Case Name: Farideh Zanjani v. Burke Williams, Inc.
Case No.: 2015-1-CV-284135

Motion by Plaintiff Farideh Zanjani to Compel Defendant Burke Williams, Inc. to Provide a Further Response to Request for Production of Documents

Factual and Procedural Background

This is a slip and fall action. On January 21, 2015, plaintiff Farideh Zanjani (“Plaintiff”) was at a spa owned and operated by defendant Burke Williams, Inc. (“Defendant”) with her daughter, Sepideh Nasiri (“Nasiri”), to receive pedicure and facial services. (Complaint, ¶¶ 12-13.) Following her pedicure, the pedicurist gave Plaintiff a pair of slippers to wear. (Id., at ¶ 13.) As Plaintiff was walking with her daughter down a set of stairs located near the pool and lounge, “she suddenly slipped, twisted her knee and violently slammed her head on the railing due to wetness on the last step of the staircase, and because the slippers [she] was provided had no gripping whatsoever.” (Ibid.) Plaintiff alleges that Defendant negligently failed to maintain the premises in a safe condition and warn her about the lack of grip on the slippers and the wetness on the staircase. (Id., at ¶¶ 14, 21, 25.)

Based on the foregoing, Plaintiff filed the complaint against Defendant, alleging causes of action for: (1) negligence; and (2) premises liability.

On March 21, 2016, Plaintiff filed the instant motion to compel Defendant to provide a further response to request for production of documents, set one (“RPD”), No. 5 and for an award of monetary sanctions. Defendant filed papers in opposition to the motion on April 18, 2016, in which it requests an award of monetary sanctions. Plaintiff filed a reply on April 26, 2016.

Discovery Dispute

On December 10, 2015, Plaintiff served Defendant with several sets of discovery, including the RPD. (Sager Dec., ¶ 7; Salek Dec., ¶ 4, Ex. A.) Plaintiff requested an extension of time to respond to the discovery requests and Defendant granted Plaintiff an extension of time to January 29, 2016. (Id., at ¶ 8.)

On January 29, 2016, Defendant served Plaintiff with its discovery responses via U.S. mail. (Sager Dec., ¶ 9; Salek Dec., ¶ 5, Ex. B.)

Between March 9 and 16, 2016, Plaintiff’s counsel, by and through his paralegal Cindy Carranza (“Carranza”), exchanged correspondence with Defendant’s counsel regarding Plaintiff’s deposition, a date on which the parties could proceed with mediation, and a facility inspection of the spa. (Sager Dec., ¶¶ at 10-12, Exs. A-C.)

On March 17, 2016, at approximately 5:00 p.m., Carranza emailed Defendant’s counsel, indicating she was “in the process of reviewing Defendant’s responses to discovery.” (Sager Dec., ¶ 13, Ex. D.) Carranza requested color and electronic copies of photographs produced by Defendant as Exhibit A in response to the RPD. (Ibid.) She also asked for a three-week “extension [of time] to file a motion to compel, if necessary” as “[t]he current deadline to file a motion to compel responses to Form Interrogatories, Special Interrogatories, Request for Production of Documents, and Request for Admissions is March 21st.” (Ibid.)

The following day, Plaintiff’s counsel attempted to call Defendant’s counsel to discuss the issues raised in Carranza’s March 17, 2016 email, but was unable to reach her. (Salek Dec., ¶ 8.) That afternoon, Defendant’s counsel emailed Carranza and attached color photographs pursuant to Carranza’s request. (Sager Dec., ¶ 14, Ex. E.) Defendant’s counsel stated that, with respect to the request for an extension for time to file a motion to compel further responses, she was “less inclined to grant this extension” because Defendant’s responses were served on January 29, 2016; Plaintiff propounded 104 special interrogatories; even though Defendant’s responses were served over 40 days earlier, the March 17, 2016 email was the first time she had “heard that there may be issues with the responses that require meeting and conferring”; and the only basis for the request for an extension of time appeared to be due to the lack of diligence on Defendant’s part. (Ibid.)

