Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

BACKGROUND 

Plaintiff Nafeh Sebai (the “Plaintiff”) filed this action seeking coverage from Defendant Nationwide Mutual Insurance Company (“Nationwide”) under a homeowners insurance policy, for water damage at Plaintiff’s home.  Plaintiff hired RR Construction & Restoration (“RR Construction”) to perform mitigation services at the Property relating to the water damage.   

Nationwide served RR Construction with a subpoena requesting the production of business records by June 21, 2024 (the “Subpoena”).  On June 21, 2024, RR Construction failed to produce any documents or even provide any response or objection to the Subpoena.  Thereafter, Nationwide’s counsel made repeated attempts to contact RR Construction concerning the Subpoena but, to date, has not received any response.  

This hearing is on Nationwide’s motion to compel RR Construction to comply with the Subpoena.  Nationwide argues the Subpoena seeks relevant documents, and RR Construction has failed to respond, thereby waiving any objections RR Construction may have had.  There was no opposition filed as of the posting of this tentative ruling.   

MEET AND CONFER 

Prior to the filing of this motion, Nationwide’s counsel attempted to meet and confer with RR Construction, but to no avail.  On June 27, 2024, Nationwide’s counsel called RR Construction, but only heard a loud beep. (Chow Decl., ¶ 6.)  That same day, Nationwide’s counsel also sent an email requesting a date by which Nationwide could expect RR Construction’s document production.  (Id. ¶ 6, Ex. C.)  

On July 3, 2024, Nationwide’s counsel left a voicemail for RR Construction and sent another email concerning the Subpoena. (Id.)  On July 10, 2024, Nationwide’s counsel attempted to contact RR Construction by phone again and sent another email inquiring about the Subpoena. (Id.)  

On August 12, 2024, Nationwide’s counsel mailed and personally served a letter on RR Construction, detailing Nationwide’s attempts to contact RR Construction and informing RR Construction of its obligation to comply with the Subpoena. (Id. ¶ 7, Ex. D.)  To date, RR Construction has not produced any documents in response to the Subpoena, served any objections to the Subpoena, or otherwise responded to Nationwide’s meet and confer attempts. (Id. ¶ 8.)  

LEGAL STANDARD 

The California Code of Civil Procedure permits discovery from a nonparty through a subpoena for the production of business records.  (Civ. Proc. Code §§ 2020.010, 2020.020.)  Section 19871.1 authorizes a party seeking discovery from a third-party through a subpoena to bring a motion to compel compliance with that subpoena. Cal. Civ. Proc. Code § 1987.1. The moving party is only required to show that the “production sought is subject to discovery.”  (See Cal. Civ. Proc. Code § 2025.480(i).) 

“[A] civil litigant’s right to discovery is broad.”  (Yelp Inc. v. Superior Court (2017) 17 Cal. App. 5th 1, 15.)  “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  (Id.) “[S]tatutes governing discovery ‘must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial.”’ (Id.)  “This means that ‘disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it.”’ (Id.)   

The opposing party bears the burden of justifying its refusal to comply with the subpoena.  (See Williams, 3 Cal. 5th at 541 (while a propounding party has the burden “of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting” discovery); see also Vasquez v. California Sch. of Culinary Arts, Inc. (2014) 230 Cal. App. 4th 35, 42 (holding that the “subpoenaed person bears the burden of establishing … inaccessibility” when opposing production of electronically stored information on burden grounds). 

DISCUSSION 

The Subpoena seeks documents relating to: (1) the Property from April 1, 2021 to the present, including but not limited to invoices issued by or payments received by RR Construction for work performed at the Property; (2) Plaintiff’s claim; (3) communications with Plaintiff regarding the claim or the Property; and (4) communications with Nationwide concerning the claim or the Property.  (Chow Decl., ¶ 4, Ex. B.)  The Court concludes these requests seek documents relevant to the claims and defenses in this case.   

The Complaint puts at issue Nationwide’s handling of and subsequent denial of the claim and seeks recovery for the alleged damages to the Property, which, to some extent, were purportedly repaired by RR Construction. Nationwide’s claim investigation revealed concerns about the inconsistencies regarding the circumstances and cause of the loss.  As one of the alleged contractors who remediated the damages to the Property, RR Construction may have documents or communications with Plaintiff discussing the events that gave rise to the loss, the repairs necessary to address the damages, and photos documenting the condition of the Property following the loss—documents that are highly probative to assessing Nationwide’s coverage decision.   

Further, the Court concludes RR Construction has waived any objections to the Subpoena.  Generally, “when there is a complete failure to respond to discovery,” there is waiver of all objections.  (See Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal. App. 4th 263, 272.) Third parties are not exempted from this rule and are still expected to adhere to the strict rule of timely objecting to preserve any objections or privilege.  (See Monarch Healthcare v. Superior Court (2000) 78 Cal. App. 4th 1282, 1290.)  Here, RR Construction did not only fail to timely object to the Subpoena—it neglected to respond at all.  The Subpoena demanded a compliance date of June 21, 2024, but, as of the filing of this motion, RR Construction has not produced a single document, served any sort of response to the Subpoena, or responded to any of Nationwide’s counsel’s numerous attempts to meet and confer concerning the Subpoena. Therefore, RR Construction has waived its right to object to the Subpoena on any grounds.  

CONCLUSION 

Based on the foregoing, the Court grants Defendant Nationwide Mutual Insurance Company’s motion to compel RR Construction’s production of documents in response to subpoena.   

IT IS SO ORDERED. 

 

DATED: September 23, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court