Judge: Stephen Morgan, Case: 21AVCV00916, Date: 2022-07-28 Tentative Ruling

Case Number: 21AVCV00916    Hearing Date: July 28, 2022    Dept: A14

Background

This is a premises liability action. Plaintiff Nellie Reyes (“Plaintiff”) alleges that on November 28, 2019, she was lawfully on the property of Defendant Super Center Concepts, Inc., dba Superior Grocers (“Defendant”), located at 38360 20th St. E., Palmdale, CA 93550 when she slipped and fell on an unknown liquid substance, sustaining bodily injuries and damages. 

On November 12, 2021, Plaintiff filed a Complaint alleging one cause of action for Premises Liability. 

On January 05, 2022, Defendant filed its Answer.  

On July 05, 2022, Plaintiff filed her Motion to Compel Defendant’s Further Responses to Request for Production of Documents, Set One (“Motion to Compel”).

On July 15, 2022, Defendant filed its Opposition.

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

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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.)¿¿¿ 

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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).)¿¿¿ 

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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).)¿¿ 

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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.”¿¿¿¿ 

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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.)¿¿¿ 

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“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.)¿¿¿¿ 

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

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Meet and Confer Requirement¿– A motion compelling further responses to RFPs must be accompanied by a meet and confer declaration. (Cal. Code Civ. Proc. § 2031.310(b)(2).)¿The Court notes that this requirement has been attempted by counsels via meet and confer letter, a supplemental response was served, and an Informal Discovery Conference (“IDC”) was held between the parties to address the RFPs that remained at issue. (Decl. Svetlana Darbinyan ¶¶ 6-11.)¿¿

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Discussion

Application – Plaintiff seeks further responses for the following RFPs:

REQUEST NO. 21.

Any and all DOCUMENTS constituting investigative and/or follow up report(s) RELATING TO this INCIDENT.

REQUEST NO. 28:

Any and all DOCUMENTS in effect at the time of the INCIDENT constituting YOUR policies and procedures RELATING TO reporting of incidents of injuries due to slip/trip and falls which occurs on or near SUBJECT LOCATION.

REQUEST NO. 29:

Any and all DOCUMENTS constituting YOUR policies and procedures RELATING TO investigation of incidents of injuries due to slip/trip and falls which occur on or near SUBJECT LOCATION, in effect at the time of the INCIDENT.

Plaintiff presents that discovery is to be liberally construed in favor of disclosure (Flagship Theatres of Palm Des, LLC v Century Theatres, Inc. (2011) 198 Cal.4th 1366, 1383 (“Flagship”)); the discovery procedures are designed to minimize the opportunities for fabrication and forgetfulness, and to eliminate the need for guess work about the other side’s evidence (Glenfed Dev. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1119); and absent showing that substantial interests will be impaired by allowing discovery, liberal policies of discovery rules will generally counsel against overturning trial court’s decision granting discovery and militate in favor of overturning decision to deny discovery (Flagship, supra, Cal.4th 1366, 1383.)

Plaintiff contends that Defendant has made improper objections and that the information sought is relevant. Regarding claimed privilege, Plaintiff presents that it is the burden of the party claiming the privilege to show that it applies; the response shall identify with particularity the document in the demand to which an objection is being made. The dates of alleged privileged communications, the identity of the communicants and the underlying facts upon which such communications are based are not privileged. Specifically, Plaintiff cites that a privilege log needs to be “sufficiently specific to permit the trial court to determine whether each document is or is not privileged.” (Opposition 6:4-5 [no cite provided].) Plaintiff disagrees with Defendant’s response that policies and procedures regarding how to investigate an incident are protected by privilege.

