Judge Mitchell L. Beckloff, Case Number: 23STCP00988, Date: 2024-03-22 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP00988, Date: 2024-03-22 Tentative Ruling

Petitioner, Three Group, Inc., moves for an order compelling Respondent, the City of Los Angeles, to provide supplemental privilege logs within ten days of the hearing. Alternatively, Petitioner requests the City be required to produce the documents withheld under unsubstantiated claims of privilege. Petitioner also seeks monetary sanctions for the City’s alleged misuse of the discovery process. The City opposes the motion.

The City’s request for judicial notice is GRANTED pursuant to Evidence Code sections 452, subdivision (d) and 453.

Petitioner’s request for judicial notice is GRANTED pursuant to Evidence Code Sections 452, subdivisions (c), (d) and 453.

On March 28, 2023, Petitioner filed its Verified Petition for Writ of Mandate and Complaint for Declaratory Relief against the City. The petition seeks to enforce provisions of the California Public Records Act (CPRA), Government Code section 7921.000. Through the CPRA, Petitioner sought records, documents, and correspondence relating to (1) 1433 North La Brea Avenue in Los Angeles and (2) the quasi-judicial proceedings pending before the Nuisance Abatement Revocations Unit in the Office of Zoning Administration of the Los Angeles City Planning Commission.

Pursuant to Code of Civil Procedure section 2031.240, subdivision (c)(1), “[i]f an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Code Civ. Proc., § 2031.240, subd. (c)(1).)

In Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1121 (Catalina), the court held:

When confronted with a deficient privilege log that fails to provide the necessary information to rule on attorney-client and work product objections, a trial court may order the responding party to provide a further privilege log that includes the necessary information to rule on those objections, but may not order the privileges waived because serving a deficient privilege log, or even failing to serve a privilege log, is not one of the three statutorily authorized methods for waiving the attorney-client privilege.

The court may also impose monetary sanctions against the responding party for providing a deficient privilege log. (Ibid.)

“[A] privilege log typically should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document’s date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted.” (Id. at 1130.)

Petitioner argues the City has not provided sufficient information to substantiate its claims of privilege. Petitioner reports “[t]he best evidence of the inadequacy of the City’s Privilege Logs are the Logs themselves.” (Reply 2:2.)

At issue are three privilege logs provided by the City to Petitioner in response to certain discovery requests—the withheld privilege log (Consoli-Tiensvold Decl. Exh. N), the redacted privilege log (Consoli-Tiensvold Decl. Exh. O) and the supplemental redaction/privilege log. (Consoli-Tiensvold Decl. Exh. P.)

Petitioner contends the City must supplement its withheld privilege log to allow it and the court to evaluate claims of attorney-client privilege for purposes of compliance with requests for production made by Petitioner. (See Code Civ. Proc., § 2031.240, subd. (c)(1).) Petitioner alleges the withheld privilege log suffers from a number of deficiencies. To wit,

· it provides no substantive description of the documents only describes the documents as either “one email,” “one email with attachments,” or “one email thread,” then states “PMK #1 and #3; Demand #2,” as description of the content of the email;

· the capacity and title of the individuals who authored, sent, or received each allegedly privileged document is not described and merely identifies the individuals as with the City;

· it does not identify who sent, received and was copied on the withheld email;

· there is insufficient specific information provided about email threads such as the number of emails in the thread, individuals involved in the communications and the privilege claimed for each email within a thread;

· it does not indicate the City withheld any documents in response to request two in the request for production of documents (PMK 2) related to a deposition of the person most knowledgeable (documents related to procedures to search pursuant to the CPRA).

