Judge: Stephen P. Pfahler, Case: 20STCV44809, Date: 2023-09-26 Tentative Ruling

Case Number: 20STCV44809    Hearing Date: September 26, 2023    Dept: F49

Dept. F-49

Date: 9-26-23

Case #20STCV44809

TRIAL DATE: (vacated 11-13-23 c/f 11-14-22)

FURTHER RESPONSES

MOVING PARTY: Defendant, Associated Tank Constructor, Inc.

RESPONDING PARTY: Plaintiffs, Katarina Ford, et al.

RELIEF REQUESTED

Motion to Compel Further Responses to Requests for Production of Documents

SUMMARY OF ACTION

Plaintiffs, Katarina Ford, et al. own and/or occupy certain homes in Stevenson Ranch and Valencia. From approximately June 2020 to October 2020, Defendant Associated Tank sandblasted a water tank in proximity to the homes, thereby causing the disbursement of “abrasives, particulates, and other toxins into the air” into the community. Plaintiffs allege the manifestation of physical symptoms, property damage, and emotional impacts, as well as interference/loss of use of property.

The work was contracted by Defendants Five Point Holdings, LLC, et al., who are developing an adjacent community and were required to construct said water tank for service to the new community. Occasion

On November 23, 2020, Plaintiffs filed their complaint for Trespass, Private Nuisance – Continuing, Public Nuisance – Continuing, Negligence, Inverse Condemnation, Strict Liability for Ultrahazardous Activity, Intentional Infliction of Emotional Distress, and Fraudulent Concealment. On May 3, 2021, Plaintiffs filed their first amended complaint. On July 29, 2021, Plaintiffs filed their 261 paragraph second amended complaint. On January 10, 2022, Plaintiffs filed their third amended complaint. (All amended complaints were filed via stipulation.)

On May 27, 2022, the court denied plaintiff Sandra Enerle’s motion for leave to file a late government claim against the City of Santa Clarita/Santa Clarita Water Agency.

Dozens of requests for dismissals by Plaintiffs have been filed since September 10, 2021. On April 20, 2023, the court entered the order for terminating sanctions dismissing Shelitta Castille, Paul Chun, Kimlien Do, Jason VanBennekum, Jessica Thompson, Jason Thompson, David Nguyen, Kimberly Kim, and Kyung Kim with prejudice.

RULING: Denied.

Defendant Associated Tank Constructors, Inc. (Tank) moves to compel further responses to Request for production of documents sanctions against all remaining plaintiffs identified in the motion. Tank contends the responses lack a proper statement of compliance, the responses contain improperly redacted items, challenges the validity of the objections, and at a minimum, contends Plaintiffs should produce a privilege log. Plaintiffs in opposition challenge the motion as failing to meet the burden showing a deficiency in the responses, the separate statement lacks sufficient information regarding the dispute, and on the merits, contends the responses are both code compliant and the objections meritorious. Tank in reply denies seeking any attorney product privileged documents, and even if attorney work product, good cause for production exists. Tank reiterates the lack of code compliant responses, and maintains its separate statement complies with California Rule of Court rule 3.1345.

On compliance with the responses, the parties dispute the required language. Plaintiffs present objections and “without waiving” said objections, identify certain documents, but fail to confirm a promise of actual production pursuant to Code of Civil Procedure section 2031.210. Plaintiffs counter that the responses comply with Code of Civil Procedure section 2031.240, whereby the basis of the objections were stated and production was implicitly completely of non-privileged documents. It appears from the substance of the motion itself that documents were in fact produced. Plaintiffs also represent production of a privilege log notwithstanding the argument for production of a privilege log in the motion. The response represents standard practices for a response regarding reservation of objections, and production. A requirement for an additional statement requiring confirmation places form over substance. Tank may serve a demand for supplemental production in case of concern for any additional withheld information. The responses are sufficiently code compliant.

The court cannot otherwise verify production of a privilege log. Counsel only addresses a privilege log associated with the deposition of David Gold. [Declaration of Maria Weitz, ¶ 8, Ex. 7.] The court declines to determine how and whether said privilege log overlaps with the subject request.

On the separate statement, the court finds the separate statement sufficiently addresses the dispute and complies with statutory requirements. (Cal. Rules of Court, rule 3.1345(c).)

The parties dispute over objections involves two specific areas: attorney work product and premature expert disclosure.

The work product privilege applies where the sought-after documents contain Defendant’s “impressions, conclusions, opinions or legal research or theories,” the information is protected by the work product doctrine. (Code Civ. Proc., § 2018.030(c).) “An objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney's tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts”].) (Coito v. Superior Court (2012) 54 Cal.4th 480, 502.) Notes, statements, and impressions of the case are protected by the work product doctrine. A list of potential witnesses is not work product. (Id., at p. 495; Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217–218.)

The objection addresses sought after testing information done by the above referenced expert David Gold. Expert work conducted at the request of an attorney constitutes attorney work product privileged information. (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 688.) The court finds no basis of waiver simply based on the announcement of testing itself in that there is no evidence of any disclosure of any results with persons outside the scope of the attorney sphere of protection. (Regents of University of California v. Superior Court (2008) 165 Cal.App.4th 672, 679.) Tank in reply denies it seeks any such commissioned materials, and otherwise challenges the basis of the privilege in that Plaintiffs supplied samples which were then tested at third party laboratories. Tank maintains prejudice in attempting to replicate the tests, due to the change in conditions following the initial gathering of samples.

Nothing in the reply establishes that the commissioned lab work was anything other than ordered by counsel. The court finds the lab tests therefore remain protected by the work product privilege.

The parties otherwise agree that any and all test results will be disclosed during expert witness testimony, if applicable. Tank challenges waiting for this period of time, and argues a shorter period of time should apply. The court finds no basis for a showing of prejudice as a result of waiting. (Armenta v. Superior Court (2002) 101 Cal.App.4th 525, 536.) The court therefore also concludes no showing of support for imposing a shorter time period thereby overruling the objection to premature expert disclosure. (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 295.)

The motion is denied. No sanctions requested by Plaintiffs.

Motion to Quash set for February 16, 2024.

Moving parties to give notice.