Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This matter arises out of a pedestrian-vehicle accident that occurred on April 7, 2023 at or near the intersection of 23rd Street and Hill Street in Santa Monica.  Plaintiffs are Martha Garcia and Marcela Garcia who were struck by a vehicle driven by Defendant Marjorie Hall.  

Plaintiffs have also sued the Defendants the City of Santa Monica (the “City”) and the County of Los Angeles (the “County”).  As to these public entities, Plaintiffs allege they allowed a dangerous condition on public property including defective design of the intersection; defective crossings at the intersection; inadequate sight distance and sight line obstructions; inadequate time provided for pedestrians to safely cross; inadequate crosswalk marks; defective setbacks; improper or ineffective curb markings; defective striping; defective intersection control; insufficient lighting at the crosswalk and intersection; and inadequate or missing signage.  

Plaintiffs claim these public entities had been aware of the high number of crashes occurring at 23rd Street and Hill Street, with the intersection being identified as one of the top highest crash locations among unsignalized intersections in the City of Santa Monica.  Notwithstanding, the City and County purportedly repeatedly failed to implement any safety improvements or otherwise correct, remedy or address the dangerous nature of the intersection.   

The operative complaint alleges claims for (1) negligence against Hall; and (2) dangerous condition of public property against the City and County.   

Plaintiffs issued a deposition subpoena for production of business records (“Subpoena”) to KOA Corporation, which provided civil and traffic engineering design services for the City.  The Subpoena seeks 14 categories of documents, including all documents prepared by KOA Corporation or in KOA Corporation’s possession, custody or control that relate to the intersection of 23rd Street and Hill Street.    

This hearing is on the City’s motion to quash the Subpoena.  The City argues that the Subpoena is overbroad and unlimited as to time and scope.  Additionally, the City argues that the Subpoena seeks documents that cannot be subject to discovery pursuant to 23 U.S.C. § 148.  The City also argues that Plaintiffs served the Subpoena without a Notice to Consumer to the City and accordingly the Subpoena is defective.  Finally, the City argues the Subpoena is invalid because there is no affidavit accompanying the Subpoena that shows good cause for production of the records sought, as required by Code Civ. Proc. §1985. 

MEET AND CONFER 

A¿motion¿to¿quash¿under¿Section¿1987.1¿does not require a party to make reasonable or good faith efforts to¿meet¿and¿confer.  Accordingly, Plaintiff’s claim that the City did not meet and confer in good faith is not relevant.     

LEGAL STANDARD 

If a subpoena requires the production of documents, the court may¿quash¿the subpoena entirely or modify it. (Code Civ. Proc., §¿1987.1, subd. (a).)  Additionally, courts “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.” (Cal. Code Civ. Proc., § 1987.1, subd. (a).) 

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.¿(Gonzalez v. Superior Court¿(1995) 33 Cal.App.4th 1539, 1546.)  Generally, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence.¿(Code Civ. Proc., § 2017.010;¿Schnabel v. Superior Court¿(1993) 5 Cal.4th 704, 711.) 

“To meet this [test], a party seeking to compel [the] production of records . . . must articulate specific facts justifying the discovery sought; it may not rely on mere generalities.” (Board of Registered Nursing v. Superior Court¿(2021) 59 Cal.App.5th 1011, 1039; see¿Johnson v. Superior Court¿(1968) 258 Cal.App.2d 829, 837¿(finding that a subpoena was insufficient” to compel production because it was “based wholly on the [party’s] alleged information and belief without any statement of supporting facts”).) 

In ruling on a¿motion¿to quash, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a).) 

DISCUSSION 

The City argues that the¿Subpoena¿is invalid because the affidavit accompanying it did not show good cause as required by¿§ 1985(b).  However, that provision deals with trial subpoenas and although the general provisions of the Code of Civil Procedure dealing with the issuance of subpoenas apply to deposition and trial subpoenas, they do so only to the extent that those provisions are not modified by provisions in the Discovery Act governing nonparty discovery.  (Terry v. SLICO¿(2009) 175 Cal.App.4th 352, 356.)  There is no requirement that an affidavit of good cause be served with a business records deposition subpoena.  (Id. at 357.)¿ “A deposition subpoena under¿subdivision (a)¿need not be accompanied by an affidavit or declaration showing good cause for the production of documents and things designated.”  (Code Civ. Proc., § 2025.510(c).)  

The City also argues that the Subpoena is defective because it is not accompanied by a notice to consumer as required by § 1985.3(e).  Section 1985.3(e) states “[e]very copy of the subpoena duces tecum and affidavit, if any, served on a consumer or his or her attorney in accordance with subdivision (b) shall be accompanied by a notice, in a typeface designed to call attention to the notice, indicating that (1) records about the consumer are being sought from the witness named on the subpoena…”.  But as defined in § 1985.3(a)(2), s “consumer” does not include the city.  “Consumer” is defined as “any individual, partnership of five or fewer persons, association, or trust which has transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary.”  (Code Civ. Proc., § 1985.3(a)(2).)  The City is none of these things.   

