Judge: Wesley L. Hsu, Case: 22PSCV02678, Date: 2023-05-04 Tentative Ruling
Case Number: 22PSCV02678 Hearing Date: May 4, 2023 Dept: L
Plaintiff Lynford Ellingson’s
Motion to Compel Further Responses to Requests for Production, Set One, and for
Production of Those Documents Requested Therein is GRANTED. Sanctions are
awarded in the reduced amount of $935.00 and are payable within 30 days from
the date of the notice of ruling.
Background
Plaintiff Lynford
Hartley Ellingson (“Plaintiff”) alleges as follows: Plaintiff sustained
injuries in a May 29, 2021 motor vehicle accident.
On December 9, 2022,
Plaintiff filed a complaint, asserting causes of action against Defendants Omar
Valentin Campos Sandoval (“Sandoval”), Metro Deliveries and Logistics LLC
(“Metro”) and Does 1-50 for:
1.
Motor Vehicle
2.
General Negligence
On April 12, 2023,
Plaintiff filed an “Amendment to Complaint,” wherein Amazon.com, Inc. was named
in lieu of Doe 1. On April 13, 2023, Plaintiff filed three “Amendment[s] to
Complaint,” wherein Amazon.com Logistics, Inc. was named in lieu of Doe 2,
Amazon.com, LLC was named in lieu of Doe 3 and Amazon.com, Services, LLC was
named in lieu of Doe 4.
A Case Management
Conference is set for May 17, 2023.
Legal Standard
“[T]he
demanding party may move for an order compelling further response to the demand
if the demanding party deems that. . . (1) A statement of compliance with the
demand is incomplete. (2) A representation of inability to comply is
inadequate, incomplete, or evasive [and/or] (3) An objection in the response is
without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)
The moving party must demonstrate a
“reasonable and good faith attempt” at an informal resolution of each issue
presented. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) “In lieu of
a separate statement required under the California Rules of Court, the court
may allow the moving party to submit a concise outline of the discovery request
and each response in dispute.” (Code Civ. Proc., § 2031.310, subd. (b)(3).)
A motion to compel further responses to a demand for
inspection or production of documents must “set forth specific facts showing
good cause justifying the discovery sought by the demand.” (Code Civ. Proc., §
2031.310, subd. (b)(1).) If the moving party has shown good cause for the
production of documents, the burden is on the objecting party to justify the
objections. (Kirkland v. Superior Court
(2002) 95 Cal.App.4th 92, 98.)
Notice
of the motion must be provided “within 45 days of the service 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 . . .” (Code Civ. Proc., § 2030.310, subd. (c).)
“[T]he court shall impose a monetary sanction. . . against
any party, person, or attorney who unsuccessfully makes or opposes a motion to
compel further response to a demand, unless it finds that the one subject to
the sanction acted with substantial justification or that other circumstances
make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.310,
subd. (h).)
Discussion
Plaintiff moves
the court for an order compelling Metro and Sandoval to serve further responses
to Plaintiff’s Requests for Production of Documents, Set One (i.e., Nos. 1, 2
[Metro only] and 3 [Sandoval only]). Plaintiff also seeks sanctions against Metro
and Sandoval in the amount of $3,910.00.
As a preliminary matter, the court notes that Exhibit 1 to
the Declaration of David Yerushalmi (“Yerushalmi”) is comprised of what appears
to be two copies of Plaintiff’s Request for Production of Documents, Set One
propounded to Sandoval. It does not appear that Yerushalmi has attached
a copy of Plaintiff’s Request for Production of Documents, Set One propounded
to Metro. Exhibit 2, however, includes a copy of Sandoval’s and Metro’s
respective responses; said responses set forth the text of each of the
requests. The court, then, will proceed to the merits of the motion as it
pertains to Metro and Sandoval.
The parties’ dispute pertains to Metro’s and Sandoval’s
withholding of three photographs which were allegedly prepared on May 29, 2021
by an “[u]nknown employee of Metro,” the recipient of which was “Defendants’
Insurance Adjuster.” Metro and Sandoval have provided a privilege log
indicating that the aforesaid photographs are being withheld from production on
the following basis: “Prepared in anticipation of litigation. Attorney client
privilege.”
