Judge: Stephen Morgan, Case: 21AVCV00856, Date: 2022-07-28 Tentative Ruling

Case Number: 21AVCV00856    Hearing Date: July 28, 2022    Dept: A14

Background

 

This is a premises liability action. Plaintiff Maribel Estrada Flores (“Plaintiff”) alleges that she was lawfully at Defendant 99 Cents Only Stores, LLC (“Defendant”)’s premises located at 38360-B, 20th Street E., Palmdale, CA 93550 (the “Premises”) on October 30, 2019 when she slipped on a foreign substance on the floor, causing Plaintiff to twist her body with enough force to cause the injuries. Plaintiff alleges injuries to her neck, back, pelvis, is, left hip, left upper and lower extremities including, but not limited to, her left hand, wrist, forearm, fingers, elbow, leg, and foot, and buttocks.

 

On October 25, 2021, Plaintiff filed her Complaint alleging two causes of action for (1) Premises Liability Negligence and (2) General Negligence.

 

On November 15, 2021, Defendant filed its Answer.

 

On May 12, 2022 and June 16, 2022, two informal discovery conferences (“IDCs”) were held between the parties. Pursuant to the June 16, 2022, IDC, the following timeline governs this motion:

 

 

On June 24, 2022, Plaintiff filed her (1) Motion to Compel Further Production and Responses to Plaintiff’s Request for Production of Documents (Set One) (“Motion to Compel Further RFPs”) and (2) Motion to Compel Further Responses to Plaintiff’s Special Interrogatories (Set One) (“Motion to Compel Further Special Interrogatories”).

 

On July 20, 2022, Defendant filed its Oppositions. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . . before the hearing.” The hearing is scheduled for July 28, 2022. As such, an Opposition was due on July 15, 2022. The Oppositions are untimely. “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. Rules of Court, Rule 3.1300(d).) While the Court would generally not consider a paper so patently late, it considers these Oppositions as the topic of these discovery requests concern privilege. The Court notes that Defendant did not file a separate statement as required. (See Cal. Rules of Court, Rule 3.1345.) The Court reiterates that it considers these Oppositions only because of the topic they concern.

 

No Reply has been filed. “All. . .reply papers [shall be filed with the court and a copy served upon each party at least five court days before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The hearing is scheduled for July 28, 2022. As such, a Reply was due on July 21, 2022. Should a Reply be filed, it is now untimely.

 

-----

 

Analysis

 

Standard for Compelling Further Responses to Requests for Production (“RFPs”) – “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.” (Cal. Code of Civ. Proc. § 2017.010.)¿For discovery purposes, information is regarded as relevant “if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.” (City of Los Angeles v. Superior Court¿(2017) 9 Cal.App.5th 272, 288.)¿¿¿¿ 

¿¿¿¿ 

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.¿ (Cal. Code Civ. Proc. §¿2031.310(a).)¿¿¿¿ 

¿¿¿ 

Notice of the motion must be given within 45 days of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing. (Cal. 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 Cal. 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¿is¿“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 actually 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, where discovery is obviously overbroad on its face, no such evidence is necessary. (See¿Obregon v. Superior Court¿(1998) 67 Cal.App.4th 424, 431.)¿¿¿¿¿ 

¿¿¿¿ 

Trial courts are vested with “wide discretion” to allow or prohibit discovery. (Williams v. Superior Court¿(2017) 3 Cal.5th 531, 540.)¿¿¿

 

-----¿¿

 

Standard for Compelling Further Responses to Interrogatories – Under Cal. Code Civ. Proc. § 2030.300, a court may order a party to serve a further response to interrogatories when the court finds that any of the following apply:  

 

1.      An answer to a particular interrogatory is evasive or incomplete.  

 

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

     

  1. An objection to an interrogatory is without merit or too general.   

     

    (Cal. Code Civ. Proc. § 2030.300(a).)  

