Cortes v. Amancha, et al. CASE NO. 113CV253317
DATE: 27 June 2014 TIME: 9:00 LINE NUMBER: 17
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 26 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 27 June 2014, the motions of plaintiff Maria Azucena Cortes (“Plaintiff”) to (1) compel further responses to requests for production of documents (“RPD”) served on defendant Texas Instruments (“TI” or “Defendant”) and for monetary sanctions, and (2) compel further responses to form interrogatories (“FI”) served on TI and for monetary sanctions were argued and submitted. Defendant TI filed formal oppositions to each of Plaintiff’s motions. In each of its oppositions, TI seeks the imposition of monetary sanctions in connection with Plaintiff’s motions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Statement of Facts

This is a personal injury action arising from an automobile-versus-pedestrian accident that occurred in the parking lot of the Residence Inn in San Jose.

According to the allegations of the complaint, on the morning of 3 October 2011, Plaintiff—who worked as a maid at the Residence Inn—was backing her cleaning cart down a sloped walkway to the parking lot of the hotel as she was crossing from one building to another doing her chores. As she moved into the parking lot, Plaintiff was struck by a 2011 Hyundai SUV driven by defendant Vinay Amancha (“Amancha”), who was staying as a guest at the hotel.

Plaintiff alleges that she sustained serious injuries as a result of the accident.

Amancha is from India and, at the time of the incident, was here on special assignment for TI and on his way to work for the company. The vehicle Amancha was driving was rented by TI from AVIS Rent A Car System, LLC (“AVIS”). According to the investigating officer’s report of the incident, the foreign driver’s license Amancha presented to AVIS was not valid.

Based upon these allegations, on 19 September 2013, Plaintiff filed an action against Amancha, AVIS, TI, and Does 1 through 50. The complaint alleges that Amancha’s negligent driving caused the accident, that AVIS negligently entrusted the rental vehicle to an unlicensed driver, and that TI should be held vicariously liable for its employee’s negligence.

Discovery Dispute

I. Facts Giving Rise to Plaintiff’s Motion to Compel Further Responses to RPD

On 27 January 2014, Plaintiff served TI with its first set of RPD. The requests collectively seek documents related to Amancha’s employment with TI, documents showing that Amancha was unlicensed to drive a vehicle in the United States, and documents related to TI’s dealings with AVIS.

On 6 March 2014, TI served Plaintiff with initial responses to the RPD. The responses consisted of several objection-only responses.

On 11 March 2014, Plaintiff’s counsel sent defense counsel a meet and confer letter, taking issue with the objections raised to several of the RPD. (Decl. of Philip Tobin in Support of Pl.’s Mot. to Compel Further Answers to FI and Further Responses to RPD (“Decl. of Tobin”), Ex. C.) Defense counsel responded to Plaintiff’s counsel’s letter on 25 March 2014, indicating that TI would provide further responses to some, but not all, of the requests. (Id., Ex. D.)

On 23 April 2014, in accordance with defense counsel’s meet and confer letter, TI served Plaintiff with supplemental responses, which consisted of objection-only responses to some of the requests and hybrid responses (objections following by substantive responses) to other of the requests.

On 7 May 2014, Plaintiff’s counsel sent a meet and confer letter to defense counsel, outlining various perceived deficiencies with the supplemental responses. (Decl. of Tobin, Ex. G.)

On 19 May 2014, TI served Plaintiff with further supplemental responses to the RPD. The responses were accompanied by a letter from defense counsel indicating that “[s]hould you continue to disagree, I would suggest that you go ahead and file your motion.” (Decl. of Tobin, Ex. H.)

On 28 May 2014, remaining unsatisfied with TI’s responses, Plaintiff filed the first motion presently before the Court, seeking an order compelling TI to provide further responses to the RPD.

TI filed an opposition to the motion to compel further responses to the RPD on 16 June 2014, and Plaintiff filed a reply brief on 20 June 2014.

II. Facts Giving Rise to Plaintiff’s Motion to Compel Further Responses to FI

On 27 January 2014, Plaintiff propounded its first set of FI on Defendant.

On 6 March 2014, Defendant served Plaintiff with its verified initial responses to the interrogatories.

On 11 March 2014, Plaintiff’s counsel sent a meet and confer letter to defense counsel concerning TI’s responses to the FI. In the letter, Plaintiff’s counsel took issue with, among other things, TI’s responses to FI Nos. 12.3 (which seeks any written or recorded statements from witnesses concerning the incident), 15.1 (which seeks disclosure of facts supporting denials of allegations in the complaint), and 17.1 (which seeks facts supporting denials of requests for admission).

On 25 March 2014, defense counsel responded to Plaintiff’s counsel’s meet and confer letter, indicating that TI was standing on its objection with regard to FI No. 12.3 and that the substantive responses to FI Nos. 15.1 and 17.1 are adequate.

On 3 April 2014, notwithstanding defense counsel’s statement in her meet in confer letter that TI was sticking with its initial responses, TI served Plaintiff with verified supplemental responses. Following additional correspondence between counsel, TI served Plaintiff with further supplemental responses on 23 April 2014, and a third set of supplemental responses to the interrogatories on 19 May 2014. The third set of supplemental responses was accompanied by a letter from defense counsel indicating that “[s]hould you continue to disagree, I would suggest that you go ahead and file your motion.” (Decl. of Tobin in Support of Pl.’s Motions, Ex. H.)

