Case Number: BC538037 Hearing Date: February 13, 2015 Dept: A
Romsa v IKEA North America

PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES
DEFENDANT’S MOTION TO COMPEL FURTHER RESPONSES
DEFENDANT’S MOTION TO RECLASSIFY

Calendar: 2
Case No: BC538037
Date: 2/17/15

RELIEF REQUESTED:
1. Plaintiff’s Motion
Order compelling Defendant to serve further responses to Plaintiff’s requests for production, set one, and order imposing monetary sanctions of $5,625.

2. Defendant’s Motions
Order compelling Plaintiff to serve further responses to Defendant’s requests for production, set two.
Order reclassifying case as a limited jurisdiction matter

DISCUSSION:
This case arises from the Plaintiff’s claim that he suffered personal injuries when he was burned by mashed potatoes at the Defendant’s cafeteria.

This hearing concerns the following motions:

1) the Plaintiff’s motion for an order compelling the Defendant to serve further responses to his requests for production, set one;
2) the Defendant’s motion for an order compelling the Plaintiff to serve further responses to its requests for production, items 8, 24, and 25; and
3) the Defendant’s motion for an order reclassifying the matter.

1. Plaintiff’s Motion to Compel Further Responses
Under CCP section 2031.310, the Court may order a further response to a request for production when any of the following apply:

1) A statement of compliance with the demand is incomplete.
2) A representation of inability to comply is inadequate, incomplete, or evasive.
3) An objection in the response is without merit or too general.

The Plaintiff seeks an order compelling further responses to requests for production 3, 7, 8, 9, 10, 19, and 21. These requests seek documents regarding policies and procedures regarding safety, food temperatures, preparation of food, serving food, employee training, and preparation of mashed potatoes. In addition, the Plaintiff sought the incident report involving the Plaintiff.
CCP section 2031.310(b)(1) requires the motion to set forth specific facts showing good cause justifying the production for inspection of any document or tangible thing described in the requests for production. The Plaintiff’s attorney, Nareg Kitsinian, provides facts in a declaration to demonstrate that the Plaintiff suffered second-degree burns after coming into contact with mashed potatoes at the Defendant’s restaurant, that the Plaintiff was subject to the policies and procedures regarding the preparation of food at the Defendant’s restaurant, and that the mashed potatoes were served too hot for consumption.