     

    -----

     

Meet and Confer Requirement¿– Before filing a motion to compel further, the moving party is required to meet and confer with the party to engage in a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Cal. Code Civ. Proc. §§ Cal. Code Civ. Proc. § 2030.300(b), 2033.290(b), 2016.040.) The Court notes that this requirement has been attempted by counsels via meet and confer letter and multiple IDCs were held between the parties to address the RFPs and Special Interrogatories that remained at issue. (Motion to Compel Special Interrogatories and Motion to Compel RFPs, Decl. Roxana Eli ¶¶ 6-10 and Exh. C.)¿¿ 

 

-----

 

Discussion

 

Application –

 

  1. Motion to Compel Further RFPs

 

The following RFPs remain at issue:

 

 

Plaintiff presents that she will be severely prejudiced if the requested documents are not produced as (1) the witness statements and information in the incident report contain contemporaneous statements regarding the subject incident, and Plaintiff cannot obtain this document by any other means; (2) the incident report and incident reports for similar incidents may establish proof of the existence of a defective/dangerous condition, causation, knowledge/notice of the dangerous condition, and negligence in permitting that condition to continue; and (3) the only way for Plaintiff to obtain the subject information is through the production of the statements and reports requested in RFP Nos. 12 through 16 and 37 which are in the exclusive control of Defendant.

 

    1. RFP Nos. 12-13: Incident Report

 

RFP No. 12 reads:

 

Any and all reports pertaining to the INCIDENT that were taken by YOU or YOUR employee(s) at the STORE on the date of the INCIDENT, including but not limited to, any and all “Incident/Accident Report” form(s) that were completed after the INCIDENT occurred. (Eli Decl., ¶ 4, Exh. A at p.7, lines 21-24.)

 

Plaintiff argues that the subject incident report does not fall within the purview of the attorney-client or work product privileges. Plaintiff cites Bank of the Orient v. Superior Court (1977) 67 Cal.App.3d 588, 598 which holds: “A report which is not the product of the attorney or of his agents or employees is not an attorney work product, and an attorney 'cannot, by retroactive adoption, convert the independent work of another, already performed, into his own' [citation]." Plaintiff next cites Coito v. Superior Court (2012) 54 Cal.4th 480, 488 (“Coito”) which defines attorney work product as “material created by or derived from an attorney’s work reflecting the attorney’s evaluation of the law or facts” and holds that "witness statements procured by an attorney are not automatically entitled as a matter of law to absolute work product protection” (Id. at 495). Plaintiff presents that, as the incident report was prepared by an employee and not an attorney, it does not qualify as work product. Next, Plaintiff argues that he attorney-client privilege applies only to confidential information communicated between clients and their counsel related to legal representation (Cal. Evid. Code § 952), that otherwise unprivileged documents do not become “privileged” merely because they are communicated to an attorney (See Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217-218), Defendant has the burden of showing that this privilege actually exists (See Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733; Coito, supra, 54 Cal.4th at 495-496), that attorney-client privilege may not attach to reports or statements made by a corporate defendant's employee where the employee is an “independent witness” or where the “dominant purpose” of the report or statement is not intended as a communication to lawyers (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 737 (“D.I. Chadbourne”).), and statements of corporate employees to the corporation's attorney are not privileged if the employee speaks as an independent witness, even if the employer requires the employee to make the statement (ibid.). Plaintiff presents that Defendant has not provided any factual basis for its claim of privilege or any evidence to show that the dominant purpose of the incident report is for transmittal to an attorney.

 

Defendant presents that incident report documents are protected from disclosure by attorney-client privilege (citing D.I. Chadbourne, supra, 60 Cal.2d 723; Sierra Vista Hospital v. Sup. Ct. (1967) 248 Cal.App.2d 359; Payless Drug Stores, Inc. v. Sup. Ct. (1976) 54 Cal.App.3d 988; and Scripps Health v. Sup. Ct. (2003) 109 Cal.App.4th 529). Defendant also presents that employee statements are protected by attorney client privilege/attorney work product privilege (citing Costco Wholesales Corp. v. Sup. Ct. (2009) 47 Cal.4th 725; D.I. Chadbourne, supra, 60 Cal.2d 723.) Defendant provides their discovery responses, but does not elaborate any further on their responses. The response state that the documents are protected by attorney-client and work product privilege as “they were drafted in anticipation of litigation.” (Opp., Exh. A.)

 

If the question of privilege does not appear as a matter of law, but as a matter of fact, “[t]hen the facts, or reasonable inferences from the facts, shown in support of or in opposition to the claim of privilege are in conflict, the determination of whether the evidence supports one conclusion or the other is for the trial court. . .” (D.I. Chadbourne, supra, 60 Cal.2d 723, 729.)