On 28 May 2014, remaining unsatisfied with Defendant’s responses, Plaintiff filed the second motion presently before the Court, seeking an order compelling Defendant to provide further responses to the FI.

Defendant filed an opposition to Plaintiff’s motion on 16 June 2014, and Plaintiff filed a reply brief on 20 June 2014.

Discussion

I. Motion to Compel Further Responses to RPD

Plaintiff seeks further responses to RPD Nos. 1, 3, 6, 7, 8, 9, 10, and 11. The requests collectively seek three categories of information. The requests in the first category (RPD Nos. 1 and 6) seek documents related to Amancha’s employment with TI. The requests in the second category (RPD Nos. 3 and 7) seek documents submitted by Amancha to TI concerning the accident and documents, including any documents showing that Amancha was not licensed to drive in the United States. The requests in the third category (RPD Nos. 8-11) seek documents reflecting agreements and any document exchanges or communications between TI and AVIS.

A. Legal Standard

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(1) A statement of compliance with the demand is incomplete.
(2)
(3) A representation of inability to comply is inadequate, incomplete, or evasive.
(4)
(5) An objection in the response is without merit or too general. (Code Civ. Proc. [“CCP”], § 2031.310, subd. (a)(1) – (3).)
(6)
The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP, § 2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying the discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

B. RPD Nos. 1 and 6

RPD Nos. 1 and 6 seek documents related to Amancha’s employment with TI. Specifically, RPD No. 1 seeks “All agreements entered into between [TI] and Vinay Kumar Amancha from January 1, 2001 to the present” and RPD No. 6 seeks “All WRITINGS submitted by [TI] to Vinay Kumar Amancha at any time from January 1, 2008 through the present with respect [to] work on [TI’s] behalf.” (Pl.’s Separate Statement in Support of Mot. to Compel Further Responses to RPD (“Pl.’s Separate Statement as to RPD”), pp. 2, 6.)

TI objected to RPD No. 1 on the grounds of vagueness and ambiguity, overbreadth, and undue burden. TI objected to RPD No. 6 on the same grounds and raised an additional objection that RPD No. 6 seeks confidential proprietary information. TI’s supplemental responses and further supplemental responses to both of the requests essentially elaborate on the objections raised in the initial responses.

For instance, the initial response to RPD No. 1 simply objected to the request on the basis of overbreadth, whereas the supplemental response elaborated that “the discovery of all documents over a 12 year period of time exceeds the scope of permissible discovery in that they would be irrelevant to any claim for the incident on October 3, 2011.” (Pl.’s Separate Statement as to RPD, pp. 2-3.)

1. Good Cause

The first question the Court must address is whether Plaintiff has established good cause justifying the discovery. (CCP, § 2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.) As indicated above, to establish good cause, the burden is on Plaintiff to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.)

Concerning good cause, Plaintiff asserts that TI refused to accept service on behalf of Amancha, claiming that he was not its employee, but rather that of a different corporation, Texas Instruments, India. Plaintiff also directs the Court to TI’s responses to Plaintiff’s requests for admissions, in which TI denied that Amancha was acting in the course and scope of his employment at the time of the accident and further denied that it is responsible for any negligence committed by Amancha. (Pl.’s Separate Statement, p. 8.) Plaintiff further points out that TI has characterized Amancha as a “special employee,” calling into question whether Amancha was in fact an employee of TI for the purposes of the respondeat superior analysis. Given these facts, Plaintiff argues that the agreements between Amancha and TI and documents submitted by Amancha to TI are relevant and necessary to evaluate the nature of Amancha’s employment relationship with TI and the level of control TI exerted over his work. (Id., pp. 7-8.)

The Court agrees that good cause exists for the information sought by RPD Nos. 1 and 6. Concerning the law governing vicarious liability, where the employment status of the purported employee is disputed, “[f]olling common law tradition, California decisions . . . declare that ‘[t]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350, citation omitted.) Moreover, while the employer’s right to control the purported employee’s work “is the ‘most important’ or ‘most significant’ consideration, the authorities also endorse several ‘secondary’ indicia of the nature of a service relationship.” (Id., citations omitted.) The secondary indicia of employment status include, among other things, whether the work was performed over a long period of time, whether the defendant agent acted as though they were in an employment relationship, whether the defendant had an unlimited right to end the relationship, and whether the defendant supplied the agent with equipment, tools, and place of work. (S. G. Borello & Sons, Inc., supra, 48 Cal.3d at p. 351, internal citations omitted.)

TI argues that it already admitted that Amancha was a special employee and that the production of documents related to Amancha’s employment status is therefore unnecessary. In light of TI’s responses to Plaintiff’s requests for admissions, in which TI denies liability for Amancha’s negligent conduct, the Court rejects this argument. Given TI’s denials, Amancha’s employment status is disputed, and the agreements between Amancha and TI and any writings submitted by Amancha to TI may contain information related to the secondary indicia of employment status. The Court therefore finds that Plaintiff has demonstrated good cause for the discovery, shifting the burden to TI to justify its objections to the requests. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

2. Objections

a. Vague and Ambiguous

TI objected to RPD Nos. 1 and 6 as vague and ambiguous. In its opposition to Plaintiff’s motion to compel further responses, TI argues that the requests seek “all” agreements and writings and that the requests are vague and ambiguous because “there was not an adequate description of the type of agreement or how the production of such agreements are related or relevant to the subject incident.” (Mem. in Opp. to Pl.’s Mot. to Compel Further Responses to RPD, p. 4.)

