorney-client privilege and attorney work product, and responded identically to both requests as follows: "Responding party will comply with this request and produce the Traffic Collision Report. Responding Party identifies, but does not produce, the Vehicle Incident Report defendant Romaine Kirlew prepared as it was prepared in anticipation of litigation and thus, is privileged." 

Plaintiff argues that the Vehicle Incident Report is not privileged, because Kirlew is not an employee of Hertz. Plaintiff avers Kirlew documented the subject collision on the day of the incident, and that this document did not become privileged just because it was relayed to an attorney. 

In opposition, Hertz contends that the Report was prepared by Kirlew in anticipation of litigation, and transmitted to Hertz, and that statements given by an insured to the insurance carrier in anticipation of litigation is protected by the attorney-client privilege.  

In reply, Plaintiff asserts that Hertz has not met its burden establishing the preliminary facts necessary to suggest privilege. Plaintiff contends that the incident report form, a copy of which can be found through Hertz’s site, and Hertz’ rental car article online, suggests that the purpose of the form was to determine the amount of property damage and whether the renter may be required to pay out of pocket expenses. Plaintiff argues there is no evidence that the dominant purpose of the incident report was to be used in anticipation of litigation. 

Here, Plaintiff has established good cause for the incident report prepared by Kirlew arising from the automobile incident. Hertz thus carries the burden of establishing the existence of the attorney-client privilege. (Zimmerman v. Sup. Ct. (2013) 220 Cal.App.4th 389, 402 [party resisting discovery must establish the existence of the privilege].) The party resisting discovery bears this burden because the attorney-client privilege is “in derogation of the truth-finding process.” (United States v. ChevronTexaco Corp. (N.D. Cal. 2002) 241 F.Supp.2d 1065, 1070.) The Court finds that Hertz has submitted little by way of evidence to support its contention that the Vehicle Incident Report was produced in anticipation of litigation. Hertz’s counsel’s declaration provides, in a conclusory manner, that the document is privileged without providing a declaration from anyone with knowledge of the incident report to attest to its specific created purpose. Consequently, due to the lack of supporting evidence from Hertz, the Court is unable to determine the privileged status of the Vehicle Incident Report. For this reason, Hertz has failed to meet its burden of establishing that the attorney-client privilege applies to the report at issue prepared by Kirlew.  

Therefore, Plaintiff’s motion to compel further as to RPDs, set one, Request Nos. 5 and 7, are GRANTED as to the Vehicle Incident Report prepared by Kirlew. Hertz is ordered to provide further responses to the above requests within ten (10) days. 

IV. Sanctions 

Sanctions are mandatory against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response. (CCP §2031.310(h).)  Plaintiff requests $1,560 for 3 hours in preparing the motion, 1 hour to prepare a reply, and 1 hour to appear, for a total of 5 hours of attorney time at a rate of $300 per hour. Additionally, Plaintiff requests the motion filing fee of $60, as costs.  

Sanctions imposed against Hertz and Hertz’ counsel, jointly and severally. Hertz and/or its counsel are ordered to pay sanctions to Plaintiff, by and through his attorney of record, in the total amount of $1,560, within twenty (20) days.     

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 23rd day of February 2024