Judge: William D. Claster, Case: 21-01179611, Date: 2022-07-28 Tentative Ruling
1) Defendants’ Motion to Compel Further Deposition Answers
2) Status Conference
Defendants’ motion to compel further deposition answers from non-party deponent Elsa Aguilar is GRANTED to the extent set forth below. Aguilar’s sometime counsel, Employees First Labor Law, P.C. (EFLL), is sanctioned in the amount of $3,340, payable to Defendants by August 28, 2022. Plaintiffs’ cross-request for sanctions is DENIED.
I. Factual Background
The history of LaCour’s representation of Aguilar is both relevant to this motion and somewhat confusing. The Court recounts facts necessary to resolution of this motion.
This matter is an individual action with a PAGA component. Broadly speaking, Plaintiffs allege Defendants violated wage-and-hour laws and that Plaintiffs were constructively terminated for complaining about those violations. Plaintiffs are represented by the EFLL firm and LaCour.
Aguilar, who is not a Plaintiff here, worked for Defendants until July 2020. Defendants claim that on her way out the door, Aguilar stole confidential records, apparently by emailing them to herself. Defendants sent Aguilar a letter threatening suit; they also reported the alleged theft to the Anaheim police. (Mirhosseini Decl. ¶ 2 & Exs. A-B.)
Aguilar did not respond to Defendants’ letter. Defendants did not hear from Aguilar until June 2, 2021, when EFLL sent an amended PAGA letter to Defendants and the LWDA regarding the claims pled in this action. This letter, unlike Plaintiffs’ original letter, named Aguilar as one of the complaining employees. (Mirhosseini Decl., ¶ 4.) Although Aguilar was named in the amended PAGA letter, she has never been party to this case.
Plaintiffs, still represented by EFLL, subpoenaed Aguilar for deposition. Aguilar appeared as required. When Plaintiffs’ counsel finished his questioning, Defendants’ counsel confirmed that Aguilar was appearing under subpoena and had not retained counsel to sue Defendants. (Mirhosseini Decl., ¶ 9.) He then questioned Aguilar about documents Defendants contend she stole from them at the time her employment ended.
As the questioning continued, LaCour—who shortly before had been questioning Aguilar under subpoena—announced: “So at this time, we’re going to take a short break. I think I may retain the deponent. And we’ll be right back.” (Aguilar Depo., 61:1-2 [emphasis added].) When the parties came back from break, LaCour—now representing Aguilar—instructed her not to answer several questions from Defendants’ counsel. He cited the attorney-client privilege and the work product doctrine as grounds for his instruction. Shortly thereafter, LaCour unilaterally ended the deposition even though Defendants’ counsel hadn’t finished questioning.
Defendants moved to compel further responses. The Court denied the motion without prejudice for failure to properly serve Aguilar: LaCour, who suddenly began representing Aguilar in the middle of his own subpoenaed deposition, claimed he was unable to accept service on her behalf. Defendants re-filed the motion, this time with personal service on Aguilar. (See ROA 193.) Both Plaintiffs (through EFLL) and Aguilar (through different counsel) have filed oppositions.
II. Meet and Confer
Plaintiffs argue Defendants failed sufficiently to meet and confer before bringing this motion. The Court disagrees. “The level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) In the context of this case, LaCour’s on-again, off-again representation of Aguilar has introduced considerable confusion about whom Defendants should meet and confer with in the first place. Defendants’ pre-filing letter (Mirhosseini Decl., Ex. G), while perhaps not as robust a meet and confer as the Court would prefer, is sufficient here, particularly when LaCour’s response (Mirhosseini Decl., Ex. H) wholly failed to address the arguments in Defendants’ letter.
III. Merits of Motion
A. Sharing Documents
The first question at issue is:
Q. Did you share the documents that you emailed yourself with anybody?
LaCour instructed Aguilar not to answer on privilege grounds.
A blanket instruction not to answer is improper. The question asks if Aguilar shared the documents with anybody. To the extent Aguilar shared them with her counsel, that would be protected by the attorney-client privilege, and she would be justified in refusing to respond. But if she shared them with anybody else, that wouldn’t be privileged. In particular, if she sent the documents to Plaintiffs themselves, the Court does not see how that would be privileged. Aguilar must answer whether she sent the documents to anyone other than her counsel.
