Judge: Teresa A. Beaudet, Case: 20STCV12581, Date: 2023-05-17 Tentative Ruling

Case Number: 20STCV12581    Hearing Date: May 17, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff William Cabrera (“Cabrera”) filed this action on March 30, 2020 against Defendants Olio Creative, Inc. (“Olio”), Donald Plante, aka Marshall Plante, Natalie Westerfield, and O.D. Welch (collectively, “Defendants”), asserting a number of causes of action. On October 14, 2020, Olio filed a Cross-Complaint against Cabrera, alleging one cause of action for breach of contract. 

On January 27, 2022, the parties participated in an Informal Discovery Conference (“IDC”). The Court’s January 27, 2022 minute order provides, inter alia, that “[t]he parties agree and the Court orders as follows…[o]n or before 02/14/22, Defendant Olio Creative will serve by email a complete, code compliant verified response to Plaintiff’s document request and produce the documents identified in the response. Defendant Olio contends that it is entitled to respond with objections; Plaintiff contends that the objections were waived. If Defendant Olio withholds any documents based on the objections, such as a privilege or privacy objection, Defendant Olio must also serve via email a code-complaint privilege log with the response to the document request.” The January 27, 2022 minute order also provides that “[t]he parties agree to meet & confer again after Defendant Olio responds to the requests for production regarding any objections made and documents withheld. If that issue is not resolved, Plaintiff may file an amended motion to compel further on that issue to be heard on 06/29/22 (or at an earlier date if one becomes available or the date is advanced via ex parte application).” 

Thereafter, Cabrera filed an Amended Motion to Compel Further Responses to Request for Production of Documents, Set One, which was heard on June 29, 2022. The Court’s June 29, 2022 Order provides, inter alia, that “Cabrera’s motion to compel further responses is granted as to Request No. 15. The Court orders Olio to produce a further verified response to this request within 30 days of the date of this order…On or before July 11, 2022, counsel for Defendants will serve a privilege log for any documents w/held that were covered by the Court’s previous order and this order re Request 15.”

Cabrera’s counsel indicates that on July 12, 2022, she received an email from defendant’s counsel providing a privilege log. (Opri Decl., ¶ 4.)[1] In addition, on or about July 12, 2022, Cabrera’s counsel received Defendant’s supplemental response to Request No. 15, which was accompanied by documents Bates Stamped Nos. 655-815. (Opri Decl., ¶ 5.) Cabrera’s counsel asserts that these documents were not responsive to Request No. 15. (Ibid.) Cabrera’s counsel also asserts that Defendant’s privilege log was incomplete and not Code-compliant. (Opri Decl., ¶ 6.)

Cabrera now moves “for a further order to compel a further response to Request No. 15 and for further responsive privilege log and for evidentiary and/or monetary sanctions against defendant and/or his counsel in the amount of $6,249.15 for failure to comply with this court’s January 27, 2022 and June 29, 2022 orders.” Olio opposes. 

Request for Judicial Notice

The Court grants Cabrera’s request for judicial notice.

Discussion

A.    Privilege Log

As set forth above, Cabrera’s counsel indicates that on July 12, 2022, she received an email from defendant’s counsel providing a privilege log. (Opri Decl., ¶ 4, Ex. C.) Cabrera asserts that “Defendant’s…privilege log was both incomplete and not Code compliant as required…” (Opri Decl., ¶ 6.)

Pursuant to Code of Civil Procedure section 2031.240, subdivision (c)(1), “[i]f 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.”  Pursuant to Code of Civil Procedure section 2031.240, subdivision (c)(2), “[i]t 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.”

Cabrera cites to Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1120-1121, where the Court of Appeal noted that “[w]hen confronted with a deficient privilege log that fails to provide the necessary information to rule on attorney-client and work product objections, a trial court may order the responding party to provide a further privilege log that includes the necessary information to rule on those objections, but may not order the privileges waived because serving a deficient privilege log, or even failing to serve a privilege log, is not one of the three statutorily authorized methods for waiving the attorney-client privilege. The court may impose monetary sanctions for providing a deficient privilege log, and it may impose evidence, issue, and even terminating sanctions if the responding party persists in its failure to provide the court with the information necessary to rule on the objections’ merits, but a forced waiver is not authorized by either the statutory scheme establishing the attorney-client privilege or the discovery statutes once the responding party preserves the objections by timely asserting them in response to an inspection demand.”

As to the privilege log provided here (Exhibit C to the Declaration of Debra Opri), Cabrera asserts that “it is not clear whether on the hundreds of emails referenced if there was more than one recipient or if anyone was cc’d on the email. Further, emails between Attorney Paul Marks and John Gordon, are not privileged, as John Gordon is not a party to the action nor clearly identified as an attorney representing any Defendant, and hence all of the emails that John Gordon is copied on thus waives the attorney client privilege.” (Mot. at p. 6:9-14.)

In the opposition, Olio asserts that “to the extent Plaintiff’s counsel, Debra Opri, is arguing that she did not know that John Gordon, mentioned in the privilege log, is an attorney that represented all of the defendants before they appeared in this action…that position is patently false. Ms. Opri had numerous communications with Mr. Gordon before defendants appeared, as evidenced by Plaintiff’s opposition to defendants’ motion for relief from default, attached hereto.” (Opp’n at p. 3:18-23.) Olio attaches to the opposition a document titled, inter alia, “Plaintiff’s Opposition to Motion Requesting Relief, and to Set Aside Default Pursuant to CCP 473…” This document states, inter alia, that “Plaintiff herein must respectfully dispute the entirety of Defendants’ factual arguments presented in their moving papers. They fail to present the accurate facts. First, this is not Defendants’ first attorney, John Gordon, Esq. was…” Cabrera does not respond to this point in the reply.