TI has misconstrued the nature of an objection on the basis of vagueness. In order to justify a vagueness objection, the responding party must demonstrate that the request at issue is totally unintelligible. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Here, TI’s concern seems to be that the requests are not reasonably particularized as required by Code of Civil procedure section 2030.030, subdivision (c)(1). The failure to reasonably particularize a category of documents, however, is not the same as writing a request that is vague and ambiguous. They are separate objections and reasonable particularization was not raised in TI’s initial responses. The reasonable particularization objection is therefore waived. (See Scottsdale Ins. Co. v. Super. Ct. (1997) 59 Cal.App.4th 263, 273 [waiver occurs where the responding party fails to timely raise an objection in its initial response]; see also CCP, § 2031.240, subd. (b)(2) [requiring responses to inspection demands to set forth objections to requests clearly and with specificity].)

Because TI has failed to show how RPD Nos. 1 and 6 are unintelligible, its vagueness objections to the requests are overruled.

b. Overly Broad

TI objected to RPD Nos. 1 and 6 as overly broad both as to time and scope.

Concerning overbreadth as to time, TI asserts, without further elaboration, that documents from a 13-year period of time is too long. The Court disagrees. As indicated above, the length of time that an agent has worked for an employer is one of the secondary indicia of employment status. (S. G. Borello & Sons, Inc., supra, 48 Cal.3d at p. 351.) The requests are therefore not overly broad as to time and TI’s objection on that basis is overruled.

Concerning the scope of the requests, TI takes issue with the fact that the requests seek “all” agreements and “all” writings. According to TI, “[t]he request for ‘[A]ll’ documents is clearly an inadequate description of what is being sought [and] [i]t is a matter of general knowledge that ‘agreements’ can mean a number of things from agreements to follow policy, to agreements to participate in training, etc.” (Mem. in Opp. to Pl.’s Mot. to Compel Further Responses to RPD, p. 5.) The later statement is fatal to TI’s objection. It appears that “agreements to follow policy” and “agreements to participate in training” are not only contemplated by the requests, but also relevant to the employment status inquiry. Because TI has failed to explain how the requests are so overly broad as to require the production of irrelevant information, the objections on the basis of overbreadth are overruled.

c. Undue Burden

TI objects to RPD No. 1 on the basis of undue burden, asserting that “[t]he request is burdensome and would require hours to review hundreds of documents regarding any instance where [Amancha] may have worked for this defendant as a special employee.” (Pl.s’ Separate Statement as to RPD, p. 3, quoting TI’s further supplemental response.)

A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship, including “evidence showing the quantum of work required.” (West Pico Furniture Co. v. Sup. Ct. (1961) 56 Cal.2d 407, 417-418.) TI has not made a particularized showing or otherwise explained why the production of documents would create a hardship. TI’s objection on the basis of undue burden 1 is therefore overruled.

d. Proprietary Information

TI objected to RPD No. 6 on the ground that the request seeks confidential and proprietary information. In its opposition to Plaintiff’s motion, other than recognizing that the objection was raised, TI does not attempt to explain how the documents sought should be prohibited from disclosure under some theory of privacy or otherwise justify the objection. Because TI has failed to justify the objection, the objection is overruled.

3. Conclusion

In sum, the Court finds that Plaintiff has demonstrated good cause for the information sought by RPD Nos. 1 and 6 and that TI has failed to justify its objections to the requests. Consequently, Plaintiff’s motion to compel further responses to the requests is GRANTED.

C. RPD Nos. 3 and 7

RPD No. 3 seeks documents submitted to TI by Amancha concerning the accident and RPD No. 7 seeks “All licenses in your possession relating to [Amancha].” (Pl.’s Separate Statement as to RPD, pp. 5, 8.)

In its initial response to RPD No. 3, TI objected on the grounds of vagueness and ambiguity, overbreadth, the attorney work product doctrine and what TI refers to as the “common interest/joint defense privilege.” (Id., p. 5.)

In its supplemental response to RPD No. 3, TI reiterated its objections and then provided the following substantive response: “Without waiving the objections, responding party has made a good faith search and conducted a reasonable inquiry and there are no documents in their custody or control that would be responsive.” (Pl.’s Separate Statement as to RPD, pp. 5-6.)

In its further supplemental response to RPD No. 3, TI reiterated that it has “made a good faith search and conducted a reasonable inquiry” and “hereby adds that ‘as they never existed.’” (Id., p. 6.)

In its initial response to RPD No. 7, TI objected on the bases of overbreadth and vagueness, and then provided the following substantive response: “Without waiving the objections, responding party has made a good faith search and conducted a reasonable inquiry and determined that there are no documents that would be responsive to this request.” (Id., p. 8.)

TI’s supplemental response to RPD No. 7 is the same as its initial response. In its further supplemental response, TI states the following:

The response to this request is very clear. A good faith search (diligent search) and reasonable inquiry has been conducted and there are no documents that would be responsive to this request in the possession or under the control of responding defendant. Such a request should be made of Mr. Amancha. (Id., p. 9.)

Plaintiff argues that TI’s substantive responses to RPD Nos. 3 and 7 are not code-compliant. Specifically, Plaintiff points out that Code of Civil Procedure section 2031.230 requires that a representation of an inability to comply with an inspection demand “shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.” Plaintiff asserts that TI’s statement that it has made a “diligent search and a reasonable inquiry” without using the language “in an effort to comply with the demand” renders the responses inadequate. According to Plaintiff “[a] ‘diligent search’ can be made for anything” and “[w]ithout the specific language mandated by the Code, the search could have been made for cotton candy.” (Pl.’s Separate Statement as to RPD, p. 6.)