In response to the requests for production, the Defendant served the following objections: work-product, overly broad, unduly burdensome, irrelevant, not reasonably calculated to lead to the discovery of admissible evidence, vague, ambiguous, calls for speculation, unintelligible, and trade secrets.
Under California law, the objecting party has the burden of justifying its objections when the propounding party requests that the Court order further responses. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. This imposes the burden on the Defendant to proceed through every objection in each of its responses and demonstrate that each objection has merit. The Defendant did not meet this burden.
Instead, the Defendant served supplemental responses on December 18, 2014 to items 3, 7, 8, 9, 10, and 19 (see copy of supplemental responses in untabbed exhibit 1 to opposition papers). A review of the reveal that they repeat the same objections. Since the Defendant did not justify any of these objections, the Court will direct the Defendant to serve further responses that lack any objections.
In addition, the Defendant’s supplemental response to requests for production 7, 8, 9, 10, and 19 stated that it would produce the records if the Plaintiff signed a fully executed confidentiality agreement. The requests for production involve procedures for preparing food (item 7), procedures for serving food (item 8), training manuals (item 9), restaurant safety (item 10), and instructions regarding injury claims (item 19). The Defendant argues that a confidentiality agreement is needed because these matters are trade secrets. As noted above, the Defendant has the burden of justifying the objection based on trade secrets.
Under Evidence Code section 1060, the owner of a trade secret has a privilege to refuse to disclose the secret unless protecting the secret will conceal fraud or work injustice. Civil Code section 3426.1 defines a trade secret to mean information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The Defendant offers facts in the declaration of Lou Patrick, who is a Senior Claims Administrator with Ikea North America Services, LLC. Mr. Patrick states that that Ikea expends much effort, time, and money in preparing the recipes and cooking instructions for its foods, for employee training, and store safety. There are no facts that identify how Mr. Patrick knows any of these facts regarding Ikea efforts to keep secret its food preparation, employee training, or store safety, i.e., sufficient facts to demonstrate that Mr. Patrick has personal knowledge of these facts. Accordingly, Mr. Patrick offers no admissible facts to justify the objection based on a trade secret.
Further, there are no facts indicating how the Defendant derives any independent economic value from keeping secret its procedures for preparing and serving food, its training manuals, its restaurant safety documents, or its instructions regarding injury claims. There are no facts indicating that Ikea operates its cafeteria-style restaurant in some unique manner that obtains value from not being generally known to the public or other persons who could obtain economic value from its disclosure. Accordingly, the Defendant has not justified the objection based on trade secret.
Finally, the Defendant did not serve a supplemental response to request for production 21. Item 21 seeks all documents evidencing the reporting of the incident involving the Plaintiff. The Defendant objected based on work product and overly broad and unduly burdensome.
The Defendant argues that the incident report was drafted in preparation of litigation. Under California law, communications made by an insured to the insurance company, concerning an event which may be made the basis of a claim against the insured that is covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending the insured. Scripps Health v. Superior Court (2003) 109 Cal. App. 4th 529, 535-536. It does not matter whether the report contains factual information or legal information. Id.
The Defendant offers facts in the declaration Lou Patrick, who is a Senior Claims Administrator with Ikea North America Services, LLC. Mr. Patrick states in paragraph 4 that an Ikea employee prepared the incident report specifically to send to Ikea’s insurance carrier and its attorneys in anticipation of litigation. Further, Mr. Patrick states that the incident reports are drafted on a proprietary form for transmittal to its insurance company and attorney. Mr. Patrick states that an Ikea employee sent the incident report at issue to Ikea’s insurance carrier immediately after it was completed.
Mr. Patrick signed his declaration in Pennsylvania and his signature is notarized by a Pennsylvania notary, Joanne Galette. Mr. Patrick offers no facts to explain how he knows any facts regarding the Ikea in Burbank, e.g., that an Ikea employee prepared the report specifically to send to Ikea’s insurance carrier or that the employee sent the incident report to Ikea’s insurance carrier immediately after the report was completed. Again, Mr. Patrick fails to offer sufficient facts to demonstrate that Mr. Patrick has personal knowledge of the statements in his declaration.
Accordingly, the Defendant has not met its burden of justifying its objection.

Therefore, the Court will order the Defendant to serve further responses without objections to requests for production 3, 7, 8, 9, 10, 19, and 21.

Finally, the Plaintiff requested an award of monetary sanctions. Under CCP section 2031.310, the Court may impose monetary sanctions on the Defendant for its failure to comply with discovery and for making unjustified objections to discovery.
The Plaintiff’s attorney, Nareg Kitsinian, provides facts in paragraphs 26 to 28 of his declaration to demonstrate that Plaintiff’s counsel expects to bill 15 hours at $375 per hour. The Court will adjust this amount by reducing the number of hours to twelve, which is a reasonable amount of hours to bill for a motion to compel further responses because of the additional time needed to meet and confer and to draft a separate statement. Further, the Court will reduce the hourly rate to $250.00 per hour because this is a reasonable rate to bill for standard discovery matters.
Accordingly, the amount of sanctions is $3,000 (12 hours at $250 per hour).

2. Defendant’s Motion to Compel Further Responses
Under CCP section 2031.310, the Court may order a further response to a request for production when any of the following apply:

1) A statement of compliance with the demand is incomplete.
2) A representation of inability to comply is inadequate, incomplete, or evasive.
3) An objection in the response is without merit or too general.