Further, notice to consumer requirement in § 1985.3 applies to a subpoena for “personal records”.  Here, the records sought from KOA Corporation do not fit within the definition of “personal records.”  Under § 1985.3(a)(1), personal records means “the original, any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any ‘witness’ which is a physician, dentist, ophthalmologist, optometrist, chiropractor, physical therapist, acupuncturist, podiatrist, veterinarian, veterinary hospital, veterinary clinic, pharmacist, pharmacy, hospital, medical center, clinic, radiology or MRI center, clinical or diagnostic laboratory, state or national bank, state or federal association (as defined in¿Section 5102 of the Financial Code), state or federal credit union, trust company, anyone authorized by this state to make or arrange loans that are secured by real property, security brokerage firm, insurance company, title insurance company, underwritten title company, escrow agent licensed pursuant to Division 6 (commencing with¿Section 17000) of the Financial Code¿or exempt from licensure pursuant to¿Section 17006 of the Financial Code, attorney, accountant, institution of the Farm Credit System, as specified in¿Section 2002 of Title 12 of the United States Code, or telephone corporation which is a public utility, as defined in¿Section 216 of the Public Utilities Code, or psychotherapist, as defined in¿Section 1010 of the Evidence Code, or a private or public preschool, elementary school, secondary school, or postsecondary school as described in¿Section 76244 of the Education Code.” 

Additionally, the City argues that the Subpoena is without time limitations, and is therefore overbroad, unduly burdensome, and oppressive.  But according to the City, the parties agreed to a time limit of 2010.  Accordingly, as the absence of a time limitation is the City’s only basis for arguing that the Subpoena is overbroad, unduly burdensome, and oppressive, the Court overrules these objections.  In any event, an objection that a request is unduly burdensome and oppressive must be justified by showing specifically what is required for the production and the time involved. (Mead Reinsurance Co. v. Sup. Ct. (1986) 188 Cal.App.3d 313, 318.)  Here, the City has not identified the time it would take to gather and produce the documents.  Notably, the party to whom the Subpoena is directed (KOA) has made no objection at all.  

Finally, the City argues that the Subpoena seeks documents that cannot be subject to discovery pursuant to 23 U.S.C. § 148.  Section 148(h)(4) provides that “reports, surveys, schedules, lists, or data compiled or collected for any purpose relating to this section, shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location identified or addressed in the reports, surveys, schedules, lists, or other data.”  Section 148 applies to reports required of the State (defined as each of the 50 states), prepared by state agencies (i.e., Caltrans) and submitted to the FHWA.  (23 U.S.C. § 148(h)(4).) Subsection (h)(1) states, “A State shall submit to the Secretary a report…” and goes on to describe the requirements of the report.  Subsection (h)(4) contains the language relied upon by Defendant, regarding discovery and admission of reports, surveys and information compiled by the State.   

  The privilege the City is perhaps intending to rely on is derived from 23 U.S.C. § 407, which provides that certain documents are protected from discovery and admission into evidence “in any action for damages arising from any occurrence” at the location addressed in the documents if those reports or other documents were “compiled or collected” pursuant to sections 130, 144, and 148—section 148 being the Highway Safety Improvement Program (HSIP).  

The privilege is narrow.  Department of Transportation v. Superior Court (1996) 47 Cal.App.4th 852 is instructive as to the scope of the privilege and the burden on the claimant to establish its existence. In that case, the Department of Transportation (Caltrans) claimed that several categories of information were protected from disclosure by 23 USC § 407 (previously § 409). The court in Dept of Transportation confirmed that this section applies in “narrowly defined circumstances,” and the party asserting the privilege carries the burden of demonstrating the information at issue falls within the scope of the federal privilege. (47 Cal.App.4th at 854). The court found that Caltrans failed to show that traffic collision reports, data from a database, traffic investigation reports, project and safety reports, and traffic volume summaries were covered under the privilege because it did not show that the information at issue was compiled or collected pursuant to section 152 (now combined with § 148). (Id. at 856-858.) Here, the City has not shown any of the elements.  

The City has failed to provide any evidence to establish the existence of the federal privilege.  The preliminary facts essential to privilege as asserted by the City are: (1) there is a report, survey, schedule, list or data (2) that relates to the intersection of 23rd Street and Hill Street, *3) which was compiled or collected pursuant to the HSIP. The City has been unable to identify any current or planned HSIP project pertaining to or encompassing the intersection of 23rd Street and Hill Street. If there is no HSIP project that the documents have been compiled and collected for, the documents are not protected by this privilege.  

Plaintiffs also contend publicly available information negates the City’s claim.  As Plaintiffs have been unable to obtain any information from the City about the existence of a HSIP application or project that includes the subject intersection, Plaintiffs’ counsel performed its own searches of information available from Caltrans. Through its public website, Caltrans provides a list of all HSIP projects within California approved from 2016 to present. Utilizing the complete project status list from 2016 to present from Caltrans, Plaintiffs could not identify any project of the City on the HSIP project list. The HSIP project list contained over 2,100 entries reflecting HSIP projects active or completed since 2016, but there were none for the City.  The City does not dispute that the project relating to the subject intersection is not on the HSIP project list.  Accordingly, because the City has failed to substantiate its claim of privilege, the Court concludes the requested documents are not privileged.   

CONCLUSION 

Based on the foregoing, the Court DENIES the City’s motion to quash the subpoena to KOA Corporation.   

 

IT IS SO ORDERED. 

 

DATED: December 20, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court