KRISTIN BENNETT and ADAM BENNETT v. CHAD KEEL, et al.

On April 27, 2026, Plaintiffs filed the instant Motion for Protective Order, which is supported by the declarations of J. Lloyd Buckley.

Request for Judicial Notice.

Defendant Martzolf requests the Court take judicial notice of the Complaint and First Amended Complaint in this action. The request is denied as unnecessary. While these documents are all entitled to judicial notice pursuant to Evid. Code, § 452, subd. (d), the request is unnecessary since the Court has the authority to look through its own file. (See Davis v. Southern California Edison Company (2011) 236 Cal.App.4th 619, 632, fn. 11 [judicial notice of document included in appellate record is unnecessary]; Roth v. Plikaytis (2017) 15 Cal.App.5th 283 [court was required to consider previously filed materials incorporated by reference into attorney fee motion].) Additionally, the court may take judicial notice of that the pleading was filed, but not of the truth of matters stated therein.

Evidentiary Objections to the Reply.

Defendant submits two objections to the Reply Declaration of Attorney Buckley. The court overrules both objections. The declaration is strictly responsive and therefore not new evidence on reply, it does not lack foundation, nor is it speculative. Paragraph four, lines 12-15 could potentially be hearsay with respect to conferring with other attorneys, but an exception (state of mind) and nonhearsay purposes (explains subsequent conduct of delay and lack of notice) could also apply, and the portion of the statement based on review of the file is not hearsay. Also, as to relevance, the fact that Buckley had to confer with other attorneys (regardless of responses) raises the inference he was unaware of the existence of the document prior to the deposition.

Statement of Law.

Code of Civil Procedure section 2031.285 provides that if electronically stored information is produced in discovery and is claimed to be privileged or protected by the attorney-work product, then the party making such claim may notify any party that received the information of the claim and basis of the claim. (Code Civ. Proc., §2031.285, subd. (a).) After such notification, the party receiving the information shall immediately sequester the information and either return the specified information and any copies that may exist or present the information to the court conditionally under seal for a determination of the claim. (Code Civ.

Proc., § 2031.285, subd. (b).) If the receiving party disputes that the electronically stored information is privileged or protected, he/she can seek a determination of the claim from the court by filing a motion. (Code Civ. Proc., § 2031.285, subd. (d)(1).) While the motion is pending and the claim unresolved, the receiving party is precluded from using or disclosing the information, and is required to preserve the information and keep it confidential. (Code Civ. Proc., § 2031.285, subds. (c)(1), (d)(2).)

“[T]he issuance and formulation of protective orders are to a large extent discretionary.” (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.) An issued protective order may include several different directives, including propounded discovery requests or that particular set need not be answered, the number of specially prepared interrogatories are unwarranted despite declaration otherwise, time to respond to be extended, items produced/answered under specified terms and conditions, etc. (Code of Civ. Proc., §§ 2030.090, subd. (b), 2031.060, subd. (b).) The protective order may include that “a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.” (Code of Civ. Proc., § 2031.060, subd. (b)(5).)

“[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Further, the “party seeking the protective order must show by a preponderance of the evidence that the issuance of a protective order is proper.” (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) Any motion for a protective order must also be accompanied by a meet and confer declaration. (Code of Civ. Proc., §§ 2017.020, subd. (a), 2030.090, subd. (a), 2031.060, subd. (a)). The Parties met and conferred. (See Buckley Decl. ¶¶ 14-20; Exhs. C-H.)

Analysis.

Plaintiffs move the Court for a protective order precluding any further use, disclosure, or dissemination of a privileged document titled “Fall Statement” authored by Plaintiff Kristin Bennett and inadvertently produced during discovery.

Specifically, Plaintiffs request the following orders:

1. The “Fall Statement” is privileged and protected from disclosure and use; 2. All recipients must immediately return or confirm destruction of all copies and derivatives, including excerpts, summaries, notes, and analyses; 3. All parties and their counsel must sequester and refrain from reviewing or using the document pending further order; 4. The document may not be referenced in depositions, motions, expert reports, or at trial; 5. Any prior dissemination be remedied by written confirmation of sequester/destruction from each recipient within five (5) court days; and 6. Any work product or testimony tainted by exposure to the document be excluded unless the proponent establishes independence from the document.

Plaintiffs argue this document is protected by the attorney-client privilege. The document at issue is the “Fall Statement” and was prepared for prior counsel before the complaint was filed. In support of the motion, counsel for Plaintiffs, J. Lloyd Buckley, submits a declaration. He explains that Plaintiffs retained attorneys from Freedman Law originally, including Jesse Fretwell. Mr. Fretwell advised Plaintiff Kristin Bennett to write down everything she remembers about the incident into an email and to send the email to him. (Buckley Decl. ¶ 5).