Plaintiff’s argument is not well-taken. The Code does not mandate the use of specific language in a response. Moreover, TI’s indication that it made a diligent search is tied to the particular requests because, after affirming that a diligent search has been made, TI states that “there are no documents . . . that would be responsive.” (Id.)

TI’s response to RPD No. 3, in which TI affirms that a diligent search has been made and that it is not in possession of documents responsive to the request because such documents never existed is code-compliant. Plaintiff’s motion to compel a further response to RPD No. 3 is therefore DENIED.

Plaintiff also raises the issue that, unlike its response to RPD No. 3, in its response to RPD No. 7 TI has not explained why it is not in possession of the requested documents. As Plaintiff points out, where a party responds to an inspection demand with a statement that it is unable to comply with the demand, Code of Civil Procedure section 2031.230 requires the responding party to “specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” Additionally, “[t]he statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (CCP, § 2031.230.)

TI’s failure to specify the reason it is unable to comply with the request and to set forth Amancha’s address renders the response to RPD No. 7 non-code-compliant. Accordingly, Plaintiff’s motion to compel a further response to RPD No. 7 is GRANTED.

D. RPD Nos. 8-11

RPD Nos. 8-11 seek documents reflecting agreements and any document exchanges or communications between TI and AVIS. RPD Nos. 8 and 10 are illustrative of the nature of this category of requests. RPD No. 8 seeks “ALL WRITINGS reflecting agreements entered into with defendant AVIS in effect at the time of the SUBJECT ACCIDENT” and RPD No. 10 seeks “ALL WRITINGS submitted to YOU by defendant AVIS with respect to the SUBJECT ACCIDENT.” (Pl.’s Separate Statement as to RPD, pp. 10, 16.)

In its initial responses, TI objected to the requests in this category on various grounds, including contractual privacy, vagueness, and overbreadth. TI objected to all of the requests in this category on the grounds of attorney work product and the common interest/joint defense privilege.

In its supplemental responses, TI provided Plaintiff with a privilege log indicating the nature of the documents withheld and in the further supplemental responses, TI provided Plaintiff with an amended privilege log specifying certain documents that had been withheld. It appears that the privilege logs do not specify the names of attorneys that created the documents claimed to be protected by the work product doctrine or who made or received communications that would lay the foundation for an assertion of the attorney-client privilege.

Concerning good cause, Plaintiff contends that “[t]he amount [TI] pays Avis for reduced rental of vehicles may be a key to unlocking what really happened in this case, and who is responsible.” (Pl.’s Separate Statement as to RPD, p. 12.) Specifically, Plaintiff asserts that TI had a rental fleet agreement with AVIS, which typically require an annual payment in exchange for a reduced rental rate, and that given the high volume of rentals by TI, “shortcuts may have been contemplated in renting to [TI] personnel, such as checking the validity of the license or maintaining a record of the renter’s data pursuant to Vehicle Code §§ 14608 and 14609, neither of which occurred in this case.” (Id., emphasis in original.) Based upon these assertions, Plaintiff argues that “Amancha’s ability to rent a vehicle under that circumstance would repudiate [TI’s] position here that he was not its employee or agent at the time of the subject accident.” (Id.) Plaintiff further argues that information exchanged between AVIS and TI concerning the accident, including documents reflecting repairs made to the vehicle, are relevant to determining the force of the impact when the car struck Plaintiff.

The Court agrees that good cause exists for the discovery. If Amancha was given special treatment by AVIS—such as AVIS renting him a vehicle without substantiating that he was legally authorized to drive in the United States—due to his association with TI, such information would operate as secondary indicia that Amancha was an employee of TI. (See S. G. Borello & Sons, Inc., supra, 48 Cal.3d at p. 351 [noting that tools or equipment supplied to an agent by the defendant is secondary indicia of employment status for purposes of the vicarious liability inquiry].) Similarly, the Court agrees that documents concerning the accident exchanged between AVIS and TI, including documents reflecting the repairs made to the vehicle, are relevant for the purposes of discovery and may include information concerning the force of the impact and further information concerning Amancha’s scope of employment.

Based upon the above discussion, the Court finds that Plaintiff has demonstrated good cause concerning the information sought by RPD Nos. 8-11. The burden therefore shifts to TI to justify its objections to the requests. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

In its opposition to Plaintiff’s motion, TI states that the requests are “clearly vague, ambiguous, and overbroad on [their] face, [and that] the responses of the right of contractual privacy, attorney work product, and the common interest/joint defense doctrine appeared to be sufficient.” (Opp., p. 7.) TI then goes on to argue that the common interest doctrine is applicable.

Because Plaintiff has established good cause for the discovery, TI was required to justify its objections to the requests. (Kirkland, supra, 95 Cal.App.4th at p. 98.) Conclusory statements that the requests are vague, ambiguous, and overbroad, and that the documents are protected from disclosure by a purported contractual right to privacy without further elaboration on the bases for such assertions, are not sufficient to carry this burden. Accordingly, TI’s objections on the grounds of vagueness, overbreadth and contractual privacy are overruled.

