Judge Peter Wilson, Case 2016-00894459 2023-08-10 Tentative Ruling

Judge: Peter Wilson, Case: 2016-00894459, Date: 2023-08-10 Tentative Ruling

Protective Order re Osborne Documents

Defendants The Irvine Company Apartment Communities, Inc., Newport Bluffs, LLC, and The Irvine Company, LLC move for a protective order regarding Plaintiff Adam Demichele’s Request For Production (1) Set Three, Nos. 280-304 (The Irvine Company, LLC), (2) Set Three, Nos. 403-427 (The Irvine Company Apartment Communities, Inc.), and Set Three, Nos. 375-399 (Newport Bluffs, LLC).

Legal Standard

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (CCP § 2017.010.)

The scope of discovery is broad, and doubts concerning the permissibility of discovery are generally resolved in favor of allowing discovery. (CCP § 2017.010; Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 837; Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1119.) This includes questions of relevancy. (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 98.) Nonetheless, the scope of discovery is not unlimited. “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (CCP § 2017.020(a.))

To obtain a protective order, the moving party must establish “good cause”. (Stadish v. Super. Ct. (1999) 71 Cal.App.4th 1130, 1145.) “Good cause” requires specific facts demonstrating unwarranted annoyance, embarrassment, oppression, or undue burden and expense. (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819; CCP §§ 2030.090(b), 2031.060(b).) The discovery burden is “undue” only if the inconvenience and expense of responding clearly outweighs the benefits likely to be obtained if the interrogatories are answered. (CCP §§ 2019.030(a), 2030.090(b).)

A motion for a protective order must be accompanied by a declaration showing the moving party made a reasonable and good faith attempt to resolve the issues outside of court. (CCP §§ 2016.040, 2030.090(a), 2031.060(a), 2033.080(a).)

“If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just.” (CCP § 2031.060(g).)

Meet and Confer

The parties adequately met and conferred regarding the matters in issue. (CCP § 2016.040(b).)

Merits

The operative Amended Consolidated Complaint concerns the harms Plaintiffs allegedly suffered as residents of the Newport Bluffs Apartment Homes owned and/or operated by Defendants. (ROA 301.) In a prior ruling, the Court found the relevant time period in this case is, at most, 2009-2018. (ROA 1004.)

Privilege

Defendants argue ALL the at-issue discovery requests are “absolutely” protected from disclosure by the attorney-client privilege and/or the work product doctrine. (See, e.g., Mem. at 8.) Defendants assert this blanket protection is required because the documents sought concern communications to or by Nicole Osborne, an in-house paralegal employed by Defendants between “March 11, 2013 and October 16, 2015” in the “Legal department within the Corporate division.” (Amante Jr. Decl. ¶ 4.)

The Court disagrees.

Ms. Osborne’s position of paralegal does not justify the wholesale withholding of every document or communication to or by her, and Defendants provide no authority holding otherwise. “The party claiming the privilege 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.” Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 741. Defendants have made no effort to distinguish communications made in the course of an attorney-client relationship, and those between Ms. Osborne and a third party, or between Ms. Osborne and any other person at one of the Defendant entities where the communication did not relate to the giving or receiving of legal advice.

While the Court presently disagrees that Plaintiff has successfully invoked the fraud/crime exception, only communications properly classified as “made in the course of an attorney-client relationship" may enjoy protection, and any communications withheld on this basis must be properly identified on a privilege log.

Regarding work product, protection of an attorney's work product is absolute if the documents contain an attorney's mental impressions, opinions, conclusions, and theories. (Code Civ. Pro. § 2018.030(a).) However, as to other attorney work product, it can be discoverable if 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.” (Code Civ. Pro. § 2018.030(a).)

Defendants have again failed to justify or otherwise demonstrate good cause for the issuance of a blanket protective order based on the work product doctrine. On the record before the Court there is simply no basis to conclude that every communication to or from Ms. Osborne contained what could properly be classified as attorney work product.

Accordingly, the motion is DENIED as to those bases.