Three days later, on the morning of March 21, 2016, Plaintiff’s counsel attempted to call Defendant’s counsel, but she was in a meeting. (Sager Dec., ¶ 21; Salek Dec., ¶ 10.) Shortly thereafter, Carranza sent an email to Defendant’s counsel, stating that the email was “intended to fulfill Plaintiff’s requirement to meet and confer regarding Defendant’s document production pursuant to [the RPD],” specifically RPD No. 5. (Sager Dec., ¶ 17, Ex. M.) Carranza pointed out that RPD No. 5 seeks investigative and/or incident reports prepared on the date of the accident and Defendant refused to produce an incident report prepared on that date based on the attorney-client privilege and work product doctrine. (Ibid.) She further stated that “Plaintiff contends that Defendant’s claim of privilege is without merit, and will move forward with a motion to compel, unless Defendant agrees to produce the incident report by 12:00 p.m. noon today.” (Ibid.) Thirty minutes later, while Defendant’s counsel was still in a meeting, Plaintiff’s counsel sent an email to Defendant’s counsel demanding that she provide Plaintiff with an extension of time to file a motion to compel further responses or provide the incident report by no later than 12:00 p.m. that day. (Sager Dec., ¶ 18, Ex. N.)

A little less than one hour later, Defendant’s counsel sent Plaintiff’s counsel a reply email, asserting that Defendant failed to meet and confer in good faith with respect to RPD No. 5 and advising that Defendant would not grant Plaintiff an extension of time to file a motion to compel further responses. (Sager Dec., ¶ 20, Ex. P.) Counsel continued to exchange emails that day, which reiterated their respective positions, but they were unable to resolve the discovery dispute.
Consequently, later that day, Plaintiff filed the instant motion to compel Defendant to provide a further response to RPD No. 5.

Discussion

I. Request for Judicial Notice

Plaintiff’s request for judicial notice of Defendant’s answer is DENIED because it is not relevant to a material issue in the pending matter. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [“There is, however, a precondition to the taking of judicial notice in either its mandatory or permissive form-any matter to be judicially noticed must be relevant to a material issue.”].)

II. Evidentiary Objections

Plaintiff asserts evidentiary objections to the declarations of Christyna Campbell (“Campbell”) and Samantha Mekler (“Mekler”), which were submitted by Defendant in support of its opposition. Plaintiff contends that the declarations are inadmissible because they are not signed by the declarants. However, it is readily apparent that her objections lack merit. Contrary to Plaintiff’s assertion, the declarations filed with the Court are, in fact, subscribed by Campbell and Mekler. Therefore, Plaintiff’s evidentiary objections are overruled.

III. Procedural Issue

Plaintiff argues that Defendant did not serve its opposition in compliance with Code of Civil Procedure section 1005 because it was not served in a manner reasonably calculated to ensure delivery by the close of the following business day. That statute provides that all opposing papers must be served and filed at least nine court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).) Furthermore, all papers opposing a motion must be served by “personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers … are filed.” (Code Civ. Proc., § 1005, subd. (c).)

This motion is set for hearing on May 3, 2016. Consequently, the opposition needed to be served by April 20, 2016, nine court days before the hearing. Additionally, the papers needed to be served in a manner reasonably calculated to ensure delivery by April 21, 2016. Defendant served Plaintiff with its opposition papers via regular mail on April 15, 2016, six calendar days before April 21, 2016. Thus, the Court cannot conclude that the papers were not served in a manner reasonably calculated to ensure delivery to Plaintiff by the close of April 21, 2016.

