Judge Michelle C. Kim, Case 22STCV09412 2023-05-15 Tentative Ruling

Plaintiff, Tanya Maida (“Plaintiff”), filed this action against Defendant, Trader Joe’s Company, Inc. (“Defendant”) for negligence.

On April 12, 2023, Plaintiff filed motions to compel further responses to Demand for Production of Documents, Set Two and Special Interrogatories, Set Three. On April 19, 2023, the parties participated in an Informal Discovery Conference (“IDC”) concerning these discovery requests, which included requests for contact information of employees of Defendant who witnessed Plaintiff’s alleged injuries and for certain documents, such as an incident report prepared by an employee of Defendant and emails to a certain account belonging to Defendant. The issues regarding Special Interrogatories, Set Three were resolved at the IDC, but two requests from Demand for Production of Documents, Set Two were not.

On May 2, 2023, Defendant filed oppositions to both of Plaintiff’s discovery motions. On May 8, 2023, Plaintiff filed a reply, but only in response to Defendant’s opposition to the motion to compel further responses to Demand for Production of Documents, Set Two.

CCP § 2030.300(a) also provides that On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

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:

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

The Court notes that the parties had resolved their dispute concerning Special Interrogatory Numbers 29 and 34 from Plaintiff’s Special Interrogatories, Set Three at the IDC on April 19, 2023. (Plaintiff’s Notice of Outcome re IDC, ¶1 (4/26/2023); Defendant’s Response to Plaintiff’s Notice of Outcome re IDC (5/2/2023), ¶ 1.) Nevertheless, for some unexplained reason, Plaintiff never took the motion off-calendar, even after advising Plaintiff’s counsel that Plaintiff would be taking it off-calendar, (see Free Decl., ¶¶ 5-6, Ex. C). Plaintiff also provided no reply to Defendant’s opposition to Plaintiff’s motion to compel further responses, which further confirms that the motion was no longer necessary. Accordingly, the Court will deny Plaintiff’s motion to compel further responses to Special Interrogatories, Set Three, Interrogatory Numbers 29 and 34 as moot.

The Court further agrees with Defendant that monetary sanctions are appropriate against Plaintiff and Plaintiff’s counsel for their failure to take the motion to compel further responses to Special Interrogatories, Set Three, thereby forcing Defendant to unnecessarily oppose the motion. The Court will award Defendant the full $1,350.00 requested. Plaintiff and Plaintiff’s counsel will be ordered to direct such payment to Defendant’s counsel within 20 days of the date of this order.

The Court again notes that the only remaining discovery requests at issue are Demand Numbers 31 and 41 from Plaintiff’s Demand for Production of Documents, Set Two. Defendant noted in its opposition that these were the only remaining discovery requests in dispute following the April 19, 2023 IDC and Plaintiff’s reply does not dispute this. Additionally, Defendant indicated in its May 2, 2023 Response to Plaintiff’s Notice of Outcome re Informal Discovery Conference that it would produce documents in response to the other discovery requests. (Defendant’s Response to Plaintiff’s Notice of Outcome re IDC (5/2/2023), ¶¶ 4-5).

Plaintiff contends that Defendant’s objections to this request are meritless and that Defendant is only trying to obstruct Plaintiff’s discovery efforts. Plaintiff contends the request is not vague, ambiguous, overbroad, or unduly burdensome because the “SOS Report” is a document to which Defendant’s person most knowledgeable, i.e., Greg Radisich, testified during a deposition that completed following Plaintiff’s alleged injury and sent up the chain of command to the corporate office and that it was not submitted to any attorneys. Plaintiff also contends that the objections of confidentiality and proprietary information are not applicable as Mr. Radisich testified that the document merely contains questions relating to the incident investigation.

