Judge: Douglas W. Stern, Case: 21STCV33397, Date: 2023-02-27 Tentative Ruling

Case Number: 21STCV33397    Hearing Date: February 27, 2023    Dept: 68

Jaime Alejandre vs. Ramon Ruiz, et al. Case No. 21STCV33397

Motion to Compel Compliance of Non-Party with Deposition Subpoena for Production of Business Records

Moving Party – Plaintiff Jaime Alejandre

Responding Party – Non-Party Del Records, Inc.

Moving Party’s Position

            This action arises from Defendant Ramon Ruiz’s alleged misappropriation of funds from a partnership formed between Ruiz and Plaintiff Jaime Alejandre (Plaintiff). That partnership was operated through a business entity, Defendant Lumbre Music. Under their agreement, they would seek out new musical talent to be signed to Rancho Humilde Entertainment, LLC.

In this motion, Plaintiff alleges that Non-Party Del Records is paying all or some of the legal fees of Defendants because Del Records is Rancho Humilde’s biggest competitor. Plaintiff claims that knowing whether Del Records is paying these legal fees is relevant to the current action and seeks information related to whether Del Records is paying the legal fees. Plaintiff seeks further responses to Business Records Requests Nos. 3-6, which seek information 1) relating to any agreements whereby Del Records agreed to pay all or some legal fees in connection with this case; 2) relating to any agreements to pay Del Records a portion of any recovery from this case; 3) transmitted between Del Records and the law firm of Kinsella Weitzman Iser Kump Holley LLP related to this case; and 4) relating to sums paid or remitted by Del Records to the Kinsella Firm for legal fees in this case. Del Records objected to these requests.

            Plaintiff argues in his motion that the motion is timely based on when the supplemental responses and objections were served (Del Records served the objections on November 30, 2022, and Plaintiff filed his motion on December 19, 2022). Plaintiff further argues that the documents sought are discoverable because the alleged funding of the litigation by Del Records creates bias and credibility issues for Defendants. The only authority that Plaintiff cites to support this notion are unpublished federal decisions. Plaintiff also argues that the alleged funding may be a surreptitious attempt by Del Records to gain access to Plaintiff’s confidential and proprietary information. Finally, Plaintiff argues that meet and confer attempts have been fruitless and court intervention is necessary.

Non-Party’s Opposition

            Del Records opposes Plaintiff’s motion. First, Del Records makes the procedural arguments that Plaintiff’s motion was untimely and that the motion is based on allegations and arguments that were not met and conferred upon in good faith because Del Records alleges that Plaintiff never mentioned that he was seeking the information because Del Records is Rancho Humilde’s competitor or because Del Records wants to gain access to confidential information. Del Records also argues that the motion is not supported by admissible evidence because it is only accompanied by the declaration of Plaintiff, which Del Records argues is hearsay.

            Next, Del Records alleges that the subpoena seeks irrelevant information because whether or not Del Records is involved is not relevant to the underlying action for misappropriation of funds. Additionally, Del Records argues that Plaintiff’s speculative theory does not support a finding of admissible evidence, as it does not go towards any claim or defense in the underlying action and would be beyond the scope of discoverability. Del Records also takes issue with the unpublished decisions that Plaintiff cited in his motion.

            Del Records then argues that the subpoena improperly seeks discovery from a non-party that would be within the possession, custody, and control of a party to the action. Essentially, Del Records alleges that if Del Records were paying Defendants’ legal fees, then Defendants would be in possession of any documents related to such an arrangement.

            Finally, Del Records argues that the subpoena seeks documents that would be protected by the work product doctrine because documents related to legal representation would have been made in anticipation of litigation.

Plaintiff’s Reply

            First, Plaintiff argues in his reply that his motion was timely. Next, he argues that the parties did meet and confer in good faith. Plaintiff also argues that the Court is permitted to consider non-admissible evidence. Further, Plaintiff argues that the information sought is relevant because it could lead to evidence about Defendants’ credibility in the lawsuit and why they are pursuing the cross-complaint. Plaintiff also doubles down on his use of the unpublished federal decisions.

            Finally, Plaintiff argues that the documents sought are not attorney-work product and that Plaintiff already attempted to obtain the documents through written discovery with Defendants. Plaintiff said that he requested documents from Defendants that relate to Del Records, but Defendants did not provide any such documents.

Evidentiary Objections

            Del Records’ Evidentiary Objections to the Declaration of Jaime Alejandre:

                        Sustained: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12

                        Overruled: None

            Plaintiff’s Evidentiary Objections to the Declaration of Angel Del Villar

                        Sustained: 1, 3, and 4

                        Overruled: 2

Analysis

            Plaintiff’s motion does not seek information from this third party that falls within the proper bounds of discovery.  It is neither relevant nor reasonably likely to lead to the discovery of admissible evidence.

            A party “may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “To meet this standard, a party seeking to compel production of records from a nonparty must articulate specific facts justifying the discovery sought; it may not rely on mere generalities. In assessing the party’s proffered justification, courts must keep in mind the more limited scope of discovery available from nonparties.” Cnty. of Los Angeles v. Superior Court (2021) 65 Cal.App.5th 621, 638 (internal citations and quotations omitted)

Thus, “[t]o 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; Snell v. Superior Court (1984) 158 Cal.App.3d 44, 50 (information that is “only tenuously connected” to the subject matter of the action is not discoverable).) Only if the moving party has met its burden of showing “good cause” does the burden shift to the responding party to justify its relevance-based objections to the discovery. (See, e.g., Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98 (burden shifts to responding party “once good cause [i]s shown”).)

Plaintiff has not articulated specific facts justifying the discovery sought. Nor has Plaintiff shown good cause for why the information related to who is paying Defendants’ legal fees will tend to prove or disprove any facts in the litigation or lead to other discoverable information. The suggestion that somehow learning that a third party is financing Defendants’ litigation would somehow reflect upon Defendants’ credibility is not understood by the Court. Further, the information is irrelevant to the underlying action of misappropriation of funds.

Therefore, Plaintiff’s motion to compel compliance with subpoena of business records is DENIED.