2017-00211638-CU-IC

James Caplis vs. Mercury Casualty Company

Nature of Proceeding: Motion to Compel 1. Form 2. Production (Clasen, Raffalow & Rhoads)

Filed By: Nicholson, Suzanne M.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the specific discovery requests that will be addressed at the hearing. Counsel are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

Plaintiff’s motion to compel defendant Clasen, Raffalow & Rhoads’ (“CRR”) further responses to form interrogatories and requests for production of documents along with the production of responsive documents is DENIED, as follows.

The notice of motion does not comply with Code of Civil Procedure §1010 or CRC Rule 3.1110(a).

Plaintiff’s separate statement is incomplete in that it fails to include any of the definitions found in the subject discovery and fails to include any of the responses which were effectively incorporated into those responses at issue in this motion.

Counsel is reminded that the purpose of the separate statement is to enable the court to resolve the discovery dispute without having to consult any other document. (See, CRC Rule 3.1345(c) [requirements for separate statement].)

Factual Background

This is an action against an insurer, Mercury Casualty Company (“MCC”), and its attorneys for bad faith, breach of fiduciary duty and concealment in connection with a lawsuit previously filed against plaintiff, for which Cumis counsel was eventually retained.

Plaintiff now moves to compel CRR’s further responses to a handful of form interrogatories and requests for production of documents on the ground CRR’s responses were incomplete and/or insufficient. CRR opposes.

Analysis

At the outset, the court must remind all counsel but especially plaintiff’s that given the number of motions such as this which must be addressed on a daily basis, there are simply not enough judicial resources available to resolve each and every discovery dispute that could have and should have been resolved informally. This serves to highlight the critical need for all counsel’s legitimate, reasonable and good faith meet-and-confer efforts before filing any discovery motion. Although it dealt with a motion to compel answers to deposition questions, the decision of Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 is instructive in that it clarifies that the meet-and-confer process is not intended to be some perfunctory formality but rather it “requires…a serious effort at negotiation and informal resolution.” (Id., at 1438.) Nevertheless, despite the number of other matters on this crowded calendar, this court will address yet another largely unremarkable discovery dispute which could have and should have been resolved by counsel via the meet-and-confer process without the use of finite judicial resources.

Form Interrogatory 12.1 (Witnesses). The court will sustain CRR’s objection to this interrogatory on the ground that plaintiff’s own definition of the term “incident” is overly broad and ambiguous, making it impossible for CRR to provide a meaningful answer. Plaintiff remains free to propound carefully-crafted interrogatories which enable CRR to reasonably understand the information sought and then to respond accordingly.

Form Interrogatory 12.2 (Interviews). Notwithstanding the preceding paragraph and the confusion created by plaintiff’s definition of “incident,” the court finds that CRR has adequately responded to this interrogatory by stating “there are no interviews concerning the ‘incident’ as defined” and clarifying that while plaintiff himself may have been “interviewed,” it was not concerning the “incident” but rather his deposition in the underlying accident. At worst, CRR is guilty of providing too much information but this alone does not justify compelling a further response to this interrogatory under the circumstances here.

Request for Production 4. The request seeks all documents evidencing communications between CRR and MCC relating to coverage of the claims asserted in the underlying lawsuit against plaintiff. CRR responded as follows:

No such documents exist, except the following which will not be produced as

they are each protected by the attorney/client and work product privileges, and the litigation privilege of Cal. Civil Code Sec. 47(b):

“Memorandum” from D. Fabrick ([CRR] lawyer) to J. Moore ([MCC][)], 6/19/12; “Memorandum” from D. Fabrick ([CRR] lawyer) to [MCC’s] J. Moore, 9/24/12; “Memorandum” from D. Fabrick ([CRR] lawyer) to [MCC’s] J. Moore 7/30/12; [D]ocument dated 1/7/15 from D. Fabrick ([CRR] lawyer) to R. Miric ([MCC]) entitled “No. CCP0031505; Claim No. 1GZ0182 (previously 1GZ0099); Date[] of loss: April 17, 2012; Date Reported: April 23, 2012; Subject: Injury to Independent Contractor;”

[D]ocument entitled “Legal Office Advise Request” from R. Miric ([MCC]) to [CRR] lawyer D. Fabrick, dated 1/6/15.