¿¿ 

D.I. Chadbourne remains the seminal case for determination of attorney-client privilege in the corporate setting. (Id.; See also Costco Wholesale Corp. v. Superior Court (2009) 47 Cal. 4th 725 [citing to D.I. Chadbourne]; Tucker Ellis LLP v. Superior Court (Nelson) (2017) 12 Cal. App. 5th 1233 [citing to D.I. Chadbourne for privilege regarding employee’s communication which arose from his employment].)¿¿ 

¿¿ 

The Court is bound by California case precedent. Thus, D.I. Chadbourne lays out the following privilege, in relevant part:¿¿¿ 

¿¿ 

4. Where the employee's connection with the matter grows out of his employment to the extent that his report or statement is required in the ordinary course of the corporation's business, the employee is no longer an independent witness, and his statement or report is that of the employer;¿¿ 

¿¿ 

5. If, in the case of the employee last mentioned, the employer requires (by standing rule or otherwise) that the employee make a report, the privilege of that report is to be determined by the employer's purpose in requiring the same; that is to say, if the employer directs the making of the report for confidential transmittal to its attorney, the communication may be privileged;¿¿ 

¿¿ 

6. When the corporate employer has more than one purpose in directing such an employee to make such report or statement, the dominant purpose will control, unless the secondary use is such that confidentiality has been waived;¿¿ 

¿¿ 

7. If otherwise privileged under the rules stated above, a communication does not lose its privilege merely because it was obtained, with the knowledge and consent of the employer, by an agent of the employer acting under such agency;¿¿ 

¿¿ 

(Id. at 737.)¿¿¿ 

 

The Opposition does not provide sufficient factual information for the Court to evaluate the merits of the claim of privilege.

 

RFP No. 13 reads:

 

Any and all “Incident/Accident Report” form(s) that reflect any and all incidents that occurred at the STORE in substantially the same manner as the subject INCIDENT. Specifically, any and all “Incident/Accident Report” form(s) reflecting slip and fall injuries that occurred inside the STORE from the period of October 30, 2010 to the present. (Eli Decl., ¶ 4, Exh. A at p.7, lines 25-28.)

 

Plaintiff presents that the arguments regarding attorney-client privilege and attorney work product privilege in RFP No. 12 applies to RFP No. 13. Plaintiff emphasizes that the non-party employee who arrived to the scene of the incident and generated the report is considered an independent witness under D.I. Chadbourne and, thus, the employee’s report, by definition, is not intended as communication to counsel (i.e., it does not fall within the protections of the attorney-client privilege.

 

Plaintiff further presents the broad standards and scope of discovery and argues that reports of similar slip and fall incidents that occurred at the Premises from nine years prior to the present are relevant. Particularly, Plaintiff cites to case precedent that has held that documents reflecting similar incident reports are admissible and serves at least four evidentiary functions as proof of: (1) existence of a defective/dangerous condition, (2) causation, (3) knowledge/notice of the dangerous condition, and (4) negligence in permitting that condition to continue (citing Gilbert v. Pessin Grocery Company (1955) 132 Cal.App.2d 212, 217 (“Gilbert”)). Plaintiff emphasizes that similar reports could show “insufficiencies in Defendant’s inspection policies, its employees’ compliance with those policies, the frequency with which individuals have slipped and fallen on the same single step where Plaintiff fell in the case at hand, or even quite possibly the unreasonable coefficient of friction of the flooring material itself.” (Opposition 10:6-9.)

 

Defendant presents that it’s argument for RFP. No. 12 applies to RFP No. 13 as well.

 

As the requested documents are incident reports, D.I. Chadbourne’s holding applies here as well.

 

The Opposition does not provide sufficient factual information for the Court to evaluate the merits of the claim of privilege.

 

    1. RFP Nos. 14-16 and 37: Witness Statements

 

RFP Nos. 14-16 read:

 

14. Any and all DOCUMENTS / TANGIBLE THINGS / ELECTRONICALLY STORED INFORMATION that refer to, evidence or reflect any statement(s) from any PERSON(s) with knowledge of relevant facts regarding the INCIDENT (written statement given by percipient witnesses are not work product. Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626.)

 

15. Any and all DOCUMENTS / TANGIBLE THINGS / ELECTRONICALLY STORED INFORMATION that refer to evidence or reflect any and all discussion YOU or anyone acting on YOUR behalf had with any party at the scene of the INCIDENT.

