Judge David S. Cunningham, Case Number: 22STCV35845, Date: 2024-01-04 Tentative Ruling

Judge: David S. Cunningham, Case: 22STCV35845, Date: 2024-01-04 Tentative Ruling

Defendant’s motion to quash is granted without prejudice. The subpoena is quashed without prejudice until certification is resolved.

“Defendant [allegedly] operates an industrial animal rendering and grease recycling facility [] that releases noxious off-site odors, causing material injury” to Plaintiffs’ property and to the putative class members’ properties “through negligence and nuisance.” (Complaint, ¶ 2.)

Here, Defendant moves to quash Plaintiffs’ business-records subpoena to nonparty Tetra Tech, Inc. (“Tetra Tech”).

The study is called the Odor Sampling and Dispersion Study. In response to Plaintiffs’ special interrogatories in this case, “Defendant identified the study and provided a privilege log to Plaintiffs’ counsel[.]” (Deignan Decl., ¶ 3.) In turn, Plaintiffs served a business-records subpoena on Tetra Tech to obtain the study and related documents.[1] Then the parties met and conferred multiple times, but they failed to reach an agreement.[2]

The first issue is whether the motion is timely. Plaintiffs contend the answer is no because Defendant filed the motion late under Code of Civil Procedure section 1985.3(g). (See Opposition, pp. 9-10.) The Court disagrees. Section 1985.3(g)’s time limit is nonjurisdictional. (See Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 8:602.1.) A court is free to “grant a motion to quash served even after the date set for production.” (Ibid., emphasis in original.)

The next issue is whether the subpoena is premature (this issue is not discussed by the parties in their briefs; the Court is raising it sua sponte). The answer is yes. Right now, discovery is limited to certification discovery. The Court finds that the motion should be granted, and the subpoena should be quashed, without prejudice until certification is resolved because the study and related documents – which pertain to an unrelated pre-litigation matter, namely, Defendant’s decision to hire Jackson DeMarco and Tetra Tech to help prepare Defendant’s response to SCAQMD’s Rule 415 proposal – do not bear on certification and either are irrelevant to the case or constitute merits discovery.

Plaintiffs’ argument fails to change the analysis. Plaintiffs claim the study and related documents are material to certification. They assert that they lack other emissions data and that, without the study and related documents, they would be unable to perform atmospheric-dispersion modeling to show a classwide basis for liability. (See Opposition, p. 14.) The Court disagrees. The following facts suggest that the case does not concern the conditions that existed at the time of the study: (1) SCAQMD began formulating Rule 415 in 2014 (see Andreoli Decl., ¶ 3); (2) Tetra Tech’s study is dated May 2015 (see, e.g., Opposition, p. 5); (3) Plaintiffs’ alleged class period starts three years prior to the filing of the complaint (see Complaint, ¶ 39) – i.e., November 2019, more than four years after the study; and (4) the subject odor event allegedly commenced in June 2022 (see id. at ¶ 29), almost seven years after the study. Thus, at the certification stage (at least), the study and related documents appear immaterial.[3]

The last two issues concern the attorney-client and work-product privileges. Given the preceding analysis, the Court declines to reach these issues.

[1] The subpoena requests:

1. A true and complete copy of the Odor Sampling and Dispersion Study, including any attachments, appendices, and references;

2. All air sampling and/or emissions data collected, obtained, referenced, or relied upon in generating the Odor Sampling and Dispersion Study;

3. Any and all modeling files created, obtained, produced, and/or utilized by [Tetra Tech] in association with the Odor Sampling and Dispersion Study;

4. Any and all documents relating to the Odor Sampling and Dispersion Study.

(Motion, p. 4.)

[2] Defendant’s counsel describes the meet-and-confer process this way:

4. On August 2, 2023, the parties, through counsel, met and conferred regarding Plaintiffs’ subpoena to Tetra Tech[] Plaintiffs agreed to withdraw their subpoena to Tetra Tech[] at that time, in an effort to focus on potential settlement at mediation. The parties agreed to discuss the matter at a later date if mediation was not successful. . . .

5. On September 5, 2023, Plaintiffs’ counsel contacted Defendant’s counsel to schedule a further meet and confer conference regarding discovery, including the Tetra Tech[] study. . . .

6. On September 6, 2023, Defendant’s counsel agreed to find a mutually agreeable date and time to discuss the subpoena. The parties attempted to meet and confer on September 12, September 14, and September 20, 2023. . . .

7. The parties conducted a telephone call on written discovery issues on September 20, 2023, however the call ended before the parties could discuss the Tetra Tech[] subpoena.

8. On September 25, 2023, Defendants, through counsel, invited further meet and confer efforts with Plaintiffs’ counsel regarding the Tetra Tech[] subpoena. . . .

9. On September 27, 2023, Plaintiffs’ counsel informed Defendants that they would not agree to withdraw the instant subpoena, requiring the instant Motion. . . .

(Deignan Decl., ¶¶ 4-9; see also Reply, pp. 2-3 [claiming Plaintiffs reissued the subpoena on August 24, 2023 despite their agreement to withdraw it].)

[3] The Court grants Plaintiffs leave to re-request the study and related documents post-certification. Defendant, of course, will be permitted to object.