Brinker v. Axos Bank

• Court: District Court, S.D. California
• Decided: January 6, 2025
• Docket: 3:22-cv-00386
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 JENNIFER BREAR BRINKER, Case No.: 22-cv-0386-MMA-DDL

10 Plaintiff, ORDER OVERRULING 11 v. PLAINTIFF’S RULE 72 OBJECTION

12 AXOS BANK, et al., [Doc. No. 126]

13 Defendants. 14 JOHN TOLLA, et al., 15 Counter-Claimants, 16 v. 17 JENNIFER BREAR BRINKER, 18 Counter-Defendant. 19 20 21 On September 23, 2024, Magistrate Judge David D. Leshner issued a Discovery 22 Order denying Plaintiff Jennifer Brear Brinker’s motion to compel production of 23 documents. See Doc. No. 118. Plaintiff now objects to the Discovery Order on various 24 grounds. See Doc. No. 126. Defendant Axos Bank has filed a response in opposition to 25 the objection, to which Plaintiff replied. See Doc. Nos. 166, 163. For the reasons set 26 forth below, the Court OVERRULES Plaintiff’s objection. 27 Pursuant to Federal Rule of Civil Procedure 72(a), a party may object to a non- 28 dispositive pretrial order of a magistrate judge within fourteen days of service of the 1 order. Fed. R. Civ. P. 72(a). District court review of magistrate judge orders on non- 2 dispositive motions is limited. A district judge may reconsider a magistrate judge’s 3 ruling on a non-dispositive motion only “where it has been shown that the magistrate 4 [judge]’s order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see 5 also Fed. R. Civ. P. 72(a); Grimes v. City and Cnty. Of San Francisco, 951 F.2d 236, 240 6 (9th Cir. 1991). “Under this standard of review, a magistrate [judge]’s order is ‘clearly 7 erroneous’ if, after considering all of the evidence, the district court is left with the 8 definite and firm conviction that a mistake has been committed, and the order is ‘contrary 9 to law’ when it fails to apply or misapplies relevant statutes, case law or rules of 10 procedure.” Yent v. Baca, No. CV 01-10672 PA (VBKx), 2002 U.S. Dist. LEXIS 28776, 11 at *4 (C.D. Cal. Dec. 12, 2002). 12 The threshold of the “clearly erroneous” test is high and significantly deferential. 13 “The reviewing court may not simply substitute its judgment for that of the deciding 14 court.” Grimes, 951 F.2d at 241. “A finding is ‘clearly erroneous’ when although there 15 is evidence to support it, the reviewing court on the entire evidence is left with the 16 definite and firm conviction that a mistake has been committed.” United States v. U.S. 17 Gypsum Co., 333 U.S. 364, 395 (1948); Mathews v. Chevron Corp., 362 F.3d 1172, 1180 18 (9th Cir. 2004). In comparison, a magistrate judge’s order is contrary to law if the judge 19 applies an incorrect legal standard or fails to consider an element of the applicable 20 standard. See Hunt v. Nat’l Broad Co., 872 F.2d 289, 292 (9th Cir. 1989) (noting that 21 such failures constitute abuse of discretion.) 22 Having conducted an in camera review of the subject documents1 and upon review 23 of the entire record, including Judge Leshner’s Discovery Order and the parties’ briefs, 24 the Court is not persuaded that Judge Leshner’s Order was clearly erroneous or contrary 25 to law. Judge Leshner found that Axos Bank satisfied its burden of demonstrating that 26

27 1 Pursuant to the Court’s November 19, 2024 Order, Axos Bank lodged the subject documents with the 28 1 disputed documents were protected by the attorney-client privilege and work product 2 doctrine. See Doc. No. 118. Contrary to Plaintiff's assertion, the Court is not convinced 3 || that Judge Leshner misapplied Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 4 || And a review of the remainder of Plaintiff's objection reveals that she merely disagrees 5 || with Judge Leshner’s analysis and conclusions. Namely, Plaintiff argues that Judge 6 || Leshner erroneously concluded that: the documents were created with the primary 7 || purpose of obtaining legal advice, Doc. No. 126 at 15—21; Axos Bank had not waived 8 || privilege, id. at 22-23; and the withheld documents were protected by the work-product 9 || doctrine, id. at 24-26. However, Plaintiff identifies no clear error as to these findings and 10 || on this record, the Court is not left with a definite or firm conviction that a mistake has 11 committed. Accordingly, the Court OVERRULES Plaintiff's objection to Judge 12 || Leshner’s September 23, 2024 Discovery Order. 13 IT ISSO ORDERED. 14 Dated: January 6, 2025 15 Mitek. M={ hillr 16 HON. MICHAEL M. ANELLO 7 United States District Judge 18 19 20 21 22 23 24 25 26 27 28