The Defendant seeks an order compelling further responses to requests for production 8, 24, and 25. These items seek witness statements (item 8), recordings of conversations with any individual relating to this lawsuit (item 24), and all documents identified in the Plaintiff’s response to form interrogatory 12.3 (item 25).
CCP section 2031.310(b)(1) requires the motion to set forth specific facts showing good cause justifying the production for inspection of any document or tangible thing described in the requests for production. In law and motion practice, factual evidence is supplied to the court by way of declarations. Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224 (rejecting facts supporting the production of documents that were in a separate statement because the document was not verified and did not constitute evidence). In Calcor, the Court of Appeal issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production.
The same issue exists here. The declaration of the Defendant’s attorney, Rodrigo Bozoghlian, lacks any specific facts showing good cause for the inspection of any of the documents. For example, request for production 25 seeks documents identified in Plaintiff’s response to form interrogatory 12.3. Mr. Bozoghlian does not identify these documents or offer any basis to find that there is good cause for their production. In fact, it is not possible to make any determination because the Defendant’s separate statement does not include a copy of the Plaintiff’s response to form interrogatory 12.3 to identify documents at issue.
Accordingly, the Defendant has not complied with the requirement to provide specific facts showing good cause for the production of the documents sought.

Further, the Plaintiff’s objections to these requests for production that the documents regarding witness interviews are subject to the attorney-client are meritorious.
The work product privilege is a statutory protection defined in CCP section 2018.020, which states:

It is the policy of the state to do both of the following:
a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.
b) Prevent attorneys from taking undue advantage of their adversary’s industry and efforts.

To advance this policy, CCP section 2018.030 provides:

a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.
b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the Court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.

Accordingly, section 2018.030(a) provides absolute protection for certain work product, while subdivision (b) provides qualified protection for all other work product.
The case that first recognized the work product privilege concerned witness statements obtained by an attorney. See Hickman v. Taylor (1947) 329 U.S. 495 (finding that an attorney’s interview from the surviving crewmembers of a tugboat accident was protected by the work product privilege. The Supreme Court found that in performing his or her various duties:

“it is essential that a lawyer work with a certain degree of privacy,
free from unnecessary intrusion by opposing parties and their counsel.
Proper preparation of a client’s case demands that he assemble
information, sift what he considers to be the relevant from the irrelevant
facts, prepare his legal theories and plan his strategy without undue and
needless interference. That is the historical and the necessary way in
which lawyers act within the framework of our system of jurisprudence
to promote justice and to protect their clients’ interests. This work is
reflected, of course, in interviews, statements, memoranda, correspondence,
briefs, mental impressions, personal beliefs, and countless other tangible
and intangible ways—aptly though roughly termed by the Circuit Court of
Appeals in this case as the ‘work product of the lawyer.’ Were such
materials open to opposing counsel on mere demand, much of what is now
put down in writing would remain unwritten. An attorney’s thoughts,
heretofore inviolate, would not be his own. Inefficiency, unfairness
and sharp practices would inevitably develop in the giving of legal
advice and in the preparation of cases for trial. The effect on the legal
profession would be demoralizing. And the interests of the clients and the
cause of justice would be poorly served.
Id. at 510 to 512.

California law applies the work product privilege to witness statement obtained through an attorney in the following manner. First, a witness statement obtained through an attorney-directed interview is entitled as a matter of law to at least qualified work product protection. Coito v. Superior Court (2012) 54 Cal. 4th 480, 499-500. If the responding party alleges that a witness statement, or portion thereof, is absolutely protected because it “reflects an attorney’s impressions, conclusions, opinions, or legal research or theories, that party must make a preliminary or foundational showing in support of its claim. Id. Finally, a party seeking disclosure has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice. Id.

The Plaintiff’s attorney, Nareg Kitsinian, states in paragraph 3 that directed his attorney service to conduct a recorded interview with Karen Foley, who was present when the Plaintiff suffered his injuries. This is sufficient to demonstrate that the witness statement is entitled to at least qualified work product protection. Accordingly, the Defendant has the burden of establishing that denial of disclosure will unfairly prejudice it in preparing its claim or defense or will result in an injustice.
The Defendant’s attorney, Rodrigo Bozoghlian, offers no facts to meet this burden. Mr. Bozoghlian offers no facts to demonstrate that it will unfairly prejudice the Defendant if the Plaintiff is allowed to maintain the work product privilege for Karen Foley’s witness statement. On the contrary, Mr. Bozoghlian states in paragraph 8 that he deposed her on October 17, 2014, which indicates that he had the opportunity to question her about the incident. Since the Defendant was able to depose Karen Foley about the incident, it was able to obtain the information through an alternative method.
Mr. Bozoghlian speculates that the statement may contain different observations or that the statement might impeach her testimony. This is speculation and does not meet the burden of establishing that denial of disclosure will unfairly prejudice the Defendant.
Further, this argument could be made in response to every attempt to invoke the work product privilege for a witness statement, i.e., a party seeking disclosure can always claim that the witness statement might include statements that would impeach the witness. If this argument was adequate unto itself, then there would be no effective work product privilege for witness statements.
Accordingly, the Defendant has not met its burden of establishing that there are grounds to compel the Plaintiff to serve further responses to requests for production 8, 24, and 25.