1. Request No. 21

Defendant’s objection reads:

OBJECTION. Responding Party objects to this Demand on the grounds that it is vague and ambiguous, and therefore unintelligible, as to the term/phrase “constituting investigative and/or follow up report.” Responding Party objects to this Demand on the grounds that it potentially includes the production of documents which reflects, through organization and specification of information and documentation, an attorney’s impressions, conclusions, opinions or legal research or theories in violation of the attorney-client privilege and/or the attorney work product doctrine. Responding Party objects to this Demand on the grounds that it seeks the production of confidential proprietary information and trade secrets. Responding Party objects to this Demand on the grounds that it impermissibly seeks the premature disclosure of expert opinion

(Plaintiff’s Separate Statement, p. 2.)

Plaintiff argues that the objections are improper. Particularly, Plaintiff’s argue that ambiguity is only a valid objection if the ambiguity precludes an intelligent reply; that information is relevant; that the objections are boilerplate and do not provide a privilege log, which is improper; that the objection states that this request would call for early disclosure of an expert opinion which is not the case; and, for unintelligible objections, a party must comply with the order of the court as far as it was able in reason and good faith to ascertain the intent and meaning of the order here made (citing Union Trust Co. v. Superior Court of San Diego County (1938) 11 Cal.2d 449). Plaintiff also presents that the party contending a trade secret privilege has the burden of showing that the same applies and that the discovery implicates trade secret (or any other privilege) and that a specific form of protective order is required and necessary (citing Westinghouse Electric Corp. v. Newman & Holtzinger (1995) 39 Cal. App. 4th 1194.)

As to the incident report itself, Plaintiff argues that the document was created in the ordinary course of business as it was prepared in response to Defendant’s policies and procedures and, thus, no work product or attorney client privilege applies to such documents.

The Court notes that Plaintiff has cited to several United States District Circuit cases of various circuits. Such case precedent is not binding on this Court.

Defendant presents that they have raised the privilege objects so that it will be preserved for trial. Defendant believes that the phrase “follow up reports RELATING TO the Incident” is sufficiently vague and ambiguous to contemplate the potential production, for example, of communication between counsel and Defendant regarding investigative efforts, or reports prepared by experts who may have performed investigation on behalf Defendant. Defendant cites to their privilege log stating that the only report withheld is the Superior Grocers Accident/Incident Report for the Incident at issue and it was withheld on the basis of attorney-client privilege, as it was prepared by Super Center’s on-site manager following the accident in anticipation of litigation for purposes of transmission to Defendant’s counsel. (Opposition, Decl. Katy A. Cummings ¶¶ 8-9.) Defendant cites to D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729 (“D.I. Chadbourne, Inc.”) for case precedent as to whether a report is privileged when prepared by an employee. Defendant presents that the intended purpose of the Incident Report is to preserve information for counsel should the accident result in litigation. (Opposition, Decl. Katy A. Cummings ¶¶ 8-9.)

Defendant also cites to Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 825’s holding: “When the employee of a defendant corporation is also a defendant in his own right (or is a person who may be charged with liability), his statement regarding the facts with which he or his employer may be charged, obtained by a representative of the employer, and delivered to an attorney who represents (or will represent) either or both of them, is entitled to the attorney-client privilege.” This citation is taken from D. I. Chadbourne, Inc. Defendant presents that the manager on duty and the employee responsible for cleaning the store may be charged with liability and, if brought in, Defendant’s counsel would provide them with representation. Thus, the Incident Report contains statements from Defendant and its individual employees to their counsel and/or potential counsel.

Here, it appears from the provided evidence that the Incident Report was written by David Meza (“Meza”), an employee of Defendant. (Exh. E.) The incident report was written after Plaintiff’s slip and fall incident. The question is whether David Meza’s report is privileged.\

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, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729.)¿ 

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D.I. Chadbourne, Inc. 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].)¿ 

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

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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;¿ 

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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;¿ 

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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;¿ 

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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;¿ 

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(Id. at 737.)¿¿ 

Here, it appears that Meza worked for Defendant. It also appears that the incident report arose from Meza’s employment as the statement is required in the ordinary course of the corporation's business (creation of a report after every customer-related accident occurs). (See Opposition, Decl. Katy A. Cummings ¶¶ 8-9.) Based on this, the next step laid out by D.I Chadbourne is that the privilege rests on the employer’s purpose in requiring the report. Defendant provides that the incident report was prepared in anticipation of litigation and the purposes of the report are (1) for transmission to Defendant’s counsel and (2) for preservation of information for counsel should the accident result in litigation.