Petitioner contends the City must also supplement its redaction privilege log for the same reasons. (See Code Civ. Proc., § 2031.240, subd. (c)(1).) Petitioner alleges the redaction privilege log fails to provide sufficient preliminary facts to demonstrate any privilege applies to the redactions. Petitioner advises the redaction privilege log merely sets forth page numbers and a generalized basis for the redaction—“Redacted portions contain summary and excerpt of [attorney-client privilege],” “Redacted portions contain summary of or reveal [attorney-client privilege],” or “Redacted portions contain excerpt of ACP.” The redaction privilege log does not indicate (1) the communication involved contained legal advice where the attorney was merely copied on a communication, (2) the capacity of the individuals involved in the communication, and (3) why documents related to Petitioner’s CPRA request are non-responsive.

Petitioner also claims the supplemental privilege redaction log also is “utterly devoid of any information that would allow Petitioner to assess the City’s claims of privilege and suffer[s] from the same deficiencies as the Withheld Privilege Log.” (Memo 10:16-18.)

The City asserts a number of arguments in its defense. First, it contends Petitioner has raised issues the parties did not discuss during meet-and-confer efforts undertaken in advance of requesting the court to resolve the parties’ discovery dispute. Second, the City argues it has met its discovery obligation with the privilege logs. The City reports it provided “more than adequate information” (Opposition 12:3) with six categories of information in the logs:

(1) document date; (2) sender; (3) recipient; (4) document description; (5) description of content; and (6) privilege asserted.

The City also explains it provided an information key at the end of the withheld privilege log to assist with interpreting the log. The City’s references to “PMK #1” and “PMK #2” or “DEMAND #2” are specific references to the discovery requests made by Petitioner.

As to the preliminary facts revealed by the logs, the City notes the logs show all of the email communications were made only between the attorney and client. The logs also show the content of the emails (and email threads) relate to the City’s actions in response to Petitioner’s CPRA request, and the City’s search for responsive documents. The City asserts it is not required to describe attachments to email communications.

The redaction logs, according to the City, establish privilege because the City’s employees communicated with the City’s attorneys as they searched for responsive documents related to Petitioner’s CPRA request and the petition.

This court has presided over this matter since its inception. The court has spent significant time with the parties attempting to collaboratively resolve their discovery dispute. In the court’s view, the discovery dispute is not particularly complex and is relatively straightforward. While the parties may each have legal authority to support their position, reasonable minds should have prevailed in order move this litigation forward.

To the extent the City contends Petitioner did not sufficiently meet and confer—or did not sufficiently discuss issues during those meetings—the court finds Petitioner met its meet-and-confer obligation under the circumstances. The evidence supports a finding the parties—by themselves and with the court—actively attempted to resolve their discovery issues. Moreover, given the impasse and protracted discussions further meet and confer would likely not have resulted in any further resolution of issues; the court and parties have been discussing discovery problems since the first trial setting conference in July 2023. As it is, through the meet and confer process, the parties have created a focused issue for resolution by the court.

The court finds the withheld privilege log, the redaction privilege log, and the supplemental redaction privilege log are deficient. The court cannot determine the City’s privilege claims on the information provided in the privilege logs. (See Code Civ. Proc., § 2031.240, subd. (c)(1).) The information provided in the logs is inadequate to assist in any substantive evaluation of the privilege claims.

First, it is clear LN (Deputy City Attorney Linda Nguyen) or SK (Deputy City Attorney Soraya Kelly) are senders and/or recipients of all email communications withheld. While the capacity of other senders/recipients would ordinarily be required (see Catalina, supra, 242 Cal.App.4th at 1130), the information the City provided about senders and recipients (City employees) is sufficient given the context—communications between deputy city attorneys and the City’s employees are within the sphere of attorney/client communications. Whether a particular City employee works in building and safety or law enforcement would not inform on whether the privilege is properly asserted. Further, the orders made herein should sufficiently advise Petitioner and the court of the factual basis for the privilege claim without the capacity of a particular City employee.