If Defendants claim any privilege(s) as to particular documents, a privilege log shall be provided. (CCP § 2031.240(c)(1) [“If 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.”].)

Documents re Non-Newport Bluffs Apartment Communities

“Any apartment community”

(THE IRVINE COMPANY, LLC) RFP Nos. 289-292, 295, 298, 301 and 304

(THE IRVINE COMPANY APARTMENT COMMUNITIES, INC.) RFP Nos. 412-415, 418, 421, 424 and 427

(NEWPORT BLUFFS, LLC) RFP Nos. 384-387, 390, 393, 396 and 399

The above requests concern “any” apartment communities owned or controlled by Defendants in Orange County in the last 10 years.

“Villa Siena”

(THE IRVINE COMPANY, LLC) RFP Nos. 284-287, 294, 297, 299 and 303

(THE IRVINE COMPANY APARTMENT COMMUNITIES, INC.) RFP Nos. 407-410, 417, 420, 423 and 426

(NEWPORT BLUFFS, LLC) RFP Nos. 379-382, 388, 389, 392, 395 and 398

The above requests specifically concern the Villa Siena Apartment Homes located in Irvine, CA.

Defendants first argue the requests are unduly burdensome.

This argument fails as Defendants have not shown good cause, which requires specific facts demonstrating unwarranted annoyance, embarrassment, oppression, or undue burden and expense. (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819; CCP §§ 2030.090(b), 2031.060(b). For example, Defendants offer no facts supporting the time or expense associated with producing responsive documents. (See West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418 [evidence showing burden to compile evidence and respond to requests is required].) In any event, while the requests reference any apartment community, they are limited by reference to Ms. Osborne, and Defendants have made no showing as to why, so limited, the requests are overbroad or burdensome.

Defendants also argue the requests seek information that is not relevant to the issues presented in the pending action and are not reasonably calculated to lead to the discovery of admissible evidence. While a closer question, given the broad scope of permitted discovery, the Court finds Defendants have not shown good cause as to relevance. (Gonzalez v. Sup. Ct. (1995) 33 Cal.App.4th 1539, 1546 [ “relevant” information is information that might reasonably assist the party in evaluating the case, preparing for trial, or facilitating settlement].) The requests are specific to mold, water intrusion and HVAC issues, each of which is potentially relevant to the specific allegations concerning Newport Bluffs. What Defendants knew of those issues, and how Defendants handled those issues, may be relevant not only to questions of liability but also to Plaintiff's claim for punitive damages.

Accordingly, the motion is DENIED as to the above requests, but the Court orders the time period limited to 2009-2018.

Documents re Newport Bluffs

(THE IRVINE COMPANY, LLC) RFP Nos. 280-283, 288, 293, 296, 299 and 302

(THE IRVINE COMPANY APARTMENT COMMUNITIES, INC.) RFP Nos. 403-406, 411, 416, 419, 422 and 425

(NEWPORT BLUFFS, LLC) RFP Nos. 375-378, 383, 388, 391, 394 and 397

Defendants argue undue burden and oppression because (1) the requests seek documents from an unlimited time period and (2) concern all 1,052 apartment units of Newport Bluffs.

As to the time period, the Court agrees and orders the time period limited to 2009-2018. As to the number of units, the argument fails as Defendants have not demonstrated good cause supported by facts to support any relevance argument. (Gonzalez v. Sup. Ct. (1995) 33 Cal.App.4th 1539, 1546 [“relevant” information is information that might reasonably assist the party in evaluating the case, preparing for trial, or facilitating settlement].)

Accordingly, the motion is DENIED as to the above requests, but the Court orders the time period limited to 2009-2018.

Sanctions

Neither side has requested sanctions and the Court finds, under the circumstances, it would be unjust to award them.

Requests for Judicial Notice

The Court declines to rule on Defendants’ request for judicial notice as the document was immaterial to the rulings.

