Judge: Alison Mackenzie, Case: 21STCV22674, Date: 2024-02-26 Tentative Ruling

Case Number: 21STCV22674    Hearing Date: February 26, 2024    Dept: 55

NATURE OF PROCEEDINGS:  Third-Party Henry H. Gonzalez’s Motion to Quash Application and Order for Appearance and Examination and Subpoena Duces Tecum. 

The motion to quash is denied.

BACKGROUND

GERALD OWEN RYCKMAN and JUDITH LORRAINE RYCKMAN (“Plaintiffs”) brought this case against Defendants LAURA DREXLER and DAVID DREXLER as Trustees of the Drexler Trust, and the Drexlers’ attorney Michael Schwimer, to preclude enforcement of sanctions orders issued in a separate case between Plaintiffs and the Drexler Defendants. Defendants filed an anti-SLAPP motion and Plaintiffs dismissed the case days after filing their opposition. The Court entered Judgment, awarding attorneys’ fees to Defendants pursuant to the SLAPP statute. 

Plaintiffs appealed the ruling. In July 2022, during the appeal, the Drexler Defendants served an Order for Appearance and Examination and document subpoena (collectively “ORAP”) on Henry H. Gonzalez (“Gonzales”). The Court of Appeal issued a remittitur affirming the ruling on 7/13/23.

Gonzalez filed a motion to quash the ORAP on 8/26/22. The Drexler Defendants oppose the motion.

ANALYSIS

            Appeal Stay

Gonzalez argued that the ORAP should be quashed because the Drexler Defendants issued the ORAP when the case was stayed on appeal. For an automatic stay pending appeal, there must be a pending appeal that could be affected. Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal. App. 4th 1168, 1173 (citing CCP §916). Gonzalez’s argument regarding the stay is moot because the appeal is over now that the Court of Appeal issued the remittitur in July 2023.

            Deposing Opposing Counsel

Gonzalez next argues that he is counsel for Plaintiffs in another case and thus he cannot be examined as part of a judgment debtor exam in this case because the attorney-client privilege precludes Gonzalez’s testimony.

The party seeking the deposition of opposing counsel has the burden to prove no other means and the crucial nature, whereas the objecting party has the burden to evidence the privileges.  Carehouse Conv. Hosp. v. Sup. Ct. (2006) 143 Cal.App.4th 1558, 1563-64. But of course, this rule does not apply here because Gonzalez is not Defendants’ opposing counsel in this case. Even assuming, arguendo, that the rules apply, the Drexler Defendants’ declarations make clear that only Gonzalez has crucial information about funds he is holding for the benefit of Plaintiffs, the judgment debtors. (Opp., filed 1/25/23, p. 8, ¶ 5.)

Therefore, the Court rejects this ground for quashing.

            Attorney-Client Privilege

Gonzalez contends that any testimony at the examination would be objectionable based on the attorney-client privilege.  (Mot., 1:12-14.) A blanket order against a deposition may be an abuse of discretion, and privilege objections can be raised question-by-question.  Meritplan Ins. Co. v. Sup. Ct. (1981) 124 Cal.App.3d 237, 242.

Here, the Court lacks information to rule that every possible question in an examination would be subject to the attorney-client privilege objection, particularly because questions could be phrased to avoid at least partly implicating the privilege. The only sound method shown here is for such objections to be raised at the examination, question-by-question.

Hence, the Court rejects this basis of the motion.