Therefore, the Court will deny the Defendant’s motion to compel further responses.

The Plaintiff requests an award of monetary sanctions. Under CCP section 2031.310, there are grounds to impose monetary sanctions on the Defendant because it made an unsuccessful motion to compel further responses. The Defendant argues that it was substantially justified in filing this motion because it was seeking a witness statement. This argument lacks merit because the Defendant did not meet its burden of demonstrating grounds exist to force the disclosure of a witness statement obtained by the Plaintiff’s counsel that is protected by the work product privilege.
The Plaintiff’s attorney, Nareg Kitsinian, provides facts in paragraphs 15 to 17of his declaration to demonstrate that Plaintiff’s counsel expects to bill 8 hours at $375 per hour. The Court will adjust this amount by reducing the number of hours to five, which is a reasonable amount of hours to bill for the opposition papers. Further, the Court will reduce the hourly rate to $250 per hour because this is a reasonable rate to bill for standard discovery matters.
Accordingly, the amount of sanctions is $1,250 (5 hours at $250 per hour).

3. Defendant’s Motion to Reclassify
Under CCP section 403.040, a defendant may file a motion for reclassification. In ruling on a motion to reclassify, the Court is not permitted to determine the merits of the Plaintiff’s claim. Walker v. Superior Court (1991) 53 Cal.3d 257, 269-270. Instead, the Court’s sole inquiry is whether the verdict will necessarily fall below the $25,000 amount. Id.
This case involves claims that the Plaintiff, a minor, suffered personal injuries when his hand came into contact with mashed potatoes that were negligently prepared and served at unreasonable high temperatures. The Plaintiff seeks damages for medical expenses and for pain and suffering.
The Defendant states that the Plaintiff’s medical bills total $2,087.87. However, the Defendant offers no facts regarding damages for pain and suffering.
In the opposition, the Plaintiff first notes that the Defendant claimed that the value of this case exceeded $75,000 when it sought to remove the case to Federal Court on the basis of diversity.
In addition, the Plaintiff offers evidence of bills for services from hospitals, the Grossman Burn Center, a clinical psychologist, Dr. Roberta Falke, and REM Sleep Labs that indicate that the Plaintiff’s total bills will total $17,737.87. Also, the Plaintiff offers a copy of the assessment report by Dr. Roberta Falke in which she notes a significant change in the Plaintiff’s general disposition after the incident and diagnoses of Adjustment Disorder with Anxiety and a Sleep Disturbance based on night terrors. These facts indicate that the jury may find that the Plaintiff’s damages for the pain and suffering caused by the incident are a substantial amount.
Accordingly, when the evidence that the Plaintiff’s medical specials may reach $17,737.87 is considered with the evidence that the Plaintiff’s damages for pain and suffering may be a substantial amount, it is not possible to make a determination that the Plaintiff’s verdict will necessarily fall below the $25,000 amount.
Therefore, the Court will deny the Defendant’s motion to reclassify this matter as a limited jurisdiction case.

RULING:
1. Plaintiff’s Motion
Grant motion and order Defendant to serve further responses to Plaintiff’s requests for production, set one; Impose monetary sanctions on Defendant in the sum of $3,000.00.

2. Defendant’s Motions
Deny motion to compel Plaintiff to serve further responses; Impose monetary sanctions on Defendant in the sum of $1,250.00. Deny motion to reclassify.