Similarly, concerning RPD No. 8, TI has failed to explain why the agreement or agreements between it and AVIS constitute work product. The objection is therefore overruled and Plaintiff’s motion to compel a further response to the request, including the production of the agreement or agreements responsive to the request, is GRANTED.

As to RPD Nos. 9-11, TI does attempt to justify its objection on the basis of the common interest doctrine and argues that its privilege log is sufficient. For the reasons set forth below, the common interest doctrine, standing alone, is not a proper basis to withhold documents and the Court further finds that TI’s privilege log does not comply with Code of Civil Procedure section 2031.240, subdivision (c)(1).

Concerning TI’s assertion of a “common interest privilege,” Evidence Code section 911 provides in relevant part that “[e]xcept as otherwise provided by statute[,] . . . [n]o person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.” Because the California Legislature has not codified the “common interest privilege,” strictly speaking, the privilege does not exist in California. While the California courts have been careful to point out that the privilege does not exist in this state, the courts have also applied the principles underlying the privilege in what has come to be known as the common interest doctrine. (Oxy Resources California LLC v. Sup. Ct. (2004) 115 Cal.App.4th 874, 898 (“Oxy Resources”) [“we will refer to the joint defense or common interest doctrine, rather than the joint defense or common interest privilege, to avoid suggesting that communications between parties with common interests are protected from disclosure by virtue of a privilege separate from the attorney-client privilege, the work product doctrine, or any other statutorily recognized evidentiary privilege.”], emphasis in original.)

The common interest doctrine is part of the privilege/waiver analysis. Evidence Code section 912 provides that the right of any person to claim a privilege, including the lawyer-client privilege under Evidence Code section 954, is waived with respect to a communication protected by the privilege if any holder of the privilege discloses the communication to a third party. (Evid. Code, § 912, subd. (a).) However, disclosures made in confidence to third persons do not waive the attorney-client privilege if “reasonably necessary for accomplishment of the purposes for which the lawyer was consulted.” (Evid. Code, § 912, subd. (d).) Similarly, Evidence Code section 952 provides that “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” is confidential.

Given the statutory rules governing confidentiality of lawyer-client communications and waiver, “[a] communication to a lawyer, even when made in the presence of another person (e.g., a business associate or joint client, who is present to further the interest of the client in the consultation), and on a matter of joint concern, may retain a privileged character, within the existing scope of the privilege statutes.” (Seahaus La Jolla Owners Assn. v. Sup. Ct. (2014) 224 Cal.App.4th 754, 770.) In order to retain its privileged character, the disclosure must be made under three circumstances: (1) the disclosure relates to a common interest of the attorneys’ respective clients; (2) the disclosing attorney has a reasonable expectation that the third party will preserve confidentiality; and (3) the disclosure is reasonably necessary for the accomplishment of the purpose for which the disclosing attorney was consulted. (Meza v. H. Muehlstein & Co. (2009) 176 Cal.App.4th 969, 981.) These principles form the basis of what is known in California as the common interest doctrine.

As indicated by the above discussion, the common interest doctrine is part of the waiver analysis, which only comes into play after the party asserting the privilege has made a showing that a privileged communication exists in the first instance. (See Alpha Beta Co. v. Sup. Ct. (1984) 157 Cal.App.3d 818, 824-825 [noting that, in response to a motion to compel, the burden is on the party claiming the privilege to establish whatever preliminary facts are essential to the claim].) In the context of the attorney-client privilege, the party claiming the privilege is required to prove (usually by declarations) the existence of the attorney-client relationship when the communication was made. (Id.)

Here, TI has not made a showing that any of the withheld documents are communications protected by the attorney-client privilege. For instance, with regard to RPD No. 9, which requests all writings submitted to TI by AVIS with respect to the subject SUV, TI’s privilege log simply states: “Emails with Vinay Amancha re vehicle and accident, October 2011.” (Pl.’s Separate Statement as to RPD, p. 13.) While the entry indicates that AVIS supplied TI with emails from Amancha concerning the accident, it does not indicate to whom the emails were initially directed, i.e., whether they were sent to legal counsel. If they were not, and there is no indication that they were, they are not protected by the attorney-client privilege.

As indicated above, the common interest doctrine is part of the attorney-client waiver analysis. Because TI has failed to demonstrate the existence of any privileged communication, there is no need for the Court to move on to the next steps in the analysis, i.e., whether TI, AVIS or Amancha waived the privilege by sharing information amongst themselves and whether TI, AVIS, and Amancha share common interests that would negate any waiver of the attorney-client privilege.

Based upon the above discussion, TI has failed to justify its objections to RPD Nos. 9-11 on the basis of the common interest doctrine. Plaintiff’s motion to compel further responses to the requests is therefore GRANTED.

However, the Court also finds that RPD Nos. 9-11 are broad enough that they may encompass attorney-client communications. Accordingly, in producing documents in conformity with its further responses to RPD Nos. 9-11, if TI withholds any documents on the basis of the attorney-client privilege, it shall provide Plaintiff with an amended privilege log. The privilege log “shall provide sufficient factual information for other parties to evaluate the merits of that claim.” (CCP, § 2031.240, subd. (c)(1).) This would include, at a minimum, the nature of the communication or document being withheld, the privilege asserted (work product doctrine or attorney-client privilege), who authored the communication or who created the document at issue, and to whom the communication or document was sent (including persons cc’d on emails). (See Hernandez v. Super. Ct. (2003) 112 Cal.App.4th 285, 291-292; see also Wellpoint Health Networks, Inc. v. Super. Ct. (1997) 59 Cal.App.4th 110, 130 [“The information in the privilege log must be sufficiently specific to allow a determination of whether each withheld document is or is not [in] fact privileged.”].)