Second, the court agrees with Petitioner on the issue of the attachments to email communications. There must be some information provided in the privilege log about the nature of the attachment to establish sufficient facts to establish that particular attachment is privileged. That the attachment is included as part of an email string between a Deputy City Attorney and employees of the City does not necessarily establish the attachment is privileged. The attachment could, for example, be a restaurant’s take-out menu which clearly would not be an attorney-client privileged document. Accordingly, the attachment itself must be evaluated for privilege. “[A] communication which was not privileged to begin with may not be made so by subsequent delivery to the attorney.” (Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 825.)

Third, the City’s description of communications as an “email thread” creates confusion and obfuscates the privilege issue. The parties dispute whether there was an agreement about reflecting multiple email communications as threads, and the court need not resolve that dispute for purposes of this motion. (See Opposition 13:36-14:2, Nguyen Decl. Exh. G p. 4 at fn. 3; Reply 5 fn. 1.) Suffice it to say, from an outsider’s perspective, the communications between counsel are difficult to decipher, and it does not appear the parties had any agreement about lumping email communications together as threads. The parties’ positions on whether a privilege log may discuss “threads” of email communications appears grounded in their views of the law on privilege logs.

As the privilege log is currently constituted, the court cannot determine the sender and recipient for each email within a string. It may be that communications within the email thread are not privileged. For example, the thread may have been communicated to the attorney at the conclusion of a lengthy discussion by City employees, or the attorney may have communicated to City employees early in an email thread and other non-privileged communication occurs later between City employees. Accordingly, each email communication within a thread—with information relevant to the privilege issue—must be separately reflected in a privilege log. That is, individual email communications must be separately considered for privilege.

Fourth, as to PMK 2, Petitioner has failed to provide sufficient evidence the City withheld any documents related to PMK 2. The City’s response to PMK 2 indicates it would respond. (Consoli-Tiensvold Reply Decl. Exh. R p. 3.) The City’s response complied with the Code of Civil Procedure. The City’s counsel has also attested for purposes of this motion that “[t]he City did not withhold any documents responsive to Petitioner’s PMK Request No. 2 nor did it ever represent that it did.” (Nguyen Decl. ¶ 22.) Such evidence is sufficient to establish the City did not withhold any documents in response to PMK 2. Moreover, it appears the City has consistently held that position in provided a full production. (See Reply 6:17-18. [“The City refused to do so, instead stating only that no responsive records were withheld.”] See also Consoli-Tiensvold Decl. Exh. D p. 31 [“if the City”].)

Finally, given that the court has ordered the City to breakdown the email communication threads into specific communications, the City will be required to provide additional descriptions of the material for each communication (i.e., each email communication) for which it claims privilege. That is, the privilege log must be expanded to provide sufficient detail to evaluate a privilege claim for each email communication in any thread.

As the court sees it, the linchpin issue about the privilege log is whether the City has sufficiently described the factual basis for the attorney-client privilege for each document withheld (or each redaction made). As noted, each party has a strong legal basis to support their position.

The court recognizes here the dominant purpose of the relationship of deputy city attorneys and City employees is the delivery of legal advice through an attorney-client relationship. The circumstances here do not suggest the deputy city attorney (whether Ms. Nguyen or Ms. Kelly) is acting other than as an attorney in that relationship. The situation here is not where there is some possibility the deputy city attorney is providing business advice or acting as a trustee or a negotiator where the communications may not be privileged. (See 2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377, 1390.) That is, there appears to be no reason to believe the relationship between the deputy city attorneys and the various City employees is anything other than a traditional attorney-client relationship.

In evaluating privilege claims, the law is clear—the focus is on the relationship between the attorney and the client and its dominant purpose, “not on the purpose served by the individual communication.” (City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1032.) Our Supreme Court has made clear: “If a court determines that ‘communications were made during the course of an attorney-client relationship, the communications, including any reports of factual material, would be privileged, even though factual material might be discoverable by some other means.’ ” (Ibid. quoting Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 740 [Costco].)[1] The City’s position about the sufficiency of the information it provided in its privilege logs (whether about withheld documents or redacted documents) is supported by Supreme Court authority—communications made in the context of an attorney-client relationship are privileged. The City believes based on Costco it need only explain the sender and recipient of the communication. Given Costco, the City’s position is well founded.

