Judge William A. Crowfoot, Case Number: 19STCV09832, Date: 2023-05-02 Tentative Ruling

Judge: William A. Crowfoot, Case: 19STCV09832, Date: 2023-05-02 Tentative Ruling

This is a subrogation action by plaintiff Barrett Business Services, Inc. (“Plaintiff”), a workers’ compensation insurance company, against defendants Lakeview Cheese Co LLC (“Lakeview”) and David Chu (“Chu”) (collectively, “Defendants”). Plaintiff alleges that on April 27, 2018, Chu negligently operated a motor vehicle while in the course and scope of his employment with Lakeview and caused injury and damages to Anthony Soza (“Soza”), who was acting in his course and scope of employment with Harry’s Glass Shop, Inc. (“Harry’s Glass Shop”). Plaintiff provides workers’ compensation insurance to Harry’s Glass Shop and seeks to recover from Defendants the payments made to Soza pursuant to the insurance policy.
Before the Court is Plaintiff’s motion for an order compelling Lakeview to serve further responses to Request for Production of Documents, No. 1. In its notice of motion, Plaintiff states that it brings this motion pursuant to CCP 2031.300(b), which provides that a party making a demand for production “may move for an order compelling response to the demand” if the party to whom the demand is directed “fails to serve a timely response.” However, on July 28, 2022, the Honorable Colin P. Leis already granted Plaintiff’s motion for an order compelling Defendants to serve further responses to Request for Production of Documents, No. 1. Defendants were ordered to serve verified Code-compliant further responses within 20 days of the date of the order. Therefore, the correct statutory provision for Plaintiff’s motion would be CCP 2031.310(i), which states: “If a party then fails to obey the order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction. . . . In lieu of or in addition to this sanction, the court may impose a monetary sanction. . . .” (Code Civ. Proc., § 2031.310, subd. (i).)

Plaintiff takes issue with the supplemental response and privilege log that Lakeview provided on September 28, 2022. Plaintiff is also dissatisfied with the amended privilege log that Lakeview provided on November 10, 2022. Plaintiff argues that the privilege logs are inadequate because they do not identify the specific privilege asserted or the law which deems the information confidential and protected, nor do the logs include sufficient information allowing Plaintiff to determine whether the documents are in fact privileged. Plaintiff asks the Court order Lakeview to: (1) retract its privilege log and produce all responsive documents after Lakeview failed to provide supplemental responses in accordance with an order issued on July 28, 2022 by the Honorable Colin P. Leis, or alternatively (2) provide a “new and appropriate privilege log” so that Plaintiff may evaluate Lakeview’s claimed privileges. Plaintiff also requests the Court impose sanctions for its failure to comply with the Court’s July 28, 2022 Order and misuse of the discovery process.

As an initial matter, the Court finds that Plaintiff’s request for sanctions is deficient. “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (Code Civ. Proc., § 2023.040.) Plaintiff neither states in its notice of motion that it is seeking sanctions nor identifies the type of sanction sought or on whom the sanctions are to be imposed. Therefore, to the extent that Plaintiff moves for sanctions, the motion is DENIED.

This leaves Plaintiff’s request for an order that Lakeview either retract or amend its privilege log. When documents responsive to a document request are withheld on grounds of privilege, a privilege log or some equivalent must be supplied stating any asserted objection to production. (Roche v Hyde (2020) 51 Cal.App.5th 757, 814. This requirement is codified in Code of Civil Procedure section § 2031.240 which states, in relevant part: “If 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.” The 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 production of documents. (Catalina Island Yacht Club v Superior Court (2015) 242 Cal.App.4th 1116, 1125.) In turn, the purpose of providing a specific factual description of documents is to permit a judge to evaluate the claim of privilege. (Id. at p. 1125.) A privilege log typically should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document's date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted. (Id. at p. 1130.)

The Court agrees that Lakeview’s privilege log is inadequate. However, it is unable to order Lakeview to “retract” its privilege log and produce all responsive documents. (Id. at p. 1126.) Instead, the Court orders that Lakeview provide a supplemental privilege log within 5 days of the date of this ruling that identifies each document the responding party claims is privileged, the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document's date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted. If Plaintiff finds that the supplemental log is still deficient, Plaintiff may request sanctions in a subsequent motion as long as they are properly noticed.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.