E. Requests for Monetary Sanctions

Both parties seek the imposition of monetary sanctions in connection with Plaintiff’s motion to compel further responses to the RPD. Both parties cite Code of Civil Procedure section 2031.310, subdivision (h) as the basis for their requests. That provision provides that “the 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.”

1. Plaintiff’s Request

Plaintiff requests monetary sanctions against TI and/or defense counsel in the amount of $1,260. Given that the Court is granting Plaintiff’s motion as to 7 of the 8 requests at issue, the Court finds that Plaintiff substantially prevailed on her motion to compel, TI did not act with substantial justification, and no other circumstances render the imposition of a sanction unjust. Therefore, a monetary sanction shall be imposed to compensate for the reasonable expenses, including attorney’s fees, incurred as a result of Defendant’s conduct. (CCP, § 2023.030, subd. (a).)

Counsel for Plaintiff declares that, at an hourly rate of $150, the attorney hired to address the discovery issues in this case spent 6 hours preparing the motion to compel further responses to the RPD. Counsel further declares that he anticipates spending an additional 2 hours to review the opposition, prepare a reply brief, and appear at the hearing on the matter. Counsel also seeks $60 in filing fees.

Because section 2023.030 only authorizes sanctions for expenses “incurred” as a result of the sanctionable conduct, the Court does not award sanctions for anticipated expenses. The hourly rates and hours spent are otherwise reasonable (6 hours x $150/hr + 60 filing fee).

Accordingly, Plaintiff’s request for monetary sanctions against TI and his counsel is GRANTED IN PART in the amount of $960.

2. Defendant’s Request

TI requests monetary sanctions against Plaintiff in the amount of $875. Defendant did not successfully oppose Plaintiff’s motion and is therefore not entitled to sanctions. Defendant’s request for monetary sanctions is therefore DENIED.

II. Motion to Compel Further Responses to FI

Plaintiff seeks further responses to FI Nos. 12.3, 15.1, and 17.1. Plaintiff asserts that Defendant’s objections to the FI lack merit and that the substantive responses are inadequate.

A. Legal Standard

After receiving responses to interrogatories, the propounding party may move for an order compelling further responses if the propounding party deems that any of the following apply: (1) the answer to a particular interrogatory is evasive or incomplete; (2) the exercise of the option to produce documents is unwarranted or the required specification of those documents is inadequate; or (3) the objection to an interrogatory is without merit or too general. (CCP, § 2030.300, subd. (a)(1) – (3).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection. (See Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255, citing Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220-221.)

B. FI No. 12.3

FI No. 12.3 directs the responding party to answer the following question and accompanying subparts:

Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from any individual concerning the INCIDENT? If so, for each statement state:

(a) the name, ADDRESS, and telephone number of the individual from whom the statement was obtained;
(b)
(c) the name, ADDRESS, and telephone number of the individual who obtained the statement;
(d)
(e) the date the statement was obtained; and
(f)
(g) the name, ADDRESS, and telephone number of each PERSON who has the original statement or a copy.
(h)
Defendant responded to the above interrogatory as follows: “Objection. This interrogatory seeks information protected by the work product doctrine and/or attorney-client privilege. See Coito v. Superior Court (2012) 54 Cal.4th 480.” (Pl.’s Separate Statement in Support of Mot. to Compel Further Responses to FI (“Separate Statement as to FI”), p. 2.)

In its supplemental response to FI No. 12.3, Defendant reiterated its objection based upon the holding in Coito and provided the following substantive response: “Without waiving the objections, responding party provides the following information: (a) Email statement from Vinay Kumar Amancha[;] (b) Paula Beatty at Avis[;] (c) 10/7/2011[;] (d) Our attorney[;] (a) It is also noted that there is a transcript of the interview with Vinay Kumar Amancha on or about April 22, 2013.” (Separate Statement as to FI, p. 2.)

Plaintiff claims that Defendant’s objection lacks merit and that the supplemental substantive response is inadequate. For the reasons set forth below, the Court agrees with both of these assertions.

Concerning the objection portion of the response, Defendant’s reliance upon Coito is misplaced. In Coito, the California Supreme Court addressed the holding in Nacht & Lewis Architects v. Superior Court (1996) 47 Cal.App.4th 214 (“Nacht”), which had previously held that a party cannot be compelled to respond to Form Interrogatory 12.2 because the information it seeks (list of witnesses from whom counsel interviewed) is attorney work product. (Nacht, supra, at p. 217.) The Court in Coito significantly limited the holding in Nacht.

As to the identity of witnesses from whom a party’s counsel has obtained statements, the Court held that “such information is not automatically entitled as a matter of law to absolute or qualified work product protection.” (Coito, supra, 54 Cal.4th at p. 486.) The Court further held that “[i]n order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts (qualified privilege).” (Id.) In reaching its decision as to the second issue, the Court stated the following:

Because it is not evident that form interrogatory No. 12.3 implicates the policies underlying the work product privilege in all or even most cases, we hold that information responsive to form interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the interrogatory usually must be answered. However, 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. Upon such a showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute or qualified work product protection applies to the material in dispute. (Coito, supra, 54 Cal.4th at p. 504, emphasis added.)

