Judge: Christopher K. Lui, Case: 20STCV21707, Date: 2024-03-29 Tentative Ruling

Case Number: 20STCV21707    Hearing Date: March 29, 2024    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

            Plaintiff alleges that Defendant, Plaintiff’s brother, has breached fiduciary duties owed by Defendant to Plaintiff as a partner of partnerships and as trustee of a trust of which Plaintiff is a beneficiary. Defendant has also failed to produce complete partnership and trust documents requested by Plaintiff. Plaintiff seeks dissolution of the partnerships and an accounting.

Defendant filed a Cross-Complaint alleging that Plaintiff has breached an oral agreement to share the distribution she received as a result of the Estate of Robert J. Van Santen’s sale of the remaining interest in Prime/Devonshire Investment, LLC.

Plaintiff/Cross-Defendant Patricia Van Santen moves for an order compelling compliance with the subpoena served upon third party Clearwater Properties.

TENTATIVE RULING

Plaintiff/Cross-Defendant Patricia Van Santen’s motion to enforce the subpoena is DENIED without prejudice.

Motion To Compel Compliance With Subpoena

Plaintiff/Cross-Defendant Patricia Van Santen moves for an order compelling compliance with the subpoena served upon third party Clearwater Properties. Defendant Robert Van Santen, who owns and operates Clearwater, objected to the subpoena.

Civ. Proc. Code, § 1987.1(a) provides: “If a subpoena requires the attendance of a witness or the production of . . . documents . . . at the taking of a deposition, the court, upon motion . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare. . . .”  (Civ. Proc. Code, § 1987.1(a).) § 1987.1 does not contain a meet and confer requirement, nor a requirement that good cause for production of documents be shown.

            However, case law has read a good cause requirement as to requests for production of documents from a nonparty. (Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 223-24.) Here, the subpoena contains 73 requests for production of documents. However, Plaintiff has not made a fact-specific showing of good cause for each category.

In the course of the litigation, Thiem served a subpoena under section 2020 on Calcor's custodian of records demanding Calcor, a nonparty and Thiem's competitor, to, in effect, produce all materials in its possession relating to gun mounts, going back nearly 10 years. The subpoena fails to identify any specific document but merely describes broad categories of documents and other materials.

     (Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 219.)

Although the scope of civil discovery is broad, it is not limitless. . . .  [Former] Section 2031, subdivision (l), which applies to document production requests served on a party, requires a  [*224]  party seeking to compel such production to "set forth specific facts showing good cause justifying the discovery sought by the inspection demand . . . ." (Italics in original.) Section 2020, the statute at issue, contains no such specific requirement. However, since both sections are part of a single statutory scheme, and since it is unlikely the Legislature intended to place greater burdens on a nonparty than on a party to the litigation, we read a similar requirement into the latter section.

(Id. at 223-24 [bold emphasis added].)

Even were we to ignore that the statements purporting to justify an order compelling Calcor to produce its documents and other materials are unverified, they still fail. There is an absence of specific facts relating to each category of materials sought to be produced; the justifications offered for the production are mere generalities. The very vice of the subpoena's promiscuity is well illustrated by Thiem's inability to provide focused, fact-specific justifications for its demands. The noted generality of the subpoena's definitions, instructions and categories which merely add up to a demand Calcor produce everything in its possession having anything to do with gun mounts, precludes Thiem from demonstrating any particular item or category in fact constitutes or contains matter which "is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." (§ 2017, subd. (a).) The purported justification for imposing this great burden on Calcor necessarily suffers from the same generality as the subpoena itself.

Although appellate courts have frequently stated "fishing expeditions" are permissible in discovery, there is a limit. As noted in Gonzalez v. Superior Court (1995) 33 Cal. App. 4th 1539 [39 Cal. Rptr. 2d 896], "These rules are applied liberally in favor of discovery ( Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal. 3d 785, 790), and (contrary to popular belief), fishing expeditions are permissible in some cases." (Id. at p. 1546.) However, early in the development of our discovery law our Supreme Court recognized the limits on such "fishing expeditions." In  [*225] Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355 [15 Cal. Rptr. 90, 364 P.2d 266], the seminal case in California civil discovery, the court gave examples of improper "fishing" WHICH CLEARLY APPLY HERE: "The method of 'fishing' may be, in a particular case, entirely improper (i.e., insufficient identification of the requested information to acquaint the other party with the nature of information desired, attempt to place the burden and cost of supplying information equally available to both solely upon the adversary, placing more burden upon the adversary than the value of the information warrants, etc.). Such improper methods of 'fishing' may be (and should be) controlled by the trial court under the powers granted to it by the statute." ( Id. at pp. 384-385.) The concerns for avoiding undue burdens on the "adversary" in the litigation expressed in Greyhound apply with even more weight to a nonparty.

(Id. at 224-25 [bold emphasis and underlining added].)

            Because Plaintiff has not made a fact-specific showing of good cause for production of each category, the motion to enforce the subpoena is DENIED without prejudice.