“Once a party claims the attorney-client privilege, the communication sought to be suppressed is presumed confidential. A party opposing the privilege has the burden of proof to show the communication is one not made in confidence. (Cal. Evid. Code, § 917.) However, the party claiming privilege has the burden to show that the communication sought to be suppressed falls within the terms of the statute.” (Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 825.)

Here, attorney-client privilege is claimed, Defendant has shown that the Incident Report falls within the terms of the statute and is protected under D.I. Chadbourne, Inc.

Plaintiff has not shown that the communication was one not made in confidence.

Accordingly, the Incident Report is privileged under California statute and case precedent and need not be compelled.

1. Requests No. 28 and 29

RFPs No. 28 and 29 focus on Defendant’s policies and procedures.

Defendant’s objections read:

RESPONSE TO REQUEST NO.28: OBJECTION. Responding Party objects to this Demand on the grounds that it potentially includes the production of documents which reflects, through organization and specification of information and documentation, an attorney’s impressions, conclusions, opinions or legal research or theories in violation of the attorney-client privilege and/or the attorney work product doctrine. Responding Party objects to this Demand on the grounds that it is vague and ambiguous, and therefore unintelligible, as to the term/phrase “SUBJECT LOCATION,” which is not a defined term. Responding Party objects to this Demand on the grounds that it seeks the production of confidential proprietary information and trade secrets.

RESPONSE TO REQUEST NO.29: OBJECTION. Responding Party objects to this Demand on the grounds that it potentially includes the production of documents which reflects, through organization and specification of information and documentation, an attorney’s impressions, conclusions, opinions or legal research or theories in violation of the attorney-client privilege and/or the attorney work product doctrine. Responding Party objects to this Demand on the grounds that it is vague and ambiguous, and therefore unintelligible, as to the term/phrase “SUBJECT LOCATION,” which is not a defined term. Responding Party objects to this Demand on the grounds that it seeks the production of confidential proprietary information and trade secrets.

(Defendant’s Separate Statement pp. 9 and 16.)

Plaintiff provides the same argument as in RFP No. 21 for RFPs No. 28 and 29’s arguments in support of additional response.

Defendant presents that the only responsive document to RFPs No. 28 and 29 withheld is the Superior Grocers Customer Incident Protocols which was created under the advice of counsel and contain counsel’s recommendations regarding how to respond to an incident that may result in litigation. Defendant argues that the protection afforded by privilege is (1) not limited to writings of a lawyer in anticipation of a lawsuit, (2) it applies to writings of an attorney while acting in a non-litigation capacity, and (3) it is also not limited to those documents created by an attorney personally but is equally applicable to documents produced by a non-attorney. Plaintiff cites (Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 647 (“Rodriguez”) and Scottsdale Ins. Co. v. Superior Court of Los Angeles County (1997) 59 Cal.App.4th 263, 273 (and related string cites) to support its argument. Defendant presents that its policies and procedures fall under this precedent as the policies and procedures at issue were prepared by Defendant’s legal department and were communicated by Defendant’s legal department as legal advice on how to investigate any incidents involving an injury and, as such, contain the conclusions, opinions and recommendations of Defendant’s corporate counsel.

Defendant has another argument that, in these RFPs, “SUBJECT LOCATION” is capitalized in the request as if it is a defined term, when no definition is provided in the request; therefore, the RFPs are vague as to what the term means. The Court is unpersuaded by this argument. It is likely that this “SUBJECT LOCATION” was a scrivener’s error as “SUBJECT PREMISES” is defined. Additionally, Defendant is aware of which store Plaintiff fell in, 38360 20th St. E., Palmdale, CA 93550, and the location in the store of where the incident occurred.

