Judge: Blaine K. Bowman, Case: 37-2021-00028919-CU-OR-NC, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 30, 2023

12/01/2023  10:00:00 AM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Other Real Property Discovery Hearing 37-2021-00028919-CU-OR-NC BLUE DIAMOND REAL ESTATE HOLDINGS LLC VS ALLEN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Quash Subpoena, 08/30/2023

An appearance is necessary to address the Motion to Quash Deposition Subpoena for Business Records to Cisne/Juan Vasquez brought by defendants Simon and Lisa Allen (collectively, the Allens).

Prior to the hearing on this matter, the parties are ORDERED to engage in meaningful meet and confer regarding the issues addressed in the tentative ruling below and to come to the hearing prepared to apprise the Court of the progress made as a result of said meet and confer efforts.

This case pertains to adjacent homes in a residential neighborhood in which plaintiff Blue Diamond Real Estate Holdings LLC (Plaintiff) alleges that damage due to water intrusion has resulted to the home on Plaintiff's property as a result of certain irrigation that the Allens had installed on their property – as well as due to an aging fence/wall with hairline fractures that no longer prevents water intrusion. Plaintiff issued a subpoena to the Allens' landscaper: Cisne/Juan Vasquez.

As a brief aside, the Court notes that there were some initial concerns with designation of a proper deposition officer, but both parties appear to agree that that issue has been resolved by Plaintiff issuing new, corrected, deposition subpoena. As such, the Court declines to further address that issue and will proceed as to the substance and merits of the discovery dispute.

After the subpoena was issued, the evidence submitted alongside the motion indicates that counsel for the Allens contacted Plaintiff's counsel and requested a narrowing of the scope of the subpoena 'to include all work Juan Vazquez performed along the retaining wall separating the Blue Diamond and Allen Properties.' (ROA 103, Mikucki Decl., ¶ 12.) While there does not appear to be a technical meet and confer requirement applicable to a motion to quash a deposition subpoena, this attempt at meeting and conferring appears to have been a step in the right direction. However, according to counsel for the Allens: Plaintiff's counsel responded that same day that he would narrow the scope of the Deposition Subpoena, however, as of the date of the drafting of this motion, counsel has taken no steps to either withdraw or narrow the scope of the Deposition Subpoena. (ROA 103, Mikucki Decl., ¶ 12.) The actual email trail tells a slightly different story. That it appears to be true that Attorney Mikucki reached out via email and asked to narrow the scope, counsel for the Allens responded agreeably, but followed-up with another question of their own – a question to which it appears Attorney Mikucki did not respond: Calendar No.: Event ID:  TENTATIVE RULINGS

3014897 CASE NUMBER: CASE TITLE:  BLUE DIAMOND REAL ESTATE HOLDINGS LLC VS ALLEN [IMAGED]  37-2021-00028919-CU-OR-NC Zach, I can narrow it down but I want to include any water damage or plumbing work too. From his testimony that is all he did for them. Was there more work done? (ROA 103, Mikucki Decl., ¶ 12, Ex. B.) It is understandable that Plaintiff's counsel initially made broad requests, as the burden of requesting information in the discovery process is initially on the party seeking it and the failure to adequately request all information means that the requesting party has not diligently litigated its case and will have to live with the consequences. As such, the Court does not view the initial requests as improper.

Similarly, it seems reasonable enough that the Allens would wish to limit the requests to certain landscaping work that pertains to the retaining wall that is at issue in this case – provided that more related work is not lurking in the background. As such, Plaintiff's counsel understandably wished to clarify that, indeed, there was no other work done that might be relevant. As best the Court can tell from the email chain, the Allens were unwilling to confirm that no other work was done. As such, the proverbial 'ball' rests in their court in terms of meeting and conferring in good faith.

This chain of events, however, makes the status of the present motion somewhat baffling, as it seems to be an issue that should have been resolved between the parties. Specifically, though the Allens portray the requests at issue as being overbroad by citing their language as written, Plaintiff's opposition brief indicates that only five categories of information were being sought: (1) whether the plans used to build Defendants' irrigation system were compliant with all applicable codes (2) the types of materials used to build the irrigation system (3) the status reports of all the work completed on the irrigation system (4) the relevant costs associated with the irrigation system (5) the overall stability of Defendants' foundation.

(Opposition, p. 2:15-20.) The Allens' response to this is: Quite frankly, if the above was actually what the documents the Deposition Subpoena was requesting, Defendants would have no objection. (Reply, p. 2:1-3.) This begs the question: why hasn't information within that more limited scope already been turned over? The general obligation in discovery is to turn over responsive information that there is no objection to producing, leaving only the other materials that are the subject of a dispute to be withheld and litigated.

While that general rule may not apply in the subpoena context, the Motion to Quash here is not brought by the third-party target of the subpoena, but rather by the Allens themselves.

Simply put, it appears that the Allens had but to confirm that their landscaper did not do work in other areas and Plaintiff would readily agree to accept production limited to that scope. But that, too, begs the question: if the landscaper did not do any other work, why are the Allens even objecting since there will not be any other documents if the landscaper did not do any other work.

The best that can be surmised on this record is that the landscaper did some other work on the Allens' property, but they do not wish to have that information turned-over. Ruling on that issue is somewhat of a challenge with the information at hand because the Allens have not really identified anything particularly privileged about that information (though they note that it might pertain to the inside of their home where their privacy interests are greater). Ultimately, the parties should come to the hearing prepared to discuss what documents might exist that would be within the scope of the initial request (which was the broader) that would fall outside of the overlay suggested in the opposition brief (which was narrower). Though the five categories identified in the opposition brief might narrow the request in a manner that seems reasonable to the Court, artificially overlaying those limitations onto the discovery requests as they stand is not completely clear at this juncture. Moreover, as the Allens failed to respond to the question presented by Plaintiff's counsel as to whether there was more work done, even if the Court were inclined to narrow the scope of the inquiry (which would mean at least a partial 'win' for the Calendar No.: Event ID:  TENTATIVE RULINGS

3014897 CASE NUMBER: CASE TITLE:  BLUE DIAMOND REAL ESTATE HOLDINGS LLC VS ALLEN [IMAGED]  37-2021-00028919-CU-OR-NC Allens in terms of obtaining what they are requesting via this motion), their failure to respond to the question posed by Plaintiff's counsel (which may have removed the necessity to file the instant motion altogether) represents the kind of circumstance that would make imposition of a sanction against Plaintiff unjust.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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