On or about July 31, 2022, Plaintiff sent Mr. Fretwell an email entitled “July 3, 2022 Fall at Bigfoot Bowls in Wrightwood, CA.” (hereinafter, “Fall Statement”). (Buckley Decl. ¶ 6; Exh. A.) Thereafter, during October 2023, Plaintiffs retained McCune Law Group and McCune Law Group requested and received Plaintiffs’ file from Freedman Law. (Buckley Decl. ¶ 7). On or about December 6, 2024, Plaintiff Kristin Bennett served verified responses to Defendant’s requests. Included within that production was the Fall Statement document.

Plaintiff authored the Fall Statement approximately 28-days following the subject trip and fall incident for the purpose of communicating with her prior attorney. (Buckley Decl. ¶ 10). The Fall Statement constitutes confidential attorney-client communication and/or was prepared in anticipation of litigation. Its production was inadvertent and neither Plaintiff nor her attorneys realized it was produced to opposing counsel at the time. (Buckley Decl. ¶ 11).

Plaintiff and her counsel were not informed or aware of the inadvertent production until the document was presented to Plaintiff at her deposition on October 10, 2025 by Defendant’s counsel, Marsha Kempson —more than 10 months after the inadvertent disclosure. The document was also disseminated to other parties, including cross-defendants Chad Keel and Angelica Montoya. Plaintiffs’ counsel was unaware of the document’s existence at the time of deposition and proceeded to permit Ms. Kempson to ask some questions regarding the Fall Statement but the record reflects that Plaintiffs’ counsel quickly instructed Plaintiff not to answer any further questions regarding the Fall Statement once the significance of the document was realized. (Buckley Decl. ¶ 12; Exh. B.).

Plaintiffs argue that a confidential communication between a client and her attorney made for the purpose of legal advice is protected by the attorney-client privilege.

Evidence Code section 952 provides: “As used in this article, “confidential communication between client and lawyer” means 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, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” (Evid.

Code, § 952.) According to Plaintiffs, the content, form, and timing of the “Fall Statement”, they claim, demonstrate that it was prepared for counsel to evaluate potential claims and damages following the incident and thus constitutes protected work product and privileged communications.

Defendant opposes the motion and contends the motion makes dubious claims. The Opposition is supported by the declaration of counsel, Marsha L. Kempson. Defendant first argues that the statements made in the Fall Statement correspond to those made in the original Complaint where Plaintiff tripped on a rug, and therefore, Defendant claims, Plaintiffs lack any reason to withhold the document. Defendant then claims that Plaintiff changed her story, filed the First Amended Complaint alleging a trip on a raised entryway, and dismissed the tenant defendants. Defendant claims Plaintiff Kristin Bennett then later admitted to tripping over the threshold, which contradicts her statements in the Fall Statement. Because of this, Defendant claims Plaintiffs are now trying to make the document disappear by invoking the attorneyclient privilege. (See e.g., Kempson Decl. ¶¶ 2-5.)

Defendant argues the “mere claim” that the document was inadvertently discovered is insufficient to “resurrect” the attorney-client privilege. Though not stated explicitly, Defendant’s argument is that Plaintiff waived the privileged. Defendant cites to McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083 (McDermott Will). ““Once the proponent makes a prima facie showing of a confidential attorney-client communication, it is presumed the communication is privileged and the burden shifts to the opponent to establish waiver, an exception, or that the privilege does not for some other reason apply.”” (Id. at p. 1101.) “The attorney-client privilege may be waived, but only by the holder of the privilege.

A waiver results when the holder, without coercion, (1) has disclosed a significant part of the communication, or (2) has consented to the disclosure made by anyone else.” (Ibid., citation omitted.)

““Despite the statute’s declaration that any uncoerced ‘disclosure’ creates a waiver, courts have consistently held that inadvertent disclosures do not.” As the Supreme Court explains, “the disclosure contemplated in Evidence Code section 912 involves some measure of choice and deliberation on the part of the privilege holder.” Similarly, in State Fund, the Court of Appeal concluded a waiver of the attorneyclient privilege occurs only when there is an “intention to voluntarily relinquish a known right.”” (Ibid., citations omitted.)

Defendant, however, highlights the following: “The privilege holder’s characterization of his or her intent in disclosing a privileged communication is an important consideration in determining whether the holder waived the privilege, but is not necessarily dispositive. When determining whether an inadvertent disclosure waived the attorney-client privilege, a trial court must examine both the subjective intent of the privilege holder and any manifestation of the holder’s intent to disclose the information. Other relevant considerations include the precautions the holder took to maintain the privilege and the promptness with which the holder sought return of the inadvertently disclosed document.” (Id. at pp. 1101-1102.)