Plaintiff now contends that the assertion of the attorney-client privilege and the work product doctrine with respect to communications with MCC about plaintiff, coverage and/or the underlying lawsuit is improper when CRR was actually representing both plaintiff and MCC from April through September 2014, something confirmed by Evidence Code §962 [no attorney-client privilege as between joint clients]. Plaintiff further asserts that CRR’s post-representation communications with MCC were prohibited by Rules of Professional Conduct 3-310(E) and any privilege which may have covered pre-representation communications were effectively waived when these communications were voluntarily forwarded to the attorney who subsequently handled plaintiff’s defense in the underlying action.

The opposition maintains that all but one of the documents identified in response to this request pre-date the commencement of the underlying suit against plaintiff and relate solely to coverage issues, thereby entitling these documents to the ongoing protection of the attorney-client privilege and the work product doctrine. Defendants add that the remaining document is prepared well after plaintiff’s defense was transferred to a new firm, making the assertion of these same protections appropriate as well and rendering plaintiff’s reliance on Evidence Code §962 moot particularly in light of Aetna Surety Co. v. Superior Court [communications between insurer and attorney prior to former agreeing to defend insured is protected by attorney-client privilege]. With respect to the privilege document which eventually came into the hands of one of plaintiff’s attorneys, defendants have submitted declarations which attest that this disclosure was inadvertent and undermine the suggestion there was a knowing, voluntary waiver of the privilege, raising additional questions about why plaintiff’s counsel refuses to return this document to its rightful owner despite established ethical obligation to do so.

The court concludes the documents identified by CRR are protected by the privileges asserted and plaintiff had failed to make a sufficient showing that such protections have been knowingly and voluntarily waived. The authority cited by the opposition effectively disposes of the bulk of plaintiff’s contentions about the documents defendants have refused to produce. In Aetna Surety Co. v. Superior Court (1984) 153 Cal.App.3d 467, an insurer retained a law firm to evaluate coverage for its insureds’ claims and then filed an action for declaratory relief against the insureds based on certain policy exclusions, prompting the insureds to cross-complain for bad faith. During discovery, the insureds issued subpoenas for documents from the law firm hired by the insurer, which then filed a motion to quash the subpoenas based on attorney-client privilege and work product. The trial court denied the motion and insurer sought a writ of mandate, which the Court of Appeal granted. In doing so, it

determined that the “joint client exception” to the attorney-client privilege did not apply where the insurer hired a law firm to investigate coverage because this was a consultation prior to the time the insurer accepted responsibility for the insureds’ claims and that the attorney-client privilege also applied to communications containing legal advice to the insurer. The Court of Appeal also concluded documents generated by the law firm were entitled to the protection of the qualified work product doctrine but added that an in camera was needed to determine which documents were and were not subject to discovery.

Based on this longstanding precedent, this court holds that all communications between MCC and CRR prior to MCC’s agreement to defend plaintiff in the underlying lawsuit absolutely privileged and protected from discovery in this action. This includes the 6/19/2012 coverage memorandum which was inadvertently included in the files transferred the attorney who subsequently participated in plaintiff’s defense of the prior lawsuit since an inadvertent disclosure cannot under these circumstances be considered an knowing and voluntary waiver of the absolute protections of the attorney-client privilege. As in Aetna Surety Co., this court finds that plaintiff’s reference to Evidence Code §962’s joint-client exception to the attorney-client privilege is unavailing inasmuch as CRR had at that time (i.e., prior to MCC’s accepting coverage on the claims against plaintiff) only a single client: MCC.

Plaintiff has failed also to provide an authority which persuades this court that CRR’s

post-representation communications with MCC are neither privileged nor somehow

prohibited by Rules of Professional Conduct 3-310(E), which merely prohibits an
attorney (i.e., CRR) from accepting employment adverse to its former client (i.e.,
plaintiff) from whom the attorney obtained confidential information material to the new
employment. Among other things, plaintiff has failed to demonstrate not only that CRR
obtained from plaintiff any confidential information which is somehow material to
CRR’s post-representation communications with MCC but also that these post
-representation communications with MCC are somehow “adverse” to plaintiff. But

even if they were and these post-representation communications with MCC somehow
violated Rule 3-310(E), plaintiff’s remedy is not found in an order compelling
production of such documents which in this case are otherwise privileged.

In the end, plaintiff has failed to show that any of the documents at issue here are either not privileged or that the applicable privilege(s) has been knowingly and voluntarily waived.

Conclusion

For the reasons explained above, plaintiff’s motion to compel CRR’s further responses to interrogatories and requests for production must be and hereby is denied in its entirety.

In light of the foregoing, the court finds it is appropriate at this time to direct plaintiff and/or his counsel to immediately return to defendants via their counsel all copies of the 6/19/2012 coverage memorandum which is presently in the possession, custody or control.

Neither side requested monetary sanctions.