First, the Court notes that the section of Rodriguez discussing Miller’s writings is regarding Miller, an investigator acting as agent for the attorney, and taking notes on a witness’ statement. This section of Rodriguez was overruled in Coito v. Superior Court (2012) 54 Cal. 4th 480, 142 where the Coito Court held that a witness statement taken by an attorney does not, as a matter of law, constitute work product.

Second, while Defendant has an ibid. citation for the following quote, it is not found in either Code Civ. Proc. § 2030.290; Scottsdale Ins. Co. v. Superior Court of Los Angeles County (1997) 59 Cal.App.4th 263, 273; or Exhibit A.): “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.” The Court has found this quote in the string cited case State Comp. Insurance Fund v. Superior Court (2001) 91 Cal.App.4th 1080.

Defendant’s arguments do not focus on trade secrets despite its assertion of such in its initial objections to RFPs No. 28 and 29.

Documents privileged under the attorney work product doctrine are exempt from disclosure under the Civil Discovery Act. (County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 64.) The purpose of the attorney work product doctrine is to preserve the rights of attorneys in the preparation of their cases and to prevent attorneys from taking advantage of the industry and creativity of opposing counsel. (Code Civ. Proc., § 2018.020.) The doctrine, however, “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.” (County of Los Angeles v. Superior Court (2000) 82 Cal.App.4th 819, 833 [citing Rumac, Inc. v. Bottomley (1983) 143 Cal. App. 3d 810, 815].)

The attorney work product doctrine absolutely protects from discovery writings that contain an “attorney's impressions, conclusions, opinions, or legal research or theories.” (Cal. Code Civ. Proc., § 2018.030(a).) “General work product (Code Civ. Proc., § 2018.030, subd. (b)) is entitled to conditional or qualified protection. (Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810, 815 [192 Cal. Rptr. 104].) Whether specific material is protected work product must be resolved on a case-by-case basis. (Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 135 [86 Cal. Rptr. 2d 180].) ‘[I]n camera inspection is the proper procedure to evaluate the applicability of the [attorney] work product doctrine to specific documents, and categorize whether each document should be given qualified or absolute protection.’ (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 121 [68 Cal. Rptr. 2d 844] (Wellpoint).)” (League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 993.) The person claiming protection under the attorney work product doctrine bears the burden of proving the preliminary facts to show the doctrine applies. (Ibid. [citing Mize v. Atchison, T. & S. F. Ry. Co. (1975) 46 Cal.App.3d 436, 447].)

Here, Defendant’s privileged log states only that the reason it is withheld is “Attorney work product privilege/ attorney client privilege.” (Opposition, Exh. E.) The declaration of Defendant’s counsel states: “These policies and procedures were created under the advice of counsel and contain counsel’s recommendations regarding how to respond to an incident that may result in litigation. They were prepared by Super Center’s legal department and were communicated by Super Center’s legal department as legal advice on how to investigate any incidents involving an injury.” (Opposition, Decl. Katy A. Cummings ¶ 10.) The Court also notes that underneath the two rows in the privilege log, there is a comment that “[t]he Privilege Log does not include correspondence, internal notes/memoranda, and/or any communications between Tyson & Mendes, LLP and representatives of Super Center Concepts or its Insurer (that have not been shared with any third party). (Opposition, Exh. E.) As there is no corresponding asterisk mark, the Court cannot tell if this means that the items listed in the privilege log do not contain any communications between Tyson & Mendes, LLP and representatives of Super Center Concepts or its Insurer or the privilege log itself.

The declaration and argument provided does not show that the e-mails contain the “impressions, conclusions, opinions, or legal research or theories” of either Tyson & Mendes, LLP attorneys or whomever drafted the policies and procedures acting as counsel for Defendant.

The Court believes that an in-camera review is needed to protect the interests of justice. (See Cal. Evid. Code § 915(b).)  

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Plaintiff Nellie Reyes’ Motion to Compel Defendant’s Further Responses to Request for Production of Documents, Set One is DENIED in part and GRANTED in part.

Request for Production No. 21 seeking that the Incident Report be compelled is DENIED.