Judge: Ronald F. Frank, Case: 23TRCV02217, Date: 2024-11-21 Tentative Ruling
Case Number: 23TRCV02217 Hearing Date: November 21, 2024 Dept: 8
Tentative Ruling
HEARING DATE: November 21, 2024
CASE NUMBER: 23TRCV02217
CASE NAME: Shawna Landon Lupia v. Darren Jerome Doucette, et al.
MOVING PARTY: Defendants, Darren Jerome Doucette and Los Angeles County Metropolitan Transportation Authority
RESPONDING PARTY: Plaintiff, Shawna Landon Lupia, individually and as successor in interest to Decedent, Dylan Lupia
TRIAL DATE: July 21, 2025
MOTION: (1) Defendant’s Motion to Compel Plaintiff’s Further Responses to Request for Production of Documents, Set One
(2) In Camera Review of Mr. Doucette’s Personnel Files
Tentative Rulings: (1) GRANT, subject to Plaintiff’s counsel explaining how a photograph or a video could constitute an attorney-client privileged communication, and explaining how Plaintiff’s counsel intends to better comply with the privileged log requirements discussed below.
(2) The Court has conducted an in-camera review of the extensive personnel files lodged by the MTA, after having reviewed the bus videos from several different cameras at the time of the subject incident, and has identified two documents from within the five-year period preceding the subject accident in 2022 that the Court views as being discoverable. The Court intends to return the personnel files to MTA’s counsel in person at the hearing and to identify which documents the Court has determined must be produced, subject to a protective order for the employment records. The incident dates are 12/24/19 and 11/24/21 which the Court has flagged in Envelope 2 of 3.
I. BACKGROUND
A. Factual
On July 10, 2023, Plaintiff, Shawna Landon Lupia, individually and as successor in interest to Decedent Dylan Lupia (“Plaintiff”) filed a complaint against Defendants, Darren Jerome Doucette, Los Angeles Metropolitan Transit Authority, and DOES 1 through 50. The complaint alleges causes of action for: (1) Negligence; and (2) Negligent Act or Omission of Public Entity or Public Employee.
On August 24, 2023, Los Angeles Metropolitan Transit Authority (“MTA”) propounded its Request for Production of Documents, Set One. Specifically, RFP No. 8, at issue in this motion, sought: “Any and all photographs allegedly depicting Dylan Lupia’s injuries, the scene of the accident, Defendant’s vehicle, and any other tangible evidence in any way pertaining to the subject accident.” On November 30, 2023, MTA asserts Plaintiff responded to this request with boilerplate general objections, many of which are not even applicable. MTA also contends Plaintiff never produced responsive documents.
Per the moving papers, on April 24, 2024, at the IDC, Plaintiff agreed to provide code-compliant responses. On May 13, 2024, Plaintiff served an unverified supplemental response, but failed to further respond to RFP No. 8, despite agreeing to do so at the IDC. Per the moving papers, on September 9, 2024, Plaintiff served “Supplemental Responses and Further Supplemental Responses” along with a privilege log. Pertaining to RFP No. 8, Plaintiff maintained the same objections, reiterated her initial response to RFP No. 8, and then proceeded to state: “Subject to the forgoing objection based on attorney work product, Plaintiff has no documents in her possession, custody, or control nor is she aware of any documents responsive to this request that exist that are not subject to the attorney work product privilege.”
On September 23, 2024, Plaintiff served an Amended Privilege Log, indicating that “Post August 2022” Plaintiff authored, and her attorney received, “Videos & Photographs” responsive to RFP No. 8 which are covered by “Attorney/Client Privilege” and “Attorney work-product.”
MTA now brings this Motion to Compel Further responses from Plaintiff as to RFP No. 8, and requests this court order Plaintiff to comply with Code of Civil Procedure section 2031.240 by identifying the photographs she claims are privileged, state that a diligent search and reasonable inquiry has been made to locate others, and state whether others ever existed and, if so, what happened to them.
B. Procedural
On October 11, 2024, Defendants filed this Motion to Compel Plaintiff’s Further Responses to Requests for Production of Documents, Set One No. 8. On November 8, 2024, Plaintiff filed an opposition brief. On November 15, 2024, Defendants filed a reply brief.
