Judge Monica Bachner, Case 21STCP03351 2023-01-17 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by Court Call for all matters.

Respondent Liberty Mutual Insurance (“Liberty Mutual”) (“Respondent”) moves for an order compelling Claimants Jesse Rios’s and Lydia Rodriguez’s (collectively, “Claimants”) counsel, the Law Office of Jonathan M. Kashani, PLC (“Kashani”) to comply with an April 11, 2022, deposition subpoena for production of business records. (Notice of Motion, pgs. 1-2; C.C.P. §§2025.480, 2020.030.) Respondent also requests an award of sanctions against Kashani in the amount of $3,852.50. (Notice of Motion, pgs. 1-2; C.C.P. §§2025.480(j), 1987.2(a).)

On April 11, 2022, Respondent served Kashani with a deposition subpoena for production of business records and notice to Claimants with a production date set for May 9, 2022. (Decl. of Kortz ¶12, Exh. A.) These seek five categories of documents relating to Lydia Rodriguez’s 2016 accident, Jesse Rios’ motorcycle accident, Jesse Rios’ 2017 accident, any similar claims and lawsuits by either claimant. (Id.) On May 17, 2022, Respondent sent an email to Kashani after Respondent did not receive documents by the production date. (Decl. of Kortz ¶14, Exh. B.) Respondent did not receive a response to its May 17 email and sent another reminder on May 23, 2022, to Kashani that the documents still had not been produced. (Decl. of Kortz ¶15, Exh. C.) Respondent sent another letter on June 30, 2022, providing Kashani with an additional deadline of July 6, 2022, to respond to Respondent’s production request. (Decl. of Kortz ¶17, Exh. D.) On July 1, 2022, Kashani represented that it was “informed” that none of the records exist, but it would provide a formal response and case numbers. (Decl. of Kortz ¶19, Exh. E.) Respondent did not receive an affidavit from Kashani that no records exist. (Decl. of Kortz ¶22.) Counsel for Claimants argues that all responsive non-privileged documents were produced in response to RFPs directed to Claimants, as performing a diligent search and inquiry includes obtaining documents from Claimants’ attorneys. (Opposition, pg. 8; Decl. of Sherman, ¶¶ 12-14.)

On July 8, 2022, Respondent filed the instant motion. Claimants filed their opposition on January 3, 2023. Respondent filed its reply on January 9, 2023.

C.C.P. §2025.480(a) provides: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (C.C.P. §2025.480(a).)

Evidence Code §1561(5)(b) provides: “If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and those records that are available in one of the manners provided in Section 1560.” (Evid. Code §1561(5)(b).)

Except as provided in Section 1564, when a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person described in subdivision (d) of Section 2026.010 of the Code of Civil Procedure, together with the affidavit described in Section 1561 . . . .

Respondent’s subpoena duces tecum to Kashani seeks “[c]opies of all depositions, written discovery, non-privileged correspondence and/or email communications, medical records, and photographs” related to Claimants’ prior car and motorcycle accidents, and “[c]opies of all depositions, written discovery, non-privileged correspondence and/or email communications, medical records, and photographs related to any prior claim made on behalf of [C]laimants . . . made in the past 10 years where they [claimed injuries] similar to those being claimed in this lawsuit,” and “[c]opies of all lawsuits/complaints filed by any attorneys or formerly employed by the Kash Legal or the Law Offices of Jonathan M. Kashani on behalf of [Claimants] within the past 10 years where they claimed injuries similar to those being claimed in this lawsuit.” (Decl. of Kortz, Exh. A.)

Respondent argues “good cause” exists to compel records of Claimants’ prior lawsuits/accidents by their attorneys of records Kashani because they are directly relevant to the issues presented in this case and will assist Respondent to evaluate Claimants’ excessive medical damages, and effectively prepare for arbitration. (Motion, pg. 7; C.C.P. §2025.450(b)(1).) Respondent argues Claimants have placed their medical condition at issue with respect to the injuries they are claiming as a result of the alleged incident, including their prior medical history, and to the extent that Claimants have a history of injuries to the same areas affected in the present matter, that history is directly relevant to the subject matter and Respondent has a right to conduct discovery into that history. (Motion, pg. 8; Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1314 [“When one initiates litigation, his otherwise privileged medical [condition] become discoverable on a showing of good cause if the plaintiff’s conduct is relevant to the issue of proximate cause.”].) Respondent argues Claimants did not timely object to Respondent’s subpoena and further did not provide an affidavit indicating that it does not have the records sought in Respondent’s subpoena. (Reply, pg. 3; Evid. Code §1561(5)(b).)

Claimants argue Kashani’s records are protected by the attorney-client privilege, the attorney work product doctrine, and the constitutional right to privacy. (Opposition, pg. 3.)[1]

California law “[p]reserve[s] 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” and, “[p]revent[s] attorneys from taking undue advantage of their adversary’s industry and efforts.” (C.C.P. §2018.020.) Subject to waiver of privilege under Evidence Code §912, or as otherwise provided by California law, “the 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.” (Evid. Code §954.) The privilege must be claimed by: “the holder of the privilege;” a person who the holder of the privilege authorizes to claim the privilege; or “[t]he 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.” (Id.)

California similarly protects an attorney’s work product from discovery: “A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (C.C.P. §2018.030(a), emphasis added.) “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.” (C.C.P. §2018.030(b).) “The protection afforded by the privilege is not limited to writings created by a lawyer in anticipation of a lawsuit. It applies as well to writings prepared by an attorney while acting in a nonlitigation capacity.” (State Compensation Insurance Fund v. Superior Court (2001) 91 Cal.App.4th 1080, 1091, as modified on denial of reh’g (Sept. 20, 2001).)

Here, it is undisputed that Kashani has an attorney-client relationship with Claimants. Respondent’s request for Kashani to produce “all depositions, written discovery, . . . medical records, and photographs related to any prior claim made on behalf of [C]laimants . . . made in the past 10 years where they [claimed injuries] similar to those being claimed in this lawsuit” and “[c]opies of all lawsuits/complaints filed by any attorneys or formerly employed by the Kash Legal or the Law Offices of Jonathan M. Kashani on behalf of [Claimants] within the past 10 years where they claimed injuries similar to those being claimed in this lawsuit” is protected by the attorney work product privilege and Claimants’ attorney-client privilege that is held by Claimants, not Kashani. (C.C.P. §2018.030(a); Evid. Code §954.) Respondent has not demonstrated denial of discovery will unfairly prejudice Respondent in preparing that party’s claim or defense or will result in an injustice. (C.C.P. §2018.030(b).)

The subpoena also requested non-privileged correspondence and or email communications. Insofar as there are non-privileged correspondence and email communications, they are to be produced.

Claimants are ordered to produce a code-compliant response and privilege log identifying with particularity any depositions, medical records and photographs related to Claimants’ prior car and motorcycle accidents or other claims where they claimed similar injuries, setting forth the particular privilege invoked, and provide sufficient factual information for Respondent to evaluate the merits of that claim. (C.C.P. §2031.240.) Respondents’ motion to compel copies of “all lawsuits/complaints. . .” is denied.

The Court finds sanctions are not warranted in light of the ruling on the motion.

[1] Regarding the right to privacy, Claimants’ right to privacy in their medical issues is diminished as they have placed their medical condition at issue in this case.