Moreover, Plaintiff submitted a detailed reply, fully addressing the merits of Defendant’s opposition. A responding party waives any defect in service by contesting a matter on its merits. (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697; Altafulla v. Ervin (2015) 238 Cal.App.4th 571, 577.) Accordingly, the Court will consider the opposition notwithstanding any purported defects in service.
IV. Meet and Confer

Defendant contends that the motion is improper because Plaintiff failed to adequately meet and confer regarding its response to RPD No. 5 prior to filing her motion.

A motion to compel further responses to requests for production of documents shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) The rule requiring parties to meet confer is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order” which, in turn, “will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435.) The level of effort at informal resolution that satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case. (Obregon v. Super. Ct. (“Obregon”) (1998) 67 Cal.App.4th 424, 431.)

Upon review of counsels’ declarations and the parties’ meet and confer correspondence, the Court finds that Plaintiff failed to adequately meet and confer with respect to RPD No. 5. Plaintiff first attempted to meet and confer as to RPD No. 5 on March 21, 2016, the last day on which any motion to compel further responses to the RPD could be filed. At no time before March 21, 2016, did Plaintiff indicate that Defendant’s response to RPD No. 5 was deficient. Rather, Plaintiff waited until the eleventh-hour to send a meet and confer email to Defendant regarding the subject discovery request. It was wholly unreasonable for Plaintiff to expect the parties to meaningfully meet and confer regarding the propriety of Defendant’s decision to withhold the accident report from production in the few short hours before her deadline to file a motion to compel further responses.

Nonetheless, upon review of the parties’ papers, it appears to the Court that further meet and confer efforts would not have altered the parties’ positions with respect to the propriety of Defendant’s response to RPD No. 5 or resulted in an informal resolution of issues presented in the instant motion. Thus, the Court exercises its discretion to reach the merits of the motion.

V. Legal Standard

If a party demanding a response to a request for production of documents deems that an objection in the response is without merit or too general, that party may move for an order compelling a further response. (See Code Civ. Proc., § 2031.310, subd. (a).) On a motion to compel further responses to requests for production, it is the moving party’s burden to demonstrate good cause for the discovery sought. (Kirkland v. Super. Ct. (“Kirkland”) (2002) 95 Cal.App.4th 92, 98.) “Good cause” requires a showing or 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. Super. Ct. (1997) 53 Cal.4th 1113, 1117.) Once good cause has been shown, the burden shifts to the responding party to justify any objections or failure to provide a code-compliant response. (Kirkland, supra, 95 Cal.App.4th at p. 98.)
VI. RPD No. 5

RPD No. 5 asks Defendant to produce “any and all investigative and/or incident reports regarding [the slip and fall incident].” (Opp’n., Sep. Stmt., p. 1.)

In response, Defendant objected to the request to the extent it seeks information protected by the attorney-client privilege and/or work product doctrine. (Opp’n., Sep. Stmt., pp. 1-2.) Defendant stated that its manager, Mekler, completed a privileged and confidential report concerning the incident on January 21, 2015, and the report was prepared pursuant to company policy and in anticipation of litigation. (Id., at p. 2.) Defendant further stated that the report was privileged and would not be produced.

It is self-evident that there is good cause for the discovery sought. The report from the date of the incident likely contains facts and information regarding the circumstances surrounding Plaintiff’s slip and fall, her injuries, and any actions taken by Defendant in connection with the incident. Such facts and information are undoubtedly relevant to the subject matter of the case and necessary for Plaintiff to evaluate her case and prepare for trial. Since there is good cause for the discovery sought, the burden shifts to Defendant to justify its objections.

Defendant attempts to justify its objections based on the attorney-client privilege and work product doctrine. For the reasons set forth below, Defendant’s objection based on the attorney-client privilege has merit and, therefore, the Court need not reach the merits of Defendant’s objection based on the work product doctrine.