As indicated by the italicized language from the above quotation, a party asserting work product protection to FI No. 12.3 must 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.” (Id.) Defendant has not attempted to make a foundational showing that the information is protected. Instead, Defendant simply states in conclusory fashion that its objection based upon Coito is justified.

Because Defendant has failed to make the foundational showing required by the California Supreme Court in Coito, its objections based upon work product protection and the attorney-client privilege are overruled.

Defendant also asserts that its substantive response is adequate. The Court disagrees.

The question calls for the name, address, and telephone number of each person that gave, took, or has a copy of any statement obtained by Defendant concerning the accident. Defendant identifies two statements: (1) an email from Amancha, and (2) a transcript of an interview with Amancha. Defendant only supplied the information requested in the subparts of the interrogatory to the first statement.

Because Defendant has failed to justify its objection to the interrogatory, and because Defendant did not provide a complete response to the interrogatory, Plaintiff’s motion to compel a further response to FI No. 12.3 is GRANTED.

C. FI No. 15.1

FI No. 15.1 directs Defendant to identify each denial of a material allegation in Plaintiff’s complaint and to state the facts upon which Defendant based each of its denials or affirmative defenses. The interrogatory also requests that Defendant identify the names, addresses, and telephone numbers of all persons with knowledge of the facts supporting Defendant’s denials and affirmative defenses, and all documents supporting the denials and affirmative defenses.

Defendant initially responded to FI No. 15.1 as follows:

Objection to this interrogatory as a whole. It is vague, ambiguous, overbroad, and compound. The affirmative defenses set forth in the response to the Complaint at this early stage were done in anticipation that the evidence would be obtained through discovery. Discovery is ongoing and responding party reserves the right to supplement their response as the information becomes available. (Separate Statement as to FI, p. 3.)

Defendant’s supplemental and further supplemental responses to FI No. 15.1 reasserted the objections raised in the initial response and added that, under Code of Civil Procedure section 431.30, general denials to unverified complaints are sufficient and that “[i]t is Plaintiff’s burden to prove the necessary allegations in each cause of action and not the burden of defendant to disprove the allegations.” (Id., p. 4.)

Defendant’s third supplemental response indicated that Defendant “is unaware of any facts to support [its] affirmative defenses,” that it “is not currently aware of any individuals with knowledge of any facts to support the affirmative defenses,” and that it “is not currently aware of any documents that would be responsive at this time.” (Id., p. 5.)

Plaintiff asserts that the substantive answer contained in Defendant’s third supplemental response is inadequate. The Court agrees.

Code of Civil Procedure section 2030.220 provides that:

(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.
(b)
(c) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.
(d)
(e) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.
(f)
Pursuant to section 2030.220, if Defendant is not in possession of facts supporting its case it was required to state as much in a verified response. It did so with regard to its affirmative defenses. Defendant did not, however, identify each denial of a material allegation contained in Plaintiff’s complaint or state the facts upon which the denials are based. The response does not provide all of the information sought by the interrogatory and is therefore incomplete.

Because Defendant’s response to FI No. 15.1 is incomplete, Plaintiff’s motion to compel a further response to the interrogatory is GRANTED.

D. FI No. 17.1

FI No. 17.1 asks the following:

Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission:

(a) state the number of the request;
(b)
(c) state all facts upon which you base your response;
(d)
(e) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and
(f)
(g) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.
(h)
(Separate Statement as to FI, pp. 6-7.)

Plaintiff takes issue with Defendant’s response to FI No. 17.1 as it pertains to requests for admission (“RFA”) Nos. 1, 3, 6, 7, and 8.

RFA No. 1 asked Defendant to admit that Amancha was an employee of TI on the date of the accident and RFA No. 3 asked Defendant to admit that Amancha was an agent of TI on the date of the accident.

Defendant denied RFA Nos. 1 and 3. As to FI No. 17.1 concerning these requests, in response to the part of the interrogatory calling for the facts supporting the denials, Defendant simply stated that Amancha was not an employee or agent. Defendant also indicated that no documents exist that would prove the fact that Amancha was not an employee or agent.

Plaintiff claims that these responses are not code-compliant and essentially asserts that she does not believe Defendant’s representations that no facts exist demonstrating that Amancha was not an employee or agent of TI. Plaintiff’s argument is not well taken. If Defendant has no facts supporting the denials of RFA Nos. 1 and 3, it was entitled to state as much in response to FI No. 17.1. The response is therefore code-compliant with regard to RFA Nos. 1 and 3.

Two additional comments are worth making concerning the response. First, as the court of appeal suggested in Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 580-581, “factually devoid” interrogatory answers may come back to haunt the responding party if the opposing party moves for summary judgment because the verified answers indicating that no facts exist supporting a claim can be used to satisfy the moving party’s burden on summary judgment to show there is no evidence of a triable issue of fact. Second, if Defendant attempts to introduce documentary evidence at trial in support of the proposition that Amancha was not an agent or employee of TI, it would be entirely appropriate for the trial judge to impose a discovery sanction precluding TI from introducing such evidence. (See Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1544-1545 [discovery sanctions at trial upheld where the sanctioned party falsely claimed that the requested documents were nonexistent or missing or that all relevant documents had already been produced]; see also Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447.)

Because Defendant’s response to FI No. 17.1 as it pertains to RFA Nos. 1 and 3 is code-compliant, Plaintiff’s motion to compel a further response to the interrogatory concerning RFA Nos. 1 and 3 is DENIED.