The Court declines to rule on Plaintiff’s request for judicial notice as to the Complaint in Nicole Osborne, et al. v. The Irvine Company LLC, et al. (Case No. 30-2018-00981498-CU-WT-CJC). Judicial notice would not include the truth of the hearsay allegations contained therein, and the document is accordingly not material to the Court's rulings herein.

Plaintiff’s request regarding the Amended Original Master Complaint filed in this action is DENIED AS MOOT. “It is not necessary to ask the court to take judicial notice of materials previously filed in the case; all that is necessary is to call the court's attention to such papers”. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 9:53.1a.) 

Defendants must provide responses to the discovery requests within 20 days of service of the Order issued hereon, and must, at the same time, provide a privilege log properly identifying every document withheld based on the attorney client privilege and/or the work product doctrine.

Plaintiff is ordered to file a proposed order within 5 court days, and to give notice.

Motion for Protective Order re 1221 Ocean Avenue

Defendants The Irvine Company Apartment Communities, Inc., Newport Bluffs, LLC, and The Irvine Company, LLC move for a protective order to preclude Plaintiffs from asking deposition questions regarding (a) 1221 Ocean Avenue, Santa Monica, California 90401 and (b) the related private arbitration entitled Stephanie Van De Motter and Sally Tillotson v. The Irvine Company, LLC et. al., Jams No. 1220059645.

For the reasons set forth below, the motion is DENIED.

Legal Standard

The scope of discovery is broad, and doubts concerning the permissibility of discovery are generally resolved in favor of allowing discovery. (CCP § 2017.010; Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 837; Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1119.) This includes questions of relevancy. (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 98.) Nonetheless, the scope of discovery is not unlimited. The court is empowered to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP § 2025.420(b); see Nativi v. Deutsche Bank Nat'l Trust Co. (2014) 223 Cal.App.4th 261, 316.) The burden is on the moving party to establish “good cause” for whatever relief is requested: “Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in … [the discovery procedure] clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Emerson Elec. Co. v. Sup.Ct. (Grayson) (1997) 16 Cal.4th 1101, 1110; accord Nativi v. Deutsche Bank Nat'l Trust Co. (2014) 223 Cal.App.4th 261, 318 [burden not met by “entirely conclusory” declaration that “lacked any factual specificity”]; accord (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819 [“Good cause” showing requires specific facts.].)

Meet and Confer

The parties adequately met and conferred regarding the issues. (CCP § 2016.040.)

Merits

Defendants make two primary arguments. The Court finds both lack merit.

First, Defendants argue information regarding the property located at 1221 Ocean Avenue and the related private arbitration is not relevant to the issues presented in the pending action. While this action concerns only current or former residents of Newport Bluffs (see, e.g., Compl. ¶¶ 1-2), given the broad scope of permitted discovery, the Court finds Defendants have not shown good cause as to relevance. (Gonzalez v. Sup. Ct. (1995) 33 Cal.App.4th 1539, 1546 [ “relevant” information is information that might reasonably assist the party in evaluating the case, preparing for trial, or facilitating settlement].) Plaintiffs have demonstrated the evidence sought has relevance as it may “prove Plaintiffs’ prayer for punitive damages.” (Sampson Decl. ¶ 7.) As Cal. Civ. Code § 3294 provides, punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, which Plaintiffs have alleged. (See generally Compl.) Plaintiff has amply demonstrated for discovery purposes that activity at and in connection with alleged water intrusion and mold at 1221 Ocean Avenue is not completely disconnected from activity at and in connection with alleged water intrusion and mold at Newport Bluffs during the relevant time period.

Second, Defendants contend the information sought is inadmissible character evidence precluded by California Evidence Code §1101(a). However, as Plaintiffs correctly observe, questions of admissibility are not appropriate at the discovery stage. “‘Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.’ [Citations.]” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013.) Further, in resolving a discovery dispute, the trial court does not determine whether the disputed discovery will be admissible at trial. Instead, “[i]t can only attempt to foresee whether it is possible that information in a particular subject area could be relevant or admissible at the time of trial.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1397.)

Plaintiffs are ordered to give notice.