A prerequisite to a claim of attorney-client privilege is the existence of a confidential communication between an attorney and a client. When the client is a corporation, the attorney-client privilege extends to employee communications with counsel only if one of the following circumstances apply: (1) information has been transmitted between corporate counsel and an employee who is also a defendant in the same case, (2) information has been transmitted between corporate counsel and someone with authority to speak on behalf of a corporation, or (3) an employee prepared a statement for transmittal to counsel pursuant to a pre-existing duty under corporate rules or policies, provided that the statement’s primary purpose was to assist counsel in anticipation of litigation. (D.I. Chadbourne, Inc. v. Super. Ct. (1964) 60 Cal.2d 723, 736-738.) Under the third scenario, the critical focus is on the dominant purpose of the statement, i.e., if the statement was primarily prepared for and in anticipation of litigation, it is privileged and not discoverable. (See, e.g., Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709 [statement by defendant’s employee concerning accident held to be privileged because it had been prepared as part of a procedure followed in anticipation of litigation].) Forwarding documents to a third party insurer prior to transmitting them to counsel does not eliminate the privilege’s protection, as long as the dominant purpose remains the eventual transmission of the report to an attorney. (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 535.)

To establish that the subject incident report is privileged, Defendant relies on the declarations of Campbell, its General Manager, and Mekler, its manager at the spa. (See Campbell Dec., ¶ 1; see also Mekler Dec., ¶ 1.) Campbell declares that: she has held the position of General Manager at the spa since 2012; on the date of the incident, she was alerted by Mekler that Plaintiff slipped at the base of the Jacuzzi stairs; upon her arrival to assist, Plaintiff had been moved to the lounge area; she did not witness Plaintiff’s fall; she responded to the incident to determine if Plaintiff “required medical assistance, to prepare, or assist in the preparation of, the pre-printed confidential incident report and to transmit or assist in the transmittal of the confidential report to [Defendant’s] Corporate Office pursuant to [its] corporate policy”; upon her arrival she was approached by Nasiri who was angry that Plaintiff was injured; Nasiri advised her and Mekler that she was going to call her attorney as a result of Plaintiff’s fall; the comment caused her to believe the incident was going to result in a lawsuit; prior to the incident, she personally advised members of Defendant’s management team, including Mekler, that it is Defendant’s policy that “a pre-printed confidential and privileged incident report must be prepared by a manager or a qualified supervisor on the date an injury occurs and/or the date and injury is reported”; “[o]nce the report is completed, [she] … advised members of [Defendant’s] management team, including [Mekler], [that] the report must immediately be sent to [Defendant’s] corporate office and corporate attorney and to secure a copy of the confidential incident report at the facility for transmittal to [Defendant’s] insurance carrier and/or attorneys upon notice of a claim or lawsuit from … the injured party”; and she also advised members of Defendant’s management team, including Mekler, that it is Defendant’s policy that the incident report is confidential and “is not to be disseminated to anyone other than [Defendant’s] management, agents, attorneys and/or insurance carriers as the report’s primary purpose is for use by [Defendant’s] insurance carriers and attorneys in a subsequent legal proceeding concerning the incident if the injured party files a claim or lawsuit against [Defendant].” (Campbell Dec., ¶ 1-5.)

Next, Mekler declares that: she has held the position of manager at the spa since 2012; on the date of the incident, she was alerted by an employee of Defendant that Plaintiff slipped at the base of the Jacuzzi stairs; she in turn notified Campbell; she did not witness Plaintiff’s fall; her “purpose for responding to the incident was to determine if [Plaintiff] required medical assistance, to prepare the pre-printed confidential incident report and to transmit the confidential report to [Defendant’s] Corporate Office pursuant to [its] corporate policy”; while she and Campbell were assisting Plaintiff, Nasiri advised them that she was going to call her attorney as a result of Plaintiff’s fall; the comment caused her to believe the incident was going to result in a lawsuit; prior to the incident, she was advised “it is [Defendant’s] policy if a person is injured on the premises, a pre-printed confidential and privileged incident report must be prepared and completed by a member of management or a qualified supervisor on the date an injury occurs and/or the date an injury is reported”; “[o]nce the report is completed, [she] was advised the report must immediately be sent to [Defendant’s] corporate office and corporate attorney and to secure a copy of the confidential incident report at the facility for transmittal to [Defendant’s] insurance carrier and/or attorneys upon notice of a claim or lawsuit from … the injured party”; she was also advised that it is Defendant’s policy that the incident report is confidential and “is not to be disseminated to anyone other than [Defendant’s] management, agents, attorneys and/or insurance carriers as the report’s primary purpose is for use by [Defendant’s] insurance carriers and attorneys in a subsequent legal proceeding concerning the incident if the injured party files a claim or lawsuit against [Defendant]”; and she personally authored and completed the report concerning Plaintiff’s fall. (Mekler Dec., ¶¶ 1-6.)