 

16. Any and all DOCUMENTS / TANGIBLE THINGS / ELECTRONICALLY STORED INFORMATION that refer to evidence or reflect any and all discussion YOU or anyone acting on YOUR behalf had with any party and/or witness to the INCIDENT.

 

37. Any and all “recorded statements” identified by YOU in YOUR response to Form Interrogatory 12.3 accompanying this Demand for Production of Documents.

 

(Motion to Compel Further RFPs, Exh. A.)

 

The issue presented in all three aforementioned RFPs is whether witness statements, including recordings or notations of such statements, are discoverable.

 

Plaintiff presents that the arguments regarding attorney-client privilege and attorney work product privilege in RFP Nos. 12 and 13 apply to these RFPs as well. Plaintiff argues that (1) attorney work product privilege does not apply as any documents, tangible things, and/or electronically stored information regarding witness statements were not created by or derived from an attorney and (2) documents relating to discussions between the parties at a scene of an incident are not protected by attorney-client privilege as they are not made during or after a conversation with an attorney.

 

Regarding RFP No. 37, Defendant identified its employee, Maria Flores (“Flores”), in response to Form Interrogatory No. 12.3, however, Defendant refused to provide a substantive response to RFPD No. 37 on grounds that such documents are protected by the attorney-client and attorney work product privileges. (Id., Decl. Eli ¶ 5, Exh. B 8:3-5.)

 

Defendant applies its arguments for RFP Nos. 12-13 apply to RFPs Nos. 14-16.

 

The Opposition does not provide sufficient factual information for the Court to evaluate the merits of the claim of privilege.

 

The Court declines to rule on the Motion to Compel Further RFPs at this time.

 

  1. Motion to Compel Further Special Interrogatories

 

The following special interrogatories remain at issue:

 

26. IDENTIFY any incidents, prior to October 30, 2019, of which YOU are aware of that occurred at the STORE in substantially the same manner as the INCIDENT that is the subject matter of this litigation

 

27. IDENTIFY any incidents, subsequent to October 30, 2019, of which YOU are aware of that occurred at the STORE in substantially the same manner as the INCIDENT that is the subject matter of this litigation

 

(Motion to Compel Further Special Interrogatories, Exh. A.)

 

At the June 16, 2022, IDC, Plaintiff agreed to limit the aforementioned special interrogatories to (1) anywhere on the floor within the Premises that (2) occurred three years prior to the incident to the present. (Id., Decl. Eli ¶ 7.)

 

Plaintiff highlights the broad standard of discovery and reiterates the Gilbert holding, emphasizing that such information is needed to show the existence of a dangerous condition, causation, notice, and negligence. Plaintiff emphasizes that it is sufficient that the incidents are “similar in their general character.” (Magnuson v. City of Stockton (1931) 116 Cal.App. 532, 535.)  Further, Plaintiff presents that, though Defendant has claimed privilege, Defendant has not provided any factual basis for either attorney work product or attorney-client privilege or any evidence to show that the dominant purpose of the incident report is for transmittal to an attorney. Plaintiff concludes by arguing that she will be severely prejudiced if the information is not produced.

 

Defendant’s Opposition argues that this instant action is distinguished from the Gilbert as the item that caused the incident, a fruit, is transient and not fixed and continuous like the island divider in the Gilbert case.

 

“Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.” (Cal. Evid. Code § 1105.)

 

The information sought by Plaintiff is discoverable to show a habit or custom on behalf of Defendant and/or its agents.

 

Accordingly, the Motion to Compel Special Interrogatories is GRANTED.

 

-----

 

Conclusion

 

The Court does not rule on Plaintiff Maribel Estrada Flores’ Motion to Compel Further Production and Responses to Plaintiff’s Request for Production of Documents (Set One). Defendant 99 Cents Only Stores, LLC’s Opposition does not provide a response that contains sufficient factual information for other parties to evaluate the merits of both claims of attorney-client privilege and attorney work product privilege. The Court orders a privilege log and a separate statement be filed within ten (10) days. “The information in the privilege log must be sufficiently specific to allow a determination of whether each withheld document is or is not [in] fact privileged.” (Wellpoint Health Networks, Inc. v. Superior Court (McCombs) (1997) 59 Cal.4th 110, 130; See also Cal. Code Civ. Proc. § 2031.240(c)(1).)

 

Plaintiff Maribel Estrada Flores’ Motion to Compel Further Responses to Plaintiff’s Special Interrogatories (Set One) is GRANTED.