Plaintiff’s motion focuses on the attorney work product
protection, rather than the attorney-client privilege; with that said, the
burden lies with Metro and Sandoval. (O&C Creditors Group, LLC v.
Stephens & Stephens XII, LLC (2019) 42 Cal.App.5th 546, 561
[“While
attorney-client communications are presumed to be confidential (Evid. Code., §
917), the party claiming the attorney-client privilege as a bar to disclosure
has the burden of showing that the communication sought to be suppressed falls
within the parameters of the privilege”].)
Metro and Sandoval have not met their burden. Evidence Code §
952 defines a “confidential communication between client and lawyer” as “information
transmitted between a client and his or her lawyer in the course of that
relationship and in confidence by a means which, so far as the client is aware,
discloses the information to no third persons other than those who are present
to further the interest of the client in the consultation or those to whom
disclosure is reasonably necessary for the transmission of the information or
the accomplishment of the purpose for which the lawyer is consulted, and
includes a legal opinion formed and the advice given by the lawyer in the
course of that relationship.”
Also, “a report or other communication made by an insured to
his liability insurance company, concerning an event which may be made the
basis of a claim against him covered by the policy, is a privileged
communication, as being between attorney and client, if the policy requires the
company to defend him through its attorney, and the communication is intended
for the information or assistance of the attorney in so defending him.” (Travelers
Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436, 448-449
[quotation marks and citation omitted].)
Metro’s and Sandoval’s counsel, Cynthia Pham (“Pham”),
attests that the three photographs “were prepared for insurance purposes in
anticipation of litigation” “by a Metro Deliveries and Logistics LLC’s
employee” (Pham Decl., ¶¶ 8 and 10), that Metro employed Sandoval as its
delivery driver at the time of the subject accident (Id., ¶ 16) and that
Old Republic Union Insurance Company is Metro’s automobile liability insurance
carrier (Id., ¶ 15, Exh. B.)
With that said, the three photographs do not constitute a “report
or other communication” for purposes of applying the attorney-client privilege.
The caselaw cited by Metro and Sandoval, Scripps Health v. Superior Court (2003)
109 Cal.App.4th 529 and Travelers, supra, 143 Cal.App.3d 436
is distinguishable from the case at hand. In Scripps Health, the Court
of Appeal ordered issuance of a writ of mandate directing the trial court to
vacate its order granting plaintiffs’ motion for production of occurrence
reports which were prepared by hospital employees primarily for the purpose of
attorney review, on the basis that they were protected by the attorney-client
privilege. In Travelers, the Court of Appeal issued a peremptory writ of
mandate directing the trial court to set aside its order requiring the
production of certain documents comprising communications between defendants
attorney and his insurance carriers in the period between the date the
underlying lawsuit giving rise to the instant legal malpractice action was
dismissed and the date defendant attorney was discharged by plaintiff; in doing
so, the Court of Appeal determined that the trial court in concluding there was
no privilege with respect to communications during the above time period and
that it should have determined whether the dominant purpose of each
communication was for transmittal to an attorney in the course of professional
conduct, in which event the privilege would apply.
Again, the instant matter does not involve reports, but
photographs. The court believes the distinction made by courts between
derivative and nonderivative material in cases involving attorney work product
protection is applicable in this instance; that is, that derivative material
such as diagrams, audit reports, appraisals, and other expert opinions
developed in preparation for trial is protected, whereas nonderivative
material, which is only evidentiary in nature, is not so protected. (Mack v.
Superior Court In and For Sacramento County (1968) 259 Cal.App.2d 7, 10;
See Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The
Rutter Group 2022) 8:243-8:243.2. The motion is granted.
Sanctions
Again, Plaintiff seeks sanctions
against Metro and Sandoval in the amount of $3,910.00 [calculated as follows: 6.5 hours preparing motion,
plus 0.5 hours reviewing opposition, plus 2 hours preparing reply, plus 2.5
hours preparing for and attending hearing at $350.00/hour, plus $60.00 filing
fee].
Utilizing a Lodestar approach, and
in view of the totality of the circumstances, the court finds that the total
and reasonable amount of attorney’s fees and costs incurred for the work
performed in connection with the pending motion is $935.00 (i.e., 2.5 hours at
$350.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days from
the date of the notice of ruling.