Judge Daniel M. Crowley, Case Number: 22STCV37262, Date: 2024-03-05 Tentative Ruling

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Defendant Vegamour, Inc.’s unopposed motion to quash Plaintiff Erica Wohlwend’s three record subpoenas served on the Better Business granted in part and denied in part. Plaintiff’s subpoena to BBB in McLean, Virginia, is granted. Defendant’s motion to quash Plaintiff’s two subpoenas to BBB in San Jose are granted as modified with regard to Requests 1-4, and denied, but subject to a protective order, for Requests 5-8.

Defendant Vegamour, Inc. (“Vegamour”) (“Defendant”) moves unopposed to quash Petitioner Erica Wohlwend’s (“Wohlwend”) (“Plaintiff”) the three Record Subpoenas (“Subpoenas”) served on the Better Business Bureau (“BBB”). (Notice Motion, pg. 2; C.C.P. §1987.1.)[1]

On or about October 5, 2023, Plaintiff served a Notice to Consumer or Employee and Objection on the Custodian of Records for the BBB in San Jose, California. (Decl. of Sahakyan ¶3, Exh. B.) On or about October 5, 2023, Plaintiff served a Notice to Consumer or Employee and Objection on the Custodian of Records for the National Advertising Division of the BBB in San Jose, California. (Decl. of Sahakyan ¶4, Exh. C.) On or about October 17, 2023, Plaintiff served a Notice to Consumer or Employee and Objection on the Custodian of Records for the BBB National Advertising Division in McLean, Virginia. (Decl. of Sahakyan ¶5, Exh. D.)

Defendant filed the instant motion on October 27, 2023. As of the date of this hearing Plaintiff has not filed an opposition.

A motion to quash shall be accompanied by a declaration showing a “reasonable and good faith attempt at informal resolution of the dispute” between the party requesting the records and the “consumer” or “employee” whose records are involved or counsel for such person. (C.C.P. §§1985.3(g), 1985.6(f)(4).)

Defendant’s counsel, Rima A. Sahakyan’s, declaration fails to state a “reasonable and good faith attempt at informal resolution of the dispute.” Defendant’s motion therefore fails to comply with C.C.P. §1985.3(g) or §1985.6(f)(4). The Court, in its discretion, will consider Defendant’s motion.

If a subpoena requires . . . the production of books, documents, electronically stored information, or other things before a court, . . . the court, upon motion reasonably made by [a party], or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

A party may only discover matters, not privileged, that are relevant to the subject matter involved in the pending action and that are either admissible evidence or “reasonably calculated to lead to the discovery of admissible evidence.” (C.C.P. §2017.010.) Broad discovery requests are not reasonably calculated to lead to the discovery of admissible evidence. (See Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224-225.)

A nonparty entity located outside California cannot be compelled by subpoena to produce records. (Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 810 [“Truly, if a subpoena is served on a non-party, and requires the personal appearance of a custodian not resident in California, other means must be resorted to secure the documents”]; see also Coopman v. Superior Court (1965) 237 Cal.App.2d 656, 660-661 [A corporate president, who was a resident party, could not be compelled to produce business records of his nonresident, nonparty corporation because California did not have jurisdiction over the corporation].)

First, Plaintiff’s subpoena to BBB’s record custodian in McLean, Virginia is not subject to this Court’s jurisdiction because BBB in Virginia is a nonparty entity located outside of California. Second, Plaintiff’s subpoena to BBB in Virginia is procedurally improper because it fails to check a box specifying how the BBB in Virginia should produce the documents Plaintiff seeks. (See Decl. of Sahakyan ¶5, Exh. D at Deposition Subpoena ¶1.) Therefore, Plaintiff’s subpoena to BBB in Virginia must be quashed.

Third, none of the three Subpoenas are relevant or reasonably calculated to lead to the discovery of admissible evidence because they are overbroad and lacking in specificity. Request 1 in all three Subpoenas seeks “[a]ny and all documents regarding Vegamour, Inc. from 2018 through 2023.” (Decl. of Sahakyan, Exhs. B-D.) Plaintiff’s Complaint alleges she was employed by Defendant from February 2021 until April 2022. (Complaint ¶¶10, 14a.) However, this request seeks documents from a period of four years during which Plaintiff had no relationship Defendant. Therefore, Plaintiff’s request is overbroad in time. Moreover, the language of Request 1 lacks any specificity to Plaintiff’s claims. By seeking “all documents regarding” Defendant, it is unclear how such a broad request would reasonably lead to the discovery of admissible evidence relating to Plaintiff’s narrow claims of retaliation, breach of contract, and wrongful termination. Request 1 must be limited in time to February 2021 until April 2022.

Further, Plaintiff’s Requests 2-4 are overbroad in time and scope. As stated above, Plaintiff’s Complaint alleges she was employed by Defendant from February 2021 until April 2022. (Complaint ¶¶10, 14a.) However, these requests seek documents beyond the period in which Plaintiff was employed Defendant. Request 2 must be limited in scope to February 2021 until April 2022 for communications with employees, and Requests 3-4 must be limited in scope from 2022 to the present to account for open and closed complaints related to the Gro Ageless product line.

However, Defendant’s objections to Requests 5-8 are not well taken, as they directly pertain to Plaintiff’s allegations of retaliation based on her alleged protected activities related to false advertising of the efficacy of Gro Ageless products. (Complaint ¶¶12-13.) Further, any privileged or confidential information sought in the requests can be subject to a protective order. (C.C.P. §2025.420.)

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] Defendant appears to request this Court quash three separate deposition subpoenas yet combines its request in one motion. Defendant therefore owes this Court $120.00 in filing fees for the two extra motions it failed to separately file, regardless of the case law it cites in its brief.