Catalina, a Court of Appeal decision which is also binding on this court, sees it differently for claims of privilege and privilege logs. Costco did not address privilege logs; Catalina did. Catalina requires a description that is something more than a mere recitation that the allegedly protected communication was between an attorney and her client. Catalina noted sufficient descriptor information is important because “not all communications with an attorney are privileged. Instead, the attorney-client privilege attaches only to confidential communication made in the course of or for the purposes of facilitating the attorney-client relationship. [Citations.]” (Catalina, supra, 242 Cal.App.4th at 1129 fn. 5. See also Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1100 [evaluating descriptions of documents withheld].)[2]

Despite Costco, supra, 47 Cal.4th at 725 and its discussion that merely establishing the attorney-client relationship and communication is sufficient to establish privilege, pursuant to Catalina and its specific direction for privilege logs, the court orders the City to provide more detail in its withheld privilege log about the nature of the documents withheld or the redactions made. The withheld privilege log must “identif[y] each withheld document with particularity and provide[] sufficient factual information” for Petitioner and the court to evaluate the claim of attorney-client privilege. (Catalina, supra, 242 Cal.App.4th at 1130.)

For the Redaction Privilege Log and the Supplemental Redaction Privilege Log, the court’s reasoning is identical. Without sufficient specificity, the court cannot evaluate the attorney-client privilege claim.

Finally, the City’s “non-responsive” claim is unclear. If a document is nonresponsive to the discovery request, it is unclear why the City references the document in the first instance. In any event, any “non-responsive” claim should be supported by a sufficient explanation of how a document produced in response to a discovery request is nonetheless nonresponsive.

Petitioner’s request for monetary sanctions based on the City’s alleged misuse of the discovery process is denied. First, Petitioner was not completely successful with its motion. In this context, the capacity of the City’s employees is not required to evaluate the City’s claims of attorney-client privilege. The court also found the City provided a fully compliant response to PMK 2. As to lumping documents together under the category of “email thread,” there is some confusion about whether the parties agreed to such categorization.

Finally, and most importantly, the court finds the City acted with substantial justification when it decided attorney involvement in email communications here—between deputy city attorneys and City employees—constituted sufficient factual grounds for a finding the communications are privileged. The language in Costco, supra, 47 Cal.4th at 733, supports its position. The language from Costco was adopted by other cases relied upon by the City as authority for its position with the privilege log. (See City of Petaluma v. Superior Court, supra, 248 Cal.App.4th at 1032.)

Based upon the facts, the court finds the City acted with substantial justification in opposing Petitioner’s motion. The court finds Costco supports the City’s view about the information necessary to find a communication is protected by the attorney-client privilege. Certainly, given Costco and City of Petaluma v. Superior Court, it would be unjust to impose a sanction on the City here.

Based on the foregoing, the motion is GRANTED. The City shall provide new privilege logs for withheld and redacted documents as described herein.

[1] Costco seemingly requires less of a showing to establish the attorney-client privilege and does not focus on individual communications: “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support the exercise, i.e., a communication made in the course of an attorney-client relationship. [Citations.] 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. [Citations.]” (Costco, supra, 47 Cal.4th at 733 [emphasis added].)

[2] Importantly, Catalina arose in the context of the Civil Discovery Act while Costco Wholesale Corp. v. Superior Court largely analyzes the Evidence Code. As the CPRA is subject to the Civil Discovery Act (City of Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272, 284-292), the court finds compliance with Catalina appropriate. Catalina made clear the privilege log must “identif[y] each withheld document with particularity and provide[] sufficient factual information for [the] court to evaluate each privilege claim.” (Catalina, supra, 242 Cal.App.4th at 1132.)