RFA Nos. 6, 7, and 8 asked Defendant to admit that Amancha was negligent, that his negligence caused the accident, and that TI is responsible for Amancha’s negligence. Defendant objected to RFA Nos. 6, 7, and 8 as follows: “Objection: This request seeks a legal opinion that would be provided by experts and is premature. Without that information, responding party cannot admit or deny.” (Separate Statement as to FI, pp. 13, 15, 17.)

In its initial response to FI No. 17.1 as it pertains to RFA Nos. 6, 7, and 8, in response to the part of the interrogatory calling for the facts supporting the denials, Defendant wrote that “[t]his calls for a legal opinion.” (Id.) In its third supplemental response to FI No. 17.1, Defendant stated that “[a]ny information relating to the incident and the legal cause therefore obtained by their attorneys as a result of their research and reasoning is protected and privileged.” (Id., p. 14.) In the portion of the response dealing with the facts supporting Defendant’s responses to RFA Nos. 6, 7, and 8, Defendant stated that “[r]esponding party is not required to issue legal opinions as to the issue of negligence. Responding party is not an attorney, was not present at the incident, and has little information regarding the incident at the present time.” (Id.) Defendant also indicated that “no documents are available.” (Id.)

Plaintiff asserts that the portion of Defendant’s response to FI No. 17.1 dealing with the facts that support its responses to RFA Nos. 6, 7, and 8, is not code-compliant. The Court agrees.

As Plaintiff points out, a party may seek “opinion relating to fact, or application of law to fact” through requests for admission. (CCP, § 2033.010.) Similarly, the Code expressly states that “[a]n interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.” (CCP, § 2030.010, subd. (b).)

Given the language of section 2030.010, subdivision (b), Defendant’s response to FI No. 17.1 as it pertains to RFA Nos. 6, 7, and 8 that it “is not required to issue legal opinions as to the issue of negligence” is not a proper response.

Based upon the above discussion, Plaintiff’s motion to compel a further response to FI No. 17.1 as it pertains to RFA Nos. 6, 7, and 8 is GRANTED.

E. Requests for Monetary Sanctions

Both parties seek the imposition of monetary sanctions in connection with Plaintiff’s motion to compel further responses to the FI. Both parties cite Code of Civil Procedure section 2030.300, subdivision (d) as the basis for their requests. That provision provides that “[t]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.”

1. Plaintiff’s Request

Plaintiff requests monetary sanctions against TI and/or defense counsel in the amount of $960. Given that the Court is granting Plaintiff’s motion as to all three FI, with the exception of the subparts of FI No. 17.1 related to RFA Nos. 1 and 3, the Court finds that Plaintiff substantially prevailed on her motion to compel, TI did not act with substantial justification, and no other circumstances render the imposition of a sanction unjust. Therefore, a monetary sanction shall be imposed to compensate for the reasonable expenses, including attorney’s fees, incurred as a result of Defendant’s conduct. (CCP, § 2023.030, subd. (a).)

Counsel for Plaintiff declares that, at an hourly rate of $150, the attorney hired to address the discovery issues in this case spent 4 hours preparing the motion to compel further responses to the FI. Counsel further declares that he anticipates spending an additional 2 hours to review the opposition, prepare a reply brief, and appear at the hearing on the matter. Counsel also seeks $60 in filing fees.

Because section 2023.030 only authorizes sanctions for expenses “incurred” as a result of the sanctionable conduct, the Court does not award sanctions for anticipated expenses. The hourly rates and hours spent are otherwise reasonable (4 hours x $150/hr + 60 filing fee).

Accordingly, Plaintiff’s request for monetary sanctions against TI and his counsel is GRANTED IN PART in the amount of $660.

2. Defendant’s Request

TI requests monetary sanctions against Plaintiff in the amount of $875. Defendant did not successfully oppose Plaintiff’s motion and is therefore not entitled to sanctions. Defendant’s request for monetary sanctions is therefore DENIED.

Conclusion and Order

Plaintiff’s motion to compel Defendant to provide further responses to the RPD is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to RPD Nos. 1 and 6-11. The motion is DENIED as to RPD No. 3. Accordingly, Defendant shall serve verified, code-compliant further responses, without objection, to RPD Nos. 1 and 6-11, and documents in conformity with those responses, within 20 calendar days of the filing of this Order.

Plaintiff’s request for monetary sanctions in connection with her motion to compel further responses to the RPD is GRANTED IN PART in the amount of $960. TI and its counsel shall pay $960 to counsel for Plaintiff within 20 calendar days of the filing of this Order.

Defendant’s request for monetary sanctions in connection with Plaintiff’s motion to compel further responses to the RPD is DENIED.

Plaintiff’s motion to compel further responses to the FI is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to FI Nos. 12.3, 15.1, and 17.1 as it pertains to RFA Nos. 6-8. The motion is DENIED as to FI No. 17.1 as it pertains to RFA Nos. 1 and 3. Accordingly, Defendant shall serve verified, code-compliant further responses, without objection, to FI Nos. 12.3, 15.1, and 17.1 as it pertains to RFA Nos. 6-8 within 20 calendar days of the filing of this Order.

Plaintiff’s request for monetary sanctions in connection with its motion to compel further responses to the FI is GRANTED IN PART in the amount of $660. TI and its counsel shall pay $660 to counsel for Plaintiff within 20 calendar days of the filing of this Order.

Defendant’s request for monetary sanctions in connection with Plaintiff’s motion to compel further responses to the FI is DENIED.