II. ANALYSIS
A. Legal Standard
A motion to compel further responses to a demand for inspection or production of documents (“RFP”) may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive, or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2031.310(c).) A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See Code Civ. Proc., § 2031.310(b)(1).) In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.) ¿
"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." (Cal. Code of Civ. Proc. § 2017.020(a).) Generally, objections on the ground of burden require the objecting party to produce evidence of (a) the propounding party's subjective intent to create burden or (b) the amount of time and effort it would take to respond. (See West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.) However, no such evidence is necessary where discovery is obviously overbroad on its face. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)
B. Discussion
i. Meet and Confer Efforts
Pursuant to Code of Civil Procedure section 2031.310, a motion seeking to compel further responses to inspection demands must be “accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310, subd. (b)(2).) Here, MTA’s attorney, Paul O’Reilly, has filed a declaration (“O’Reilly Decl.”) which discusses his meet and confer efforts with Plaintiff’s counsel, including participation at an IDC relating to the discovery at issue in this motion. The court finds such efforts to be sufficient.
ii. Motion to Compel Further Responses
Here, MTA has brought forth an untraditional motion to compel further responses. As noted above, Request for Production of Document, Set One No. 8 seeks: “Any and all photographs allegedly depicting Dylan Lupia’s injuries, the scene of the accident, Defendant’s vehicle, and any other tangible evidence in any way pertaining to the subject accident.” After back and forth between the parties’ counsels as well as an IDC, Plaintiff’s most recent supplemental response was: “Subject to the forgoing objection based on attorney work product, Plaintiff has no documents in her possession, custody, or control nor is she aware of any documents responsive to this request that exist that are not subject to the attorney work product privilege.” Because Plaintiff objected as to privilege, MTA argues that she must comply with Code of Civil Procedure section 2031.240, subdivisions (b) and (c). Section 2031.240, subdivisions (b) and (c) respectively state:
(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:
(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.
(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.
(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.
(2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.
(Code Civ. Proc., § 2031.240, subds. (b) & (c).)
Defendant MTA argues that Plaintiff has failed to comply with Code of Civil Procedure section 2031.240, subdivision (b) on the grounds that she failed to identify with particularity any document, tangible thing, land, or ESI falling within any category of item in the demand to which the privilege objection is being made. The court agrees. Plaintiff’s latest supplement response to RFP No. 8 does not state anything with particularity. Instead, Plaintiff generally asserts that she has “no documents in her possession, custody, or control nor is she aware of any documents responsive to this request that exist that are not subject to the attorney work product privilege.” The privilege log is also lacking in particularity. The description of the items being withheld based on the privilege objection is “Videos & Photographs,” and states the privileges are “Attorney work-product” and/or “Attorney/Client Privilege.” Thus, Plaintiff has failed to comply with Code of Civil Procedure section 2031.240, subdivision (b). Further, the Court will be interested in oral argument for Plaintiff’s counsel as to how a communication privilege such as the attorney-client privilege could pertain to a photograph or a video. A photograph taken by counsel or a consultant could potentially be work-product privileged, but it difficult to understand how work product privilege could apply to a photograph taken of Decedents’ injuries sustained before counsel was consulted.
As to Code of Civil Procedure section 2031.240, subdivision (c), MTA argues Plaintiff is in violation of its requirements on the grounds that neither her response nor her privilege log indicate the subject matter of the photographs and/or videos. MTA notes that Plaintiff’s attorney indicated she “will not, however, give specific descriptions of what was photographed or taped as that would give away counsel’s thought process as to theories and strategy.” (O’Reilly Decl., ¶ 6, Exhibit E.) Clearly, Plaintiff has not provided “sufficient factual information for [MTA] to evaluate the merits of that” privileged work-product objection as required by Code of Civil Procedure section 2031.240, subdivision (c). The Court is inclined to agree with MTA for the same reasons as the Court noted above, so the Court seeks argument by Plaintiff’s counsel bearing on the Court’s questions about the scope of the privilege log.
In opposition, Plaintiff asserts that because of her objection and subsequent privilege log as it pertains to RFP No. 8, it should be clear that the documents withheld based on privilege “necessarily must be ‘photographs allegedly depicting Dylan Lupia’s injuries, the scene of the accident, Defendant’s vehicle, and any other tangible evidence in any way pertaining to the subject accident.’” Again, because Plaintiff has not complied with the above code sections, it is uncertain which category of photographs or videos Plaintiff has in her possession as it relates to Decedent’s injuries, the scene of the accident, Defendant’s vehicle, or other tangible evidence pertaining to the subject accident. For example, accident photographs of a public bus on a public road generally would not be attorney-client privileged because they are not a communication, and the Court is uncertain by the vague description given by Plaintiff’s log as to how such materials may be privileged based on the work product doctrine either. As noted by MTA, only Plaintiff knows if she is withholding unprivileged pictures of “Defendant’s vehicle” or a privileged videotaped attorney-client discussion.
Lastly, the court also notes that Plaintiff’s supplemental response does not comply with Code of Civil Procedure section 2031.230.
The court requires oral argument from the Plaintiff’s counsel at trial as to how she intends to comply with the code section violations as her opposition does not do so.