These declarations set forth facts sufficient to show that the subject incident report was a statement for transmittal to counsel pursuant to a pre-existing duty and the document’s primary purpose was to assist counsel in anticipation of litigation. The fact that the report was also transmitted to Defendant’s insurance carrier and corporate office does not alter this analysis as the dominant purpose remains the eventual transmission of the report to an attorney. Therefore, the incident report falls within the scope of the attorney-client privilege and the objection to RPD No. 5 on this ground is sustained.

Plaintiff argues that Defendant waived the attorney-client privilege because it offered the incident report to her to review, sign, and return to Defendant. In support of her argument, Plaintiff offers a declaration by Nasiri in which she declares that Mekler offered to allow Plaintiff to review and sign the incident report. However, Plaintiff does not cite any legal authority whatsoever supporting her position that such an offer results in a waiver of the attorney-client privilege. Moreover, there is no evidence that the incident report was ever shown or otherwise disclosed to Plaintiff thereby resulting in a waiver of the attorney-client privilege. In fact, Mekler declares that: “at no time was either [Plaintiff] or her daughter provided with the confidential report”; “at no time did [she] provide [Plaintiff] or her daughter with the report for their review, comment and approval”; she knew it was against Defendant’s corporate policy to provide a copy of the confidential report to Plaintiff and her daughter; and she “would not and did not violate this policy by providing them or promising to provide them with a copy of the report.” (Mekler Dec., ¶ 6.) This evidence is sufficient to show that no waiver of the attorney-client privilege occurred.

In light of the foregoing, the motion to compel a further response to RPD No. 5 is DENIED.

VII. Requests for Monetary Sanctions

Plaintiff’s request for an award of monetary sanctions against Defendant and its counsel in the amount of $4,785 is DENIED. Plaintiff fails to identify any statutory authority whatsoever in support of her request. Moreover, even if Plaintiff cited the correct statutory authority for an award of monetary sanctions, Code of Civil Procedure section 2031.310, she would not have been entitled to an award of monetary sanctions thereunder given her failure to adequately meet and confer.

Defendant’s request for monetary sanctions against Plaintiff and her counsel in the amount of $3,580 pursuant to Code of Civil Procedure section 2031.310 is GRANTED IN PART in the amount of $2,405. Code of Civil Procedure section 2031.310, subdivision (h) provides that the 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 a request for production of documents, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust. Here, Defendant is entitled to a monetary sanction as Plaintiff was unsuccessful on her motion; she did not act with substantial justification; and there are no circumstances that make imposing the sanction unjust. Defendant requests an award of sanctions in the amount of $3,580, which is based on time spent preparing and researching the opposition, possible review of the reply, and preparation for and attendance at oral argument. The Court does not award anticipated expenses such as reviewing the reply and attending oral argument. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551 [the court awards sanctions only for expenses actually incurred, not for anticipated expenses].) Defense counsel declares that she spent 13 hours preparing the opposition at her hourly rate of $185. Consequently, Defendant is entitled to monetary sanctions in the amount of $2,405. Accordingly, Plaintiff and her counsel shall pay Defendant’s counsel $2,405 within 20 days of the date of the filing of the Order.