The Court recognizes a background timing issue. Aguilar presumably was a client of EFLL at some point; otherwise, she wouldn’t have been named on a LWDA letter. But then she later wasn’t a client of EFLL, since EFLL questioned her under subpoena, and LaCour decided to “retain” her during the deposition. Suppose that instead of sending the documents to the Plaintiffs themselves, she sent them to Plaintiffs’ counsel, LaCour. Did she send them to LaCour for the purpose of seeking legal advice on her own behalf? Did she send them to LaCour while LaCour was representing her? If the answer to both questions is “no,” the Court does not see how this would be privileged.
Therefore, in addition to answering questions about whether she sent documents to anyone other than her counsel, Aguilar must answer questions sufficient to enable Defendants to understand the timeline of her dealings with EFLL and LaCour. (See State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640 [“Nor does the attorney-client privilege protect independent facts related to a communication; that a communication took place, and the time, date and participants in the communication.”].)
B. Intent for Documents
The second question at issue is:
Q. Okay. The payrolls that you emailed to yourself that were part of my client’s documents, what did you intend to do with those documents?
LaCour objected “as to calling for attorney-client work product what she intended or what I intended to do as it relates to a lawsuit.” He also objected as to “communications with counsel or providing communications to counsel, which we would instruct her not to respond, you may respond if there’s anything else.”
These objections are both improper. The work product doctrine protects an attorney’s work product and mental impressions, not the client’s. (CCP §§ 2018.020, 2018.030.) The attorney-client privilege protects communications between attorney and client. The question doesn’t seek communications. It asks what Aguilar’s intent was.
Aguilar, now represented by different counsel, argues the attorney-client privilege protects the “transmitter’s intended strategy,” so this question is improper. In support, she cites Mitchell v. Superior Court (1984) 37 Cal.3d 591. Mitchell explained: “Furthermore, the privilege covers the transmission of documents which are available to the public, and not merely information in the sole possession of the attorney or client. In this regard, it is the actual fact of the transmission which merits protection, since discovery of the transmission of specific public documents might very well reveal the transmitter’s intended strategy.” (Id., at p. 600.)
Aguilar misreads Mitchell. It stands for the proposition that a party can’t discover the contents of an attorney-client communication simply because the communication itself is public. For example, if the client forwards the attorney a Los Angeles Times article, the communication isn’t unprivileged simply because anyone can easily access the article. The fact that the article was communicated is itself a communication between attorney and client—a communication from client to attorney that the client believes the article is relevant to the representation. Protecting the article from disclosure protects the implied communication, i.e., that the client thought this specific article was important. Mitchell doesn’t protect the client’s intent itself; it protects the implied communication of the client’s intent to the attorney.
Defendants’ question here doesn’t ask about Aguilar’s communications with an attorney. It asks for her intent vis-à-vis the documents, which she may have developed well before speaking to an attorney.
In opposition, Aguilar also notes that on page 59 of the deposition transcript, she testifies, “I retained the documents that I thought were relevant . . . [t]o keeping a record of what I believe was happening at Pacific Stone and it was illegal.” She argues this is responsive to Defendants’ question, and no further response is required. The Court disagrees. The reason Aguilar retained the documents may be the same as what she intended to do with them, but it may not. The Court orders a further response to this question.
C. Communications with LaCour
The third question at issue is:
Q. Ms. Aguilar, of all the documents that you emailed to yourself, at any time, did you give those documents to Mr. LaCour’s office?
LaCour instructed her not to respond on privilege grounds.
Per the above discussion, this objection could be justified depending on the timing of Aguilar’s attorney-client relationship with LaCour. Depending on what further questioning about the timing of the attorney-client relationship reveals, a further response may or may not be required. Because the Court lacks sufficient information to make this decision, it advises the parties that if Aguilar gave documents to LaCour’s office outside the context of any attorney-client relationship, the Court would order a further response.
IV. Sanctions
LaCour’s objections to the first and second questions were without substantial justification. As to the first question, even if the attorney-client privilege might be a valid partial objection, LaCour lacked substantial justification to instruct Aguilar not to answer at all. Again, the question asked for “anybody” she had given the documents to, not just attorneys. As to the second question, Aguilar’s intent is neither an attorney impression protected by the work product doctrine nor a communication protected by the attorney-client privilege. LaCour’s objection to the third question is substantially justified on this record, where the Court lacks information about the specific timing of Aguilar’s attorney-client relationship with LaCour.
Defendants’ notice of motion seeks sanctions against EFLL and Aguilar. Considering the record before the Court, the Court concludes sanctions are appropriate against EFLL, but not Aguilar. The Court finds defense counsel’s hourly rate and claimed hours reasonable. Because LaCour was without substantial justification for two of three objections at issue, the Court will award 2/3 of the sanctions requested, or $3,340.