Judge: Christopher K. Lui, Case: 21STCV00234, Date: 2022-08-30 Tentative Ruling

Case Number: 21STCV00234    Hearing Date: August 30, 2022    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  As required by Rule 3.1308(a)(2), 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.  If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

STATEMENT OF FACTS 

            Plaintiffs allege that Defendant insurer low-balling a claim for water damage to Plaintiff insureds’ home due to a flood from a toilet clog.

Plaintiff Jerry Vovk moves to compel compliance with the deposition subpoena for production of business records from third party Rossmoyne, Inc.

TENTATIVE RULING

The hearing on Plaintiff Jerry Vovk’s motion to compel compliance with the deposition subpoena for production of business records from third party Rossmoyne, Inc.  is CONTINUED to September 30, 2022 at 8:30 AM. Plaintiff is to submit a separate statement setting forth good cause for production of each category of documents by September 21, 2022.

ANALYSIS

Motion To Compel Deposition

Plaintiff Jerry Vovk moves to compel compliance with the deposition subpoena for production of business records from third party Rossmoyne, Inc.

            CCP § 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.)  § 1987.1 does not contain a meet and confer requirement.

            However, case law has read a good cause requirement as to requests for production of documents from a nonparty:

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.

(Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 223-24.)

“Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223 [61 Cal. Rptr. 2d 567].) Discovery devices must “be used as tools to facilitate litigation rather than as weapons to wage litigation.” (Id. at p. 221.) A party seeking to compel discovery must therefore “set forth specific facts showing good cause justifying the discovery sought.” (§ 2031.310, subd. (b)(1); see Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th at p. 223.)  To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.

(Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224 (bold emphasis and underlining added), overruled on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, n. 8.)

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.) . . .

(Calcor Space Facility, supra, 53 Cal.App.4th at 223-25 [bold emphasis and underlining added].)

           Here, Plaintiff seeks to compel non-party Rossmoyne, Inc. to produce 30 categories of documents set forth in the deposition subpoena. Plaintiff did not make a specific showing of good cause for production of these documents.

           The hearing is CONTINUED to September 30, 2022 at 8:30 AM. Plaintiff is to submit a separate statement setting forth good cause for production of each category of documents by September 21, 2022.