Cabrera also contends that “any objections regarding tax documents have now been waived, due to defendant’s prior consensual partial production of tax documents.” (Mot. at        p. 6:15-16.) As noted by Olio, Cabrera does not provide evidence to support this argument.

Cabrera also asserts that “Defendant’s log lists the documents withheld, which makes it impossible for Plaintiff to determine to which Request Defendant has responded…Defendant asserted a privilege for Requests Nos. 1, 2, 3, 6, 10, 16, 17, 18, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, and 52. Defendant’s privilege log fails to address these Requests numerically making it impossible to determine what privilege is still asserted…” (Mot. at p. 7:12-18.) In the opposition, Olio asserts that “[n]one of Plaintiff’s cited cases state that a privilege log needs to identify each request that each document is responsive to. Such a position is contrary to the law.” (Opp’n at p. 3:15-17, emphasis omitted.)

Olio asserts that its privilege log is Code-compliant. Olio cites to Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 291, footnote 6, where the Court of Appeal noted that “[t]he [trial] court had described a ‘privilege log’ in its earlier ruling with regard to the request for production of documents, as a one that identifies each document for which a privilege is claimed, with its author, date of preparation, all recipients, and the specific privilege claimed.” Olio asserts that the privilege log it produced (Opri Decl., ¶ 4, Ex. C), contains the foregoing information.

However, Code of Civil Procedure section 2031.240, subdivision (c)(1) provides that “[i]f 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. (Code Civ. Proc.,      § 2031.240, subd. (c)(1).) As Olio’s privilege log does not identify which request(s) the subject documents are responsive to, Cabrera would be unable evaluate the merits of any particular objections. In addition, in Catalina Island Yacht Club, the Court of Appeal noted that “[t]he purpose of a privilege log is to provide a specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production. The purpose of providing a specific factual description of documents is to permit a judicial evaluation of the claim of privilege.” (Catalina Island Yacht Club v. Superior Court, supra, 242 Cal.App.4th at p. 1125 [internal quotations and reference to [Citation.] omitted].)  

Based on the foregoing, the Court finds that Cabrera has demonstrated good cause for a further privilege log.

B.    Request No. 15

Next, Cabrera asserts that “defendant failed to properly respond to Request No. 15 as ordered by the Court.” (Mot. at p. 7:24-25.) As discussed, the Court’s June 29, 2022 Order provides, inter alia, that “Cabrera’s motion to compel further responses is granted as to Request No. 15. The Court orders Olio to produce a further verified response to this request within 30 days of the date of this order…”

As set forth above, Cabrera’s counsel asserts that “[o]n or about July 12, 2022, [she] also received Defendant’s supplemental Response to Request No. 15…This was accompanied by documents Bates Stamped Nos. 655-815. However, these provided documents were not responsive to the Request No. 15…” (Opri Decl., ¶ 5.) Cabrera contends that “[a] good faith further response was not tendered pursuant to the Court’s Order. The Court must make further orders compelling a proper response to this Request.” (Mot. at p. 8:17-19.) 

As noted in the Court’s June 29, 2022 Order, the Court does not issue orders to comply with its orders. The Court notes that if Cabrera seeks to compel additional supplemental responses to Request No. 15, the parties must meet and confer in person or by telephone to try to resolve the responsiveness issue. It appears that Olio and Cabrera may have different points of view as to what is responsive and why that is the case. If the parties are unable to resolve the issue, a further IDC will be necessary.

C.    Sanctions

Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (g).) “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.030, subd. (a).) In addition, “[t]he court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. Proc., § 2023.030, subd. (c).) Further, as set forth above, “[t]he court may impose monetary sanctions for providing a deficient privilege log…” (Catalina Island Yacht Club v. Superior Court, supra, 242 Cal.App.4th at p. 1121.)

            Cabrera asserts that “[a]s this was the second time the court ordered the privilege log and the further responses to the production of documents, defendant, Olio, has failed to abide by a court order which results in evidentiary sanctions, issue sanctions and/or monetary sanctions.” (Mot. at p. 8:27-9:2.) As to the requested evidentiary sanction, Cabrera asserts that “Defendant should not be able to hide behind the privileges, and/or Defendant Olio should not be allowed to produce any evidence at trial concerning the subject matter of each document demand.” (Mot. at p. 9:6-8.)

            In the opposition, Olio asserts that sanctions are not warranted. Olio contends that “[o]n July 11, 2022, Olio (1) produced its verified Supplemental Response to Plaintiff’s Request for Production of Documents, Item No. 15…and (2) served its detailed, 22-page privilege log that references 115 documents and describes the document dates, authors, recipients, content descriptions, and the basis for withholding each of the documents…Thus, Olio complied with both of the Court’s orders.” (Opp’n at p. 2:20-25.) Olio’s supplemental response to Request No. 15 provides, “[a]ll documents relating to the removal of William Cabrera that are in the possession or under the control of this responding party have already been produced. Additional documents relating to shareholders other than William Cabrera are being served together with this response.” (Opri Decl., ¶ 5, Ex. D.)[2] Olio contends that “[i]t appears that Plaintiff seeks to have Olio produce documents that it does not have, which does not make sense.” (Opp’n at p. 4:13-14.)

Based on a consideration of the arguments presented by the parties, the Court does not find that monetary or evidentiary sanctions are warranted against Olio. 

Conclusion

Based on the foregoing, Cabrera’s motion is granted in part and denied in part. The Court orders Olio to serve a further privilege log that identifies which of the subject documents are responsive to each of Cabrera’s request(s). Cabrera’s motion is otherwise denied.

Cabrera is ordered to provide notice of this ruling.

DATED:  May 17, 2023                                 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court