Plaintiff further contends that Defendant’s objection based on the request having been previously propounded is without merit, as Plaintiff states that this is the first time it has requested the “SOS Report” and that the request was made after Plaintiff learned of its existence. Plaintiff argues that if these privileges do apply, Defendant needs to provide a proper privilege log, as the one it has provided does not provide sufficient or accurate information to assess the assertion of the privilege. Plaintiff contends that Defendant’s claim the documents were prepared in anticipation of litigation is also without merit considering Mr. Radisich’s deposition testimony to the contrary. Plaintiff also contends that the SOS Report should be produced because it would contain information that is not otherwise readily available for Plaintiff to investigate.

In opposition, Defendant contends that the SOS Report is a document prepared in anticipation of litigation, which falls under the attorney-client privilege. More specifically, the SOS Report was created by an employee of Trader Joe’s during the normal course of business after and as a result of Plaintiff’s alleged injuries, and was created on a pre-made computer form with the expectation that it would be maintained in confidence with the predominant or dominant purpose of assisting Defendant in anticipation of litigation.

In reply, Plaintiff contends that on May 2, 2023, Defendant produced a blank copy of its incident report. The document contains nothing on it to indicate that it is confidential, but instead contains basic questions surrounding the incident. It also does not indicate who can or should author the report, to whom and where it should be directed, or what it is going to be used for, and contains no section for Defendant’s version of events or statements.

The Court finds that the SOS Report is not subject to the attorney-client privilege as a document prepared in anticipation of litigation. While the document was prepared by an employee in the ordinary course of business, Defendant has not provided evidence to show that it directed the SOS Report be prepared for confidential transmission to its attorneys. (See D.I. Chadbourne, Inc. v. Superior Court of City and County of San Francisco (1964) 60 Cal.2d 723, 709.) In fact, Defendant expends multiple pages discussing the law on this issue, but provides very few facts to support its position, and that which it has provided is unpersuasive. Mr. Radisich also testified that the SOS Report is not filled out and sent to attorneys, but rather it is sent to risk management at the corporate office. (Depo. Radisich, 96:13-23.) Accordingly, the Court will grant the motion as to Demand Number 31.

Plaintiff contends Mr. Radisich testified that any emails relating to Plaintiff’s alleged injuries would be sent to and from the email address of 44@traderjoes.com, which would obviously contain relevant information. Mr. Radisich purportedly testified that employees use this email address to communicate information to Defendant’s corporate office and should be subject to attorney-client privilege, and if so, then Defendant should provide a privilege log.

Defendant contends that any correspondence responsive to this request would have been sent by store employees in anticipation of litigation to Claims and/or Risk Management, and would thus constitute attorney-client communications.

In reply, Plaintiff contends that emails are relevant because they contain only internal emails between employees and the corporate office.

The Court finds that Plaintiff’s request as worded is sufficiently broad to potentially encompass attorney-client privileged communications. However, it also appears that there could be communications between employees and other persons who are not attorneys at Defendant’s corporate office regarding the incident in question and would therefore not be attorney-client privileged communications. The Court therefore will grant the motion as to Demand Number 41 with the condition Defendant provide Plaintiff with a fully compliant privilege log for any attorney-client privileged communications or work product.

The Court denies Plaintiff’s request for monetary sanctions, finding that Defendant acted with substantial justification in opposing the motion.

Based on the foregoing, Plaintiffs’ motion to compel further responses to Special Interrogatory Numbers 29 and 34 from Plaintiff’s Special Interrogatories, Set Three are DENIED as moot. Defendant’s request for monetary sanctions in the amount of $1,350.00 is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to direct such payment to Defendant’s counsel within 20 days of the date of this order.

Plaintiff’s motion to compel further responses to Demand Numbers 31 Plaintiff’s Demand for Production of Documents, Set Two is GRANTED. The motion is also granted as to Demand Number 41 the condition Defendant provide Plaintiff with a fully compliant privilege log for any attorney-client privileged communications or work product. Plaintiff’s request for monetary sanctions is DENIED.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Hon. Michelle C. Kim

Judge of the Superior Court