Defendant maintains that though the McDermott Will case presents some factors for the Court to consider, Defendant states federal cases have adopted an “Evaluation of the Circumstances Approach”. In this respect, Defendant then relies heavily on the Lois factors presented in Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co. (1985) 104 F.R.D. 103 (Lois), a Southern District of New York case, which provides: “The elements which go into that determination include the reasonableness of the precautions to prevent inadvertent disclosure, the time taken to rectify the error, the scope of the discovery and the extent of the disclosure.

There is, of course, an overreaching issue of fairness and the protection of an appropriate privilege which, of course, must be judged against the care or negligence with which the privilege is guarded with care and diligence or negligence and indifference.” (Id. at p. 105.)

As to these factors, Defendant argues Plaintiffs did not take reasonable precautions. “[I]t is clear that when privileged documents have been disclosed either in response to the request of a government agency or inadvertently in the course of civil discovery, no waiver of the privilege will occur if the holder of the privilege has taken reasonable steps under the circumstances to prevent disclosure.” (Regents of University of California v. Superior Court (2008) 165 Cal.App.4th 672, 683.)

As to the time to rectify the error, Defendant argues the document was discovered 10 months prior to the deposition, and Plaintiffs took no action. (See Kempson Decl. ¶ 6.) Defendant argues it was provided as a stand-alone document that was not attached to another document. Defendant then claims the extent of the disclosure was total because the whole document was produced.

Ultimately, Defendant’s main argument is that it would be unfair not to allow her to use this document. It is clear Defendant views this document as a kind of ‘smoking gun.’

Finally, Defendant claims, without legal support, that the Court must find special circumstances to warrant granting the motion.

With respect to Defendant’s fairness argument, the Reply addresses it directly and notes that Defendant finding the document useful for impeachment purposes is irrelevant. She cites no case law to support finding a waiver of the privilege because the document helps her case. The statement of factors in Lois uses the term “fairness” but Defendant here takes it out of context and gives it a new meaning. The fairness is not a question of whether it is more fair to let Defendant use it to build her case versus whether it is more fair to find a privilege applies. The phrase in Lois is: “fairness and the protection of an appropriate privilege.” (See Lois, supra, at p. 105.)

In support of the Reply, Attorney Buckley submits a responsive declaration. He establishes that the Fall Statement was produced as part of Plaintiffs’ December 6, 2024 document production; however, the attorney who prepared and served that production is no longer employed by Plaintiffs’ counsel’s office. (Buckley Reply Decl. ¶ 5.) After investigating the circumstances surrounding the production, Plaintiffs’ counsel confirmed that no attorney at McCune Law Group was aware that the Fall Statement had been included in the December 6, 2024 production prior to Plaintiff’s deposition on October 10, 2025. (¶ 4.)

The Fall Statement was first brought to Plaintiffs’ counsel’s attention when Defendant’s counsel questioned Plaintiff regarding the document during her deposition. (¶ 6.) Upon learning that the document had been produced, Plaintiffs’ counsel promptly asserted the attorney-client privilege on the record. (¶ 7.) This is clear from the record.

Thus, Plaintiffs acted promptly upon discovering an inadvertent disclosure had been made. Ultimately, as argued in the Reply, Plaintiffs have demonstrated that the document consists of a confidential attorneyclient communication, which Defendant does not dispute. Defendant, however, did not meet her burden in demonstrating a waiver of that privilege by the holder of the privilege. Here, the document, based on the evidence presented, was inadvertently produced in discovery and upon realizing the error, counsel promptly took action. The fact that the document may have been valuable to the defense for impeachment purposes is not a consideration by the court when determining whether a confidential communication between plaintiff and her former counsel has been waived by the plaintiff.

TENTATIVE RUILING

The plaintiff’s motion for protective order is granted. The court adopts and approves the proposed terms, i.e.:

1. The “Fall Statement” is privileged and protected from disclosure and use; 2. All recipients must immediately return or confirm destruction of all copies and derivatives, including excerpts, summaries, notes, and analyses; 3. All parties and their counsel must sequester and refrain from reviewing or using the document pending further order; 4. The document may not be referenced in depositions, motions, expert reports, or at trial; 5. Any prior dissemination be remedied by written confirmation of sequester/destruction from each recipient within five (5) court days; and 6. Any work product or testimony tainted by exposure to the document be excluded unless the proponent establishes independence from the document.