Judge: Frank M. Tavelman, Case: 21STCV23285, Date: 2023-02-17 Tentative Ruling

Case Number: 21STCV23285    Hearing Date: February 17, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO QUASH DEPOSITION SUBPOENA

ALLEGATIONS: 

Carmen Calusian, Calvin Tahmasebi, and Kevin Tamhasebi (collectively “Plaintiffs”) filed this action on May 21, 2022 against Gohar Karen Amirkhanyan (“Amirkhanyan”) and Alpine Meadows Homeowners Association aka Alpine Meadows HOA (“HOA”). The action arises from a fire in a Amirkhanyan’s townhouse which Plaintiffs rented.  

HISTORY: 

Amirkhanyan filed the motion to quash subpoena on January 12, 2023. Plaintiffs filed their opposition on February 6, 2023. Amirkhanyan filed their reply on February 9, 2023.

RELIEF REQUESTED:

Amirkhanyan requests the court quash Plaintiffs’ subpoena for production of records directed to Allstate Insurance Company (“Allstate”). The Court notes that Plaintiffs’ subpoena also requests the deposition of a member of Allstate which Amirkhanyan does not address.

ANALYSIS: 

I.                    LEGAL STANDARD 

Code of Civil Procedure § 1987.1 grants the trial court authority to quash a subpoena.  Section 1987.1 states, “If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), 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 those 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.”   

II.                 MERITS

Privileges

Amirkhanyan argues that Plaintiffs’ subpoena requesting documents from Allstate should be quashed on grounds that it requests documents which are subject to protection under the work product doctrine, attorney-client privilege, and the insurance code. Amirkhanyan does not argue which of the documents are protected by a specific doctrine, instead objecting to each of the requests on the grounds that they are privileged by each doctrine. Amirkhanyan’s objections, contained in her separate statement, contain no substantive argument as to how each document violates the cited doctrine. As the moving party, Amirkhanyan bears the burden of establishing preliminary facts necessary to the exercise of the privilege. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725.) 

Firstly, Amirkhanyan argues that each of the documents requested are protected as attorney work product. Attorney work product is governed by C.C.P. § 2018.030 which provides:

“(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.”

The statute above divides attorney work product privilege into two distinct categories. The first, under C.C.P. § 2018.030(a), provides absolute privilege for documents prepared directly by an attorney in preparation for litigation. The second, under C.C.P. § 2018.030(b), provides conditional privilege for any other attorney work product so long as denial would not unfairly prejudice the party seeking discovery. This qualified privilege applies to all written materials and oral information not reflecting the attorney’s legal thoughts. (Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 468.)

Here, Amirkhanyan states that the requested documents contain “thoughts, impressions, and evaluations performed by a part of Defendant’s defense team, i.e., Allstate.” (Motion p. 5.) Amirkhanyan clarifies in the reply that they are asserting that all the requested documents fall under the absolute privilege of C.C.P. § 2018.030(a). Amirkhanyan reasons that because the statute broadly defines “writing” to include any recorded information and because Plaintiffs request recorded information from Allstate, that the absolute privilege applies. However, later in their reply Amirkhanyan argues that the information sought are the opinions of experts entitled to the qualified work-product protection. Amirkhanyan never specifically addresses which privilege applies to which request.   

The Court disagrees with Amirkhanyan’s position that the statute concerning the absolute privilege applies so broadly. Amirkhanyan’s reading of the statute would provide absolute privilege to all documents prepared by any insurance company, however, such a broad view is not consistent with CCP § 2018.030(a). Amirkhanyan has not demonstrated that any of the requested documents contain the impressions, conclusions, opinions, or legal research of an attorney. Amirkhanyan cites to no legal authority which indicates that the work product of an insurance agent falls under the absolute privilege provided by C.C.P. § 2018.030(a).

It may be that the documents which Plaintiff seeks are privileged under C.C.P. § 2018.030(b), but Amirkhanyan makes no substantive argument with respect to this. Further, the Court is uncertain as to which documents this privilege would be asserted because Amirkhanyan has not provided a privilege log.

Secondly, Amirkhanyan argues that the requested documents are protected under the attorney-client privilege. The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 7344.)  Here, Amirkhanyan has not identified which, if any, of the documents contain a confidential communication between attorney and client. Plaintiffs in their opposition speculate as to which documents these might be, namely those specifically requesting investigative reports and documents of tests done at the location. (Oppo. p. 6.) However, Amirkhanyan’s reply provides no further guidance. Further, the case which Amirkhanyan cites provides little guidance on this matter. Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424 dealt with requests for a witness statement made to an insurance agent for the sole purpose of defending any future claims. Amirkhanyan has made no representation that the documents requested here were prepared for this purpose.

Lastly, Amirkhanyan states that all the documents are privileged under the Insurance Code. Plaintiffs in opposition argue that Amirkhanyan does not point to any specific provision of the insurance code. Amirkhanyan’s objections do contain references to Insurance Code §791.13, which is presumably the basis for their assertion of the privilege. It is true that this section prohibits an insurer from disclosing personal or privileged information, however it is also true that the code allows for disclosure to a person other than an insurance institution, agent, or insurance-support organization, provided the disclosure was reasonably necessary or if the disclosure was pursuant to a facially valid judicial order. (Ins. Code §§ 791.13(b) &(h).) Amirkhanyan provides no argument as to why the disclosure would not be reasonably necessary or why the subpoena served upon it is facially invalid. As such, the Court does not find that the documents are privileged under the Insurance Code.

The Court finds that Amirkhanyan, in their initial briefing, has failed their burden to establish preliminary facts necessary to the exercise of these privileges. The Court finds that without further briefing, it is unable to reach a determination as to which, if any, documents that Plaintiffs request are subject to any of the asserted privileges.

Overbroad

Amirkhanyan argues that the requests for documents by Plaintiff is too broad. Amirkhanyan cites Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, where the court determined that a request that an investigator produce “all correspondence, records, and documents” between himself and an insurance company over a period of two years was overly broad Amirkhanyan also cites Flora Crane Service, Inc. v. Superior Court (1965) 234 Cal.App.2d 767, where the court found an “omnibus” subpoena duces tecum to be invalid as it requests all documents relate to the formation and conduct of an entire company. Plaintiff does not address this argument in the opposition.

The Court finds that Plaintiff’s request are not overbroad and do not constitute an “omnibus” description of the documents to be produced. Plaintiffs certainly use the phrase “all documents” but they do not simply request all the documents which Allstate has that relate to the fire. Rather, Plaintiff requests specific types of documents and the identifies the subject matter they relate to, i.e., all documents relating to smoke control systems at the residence at the time of loss. The purpose of this limitation on overboard description is to ensure that the person being subpoenaed is made aware with specificity of the documents to be produced. (Pacific Auto, supra, 273 Cal. App. 2d at 68.) The Court does not find that Plaintiffs’ requests are so broad to as to prevent Allstate from ascertaining which documents it must produce.

Discovery of Financial Position

Amirkhanyan argues that the subpoena should be quashed because it “conceivably seeks” pretrial disclosure of her financial condition. It is unclear to the Court how the Plaintiffs’ request for documents from Allstate could be construed as requesting disclosure of Amirkhanyan’s financial condition. Further, Amirkhanyan makes no effort to explain how this is the case.  

Sanctions

The Court notes that C.C.P. § 2023.030 permits the Court to impose monetary sanctions on any party who misuses the discovery process. C.C.P. § 2023.010(e) states that it is a misuse of the discovery process to make, without substantial justification, an unmeritorious objection to discovery. While it may be that Amirkhanyan has submitted meritorious objections in the motion, the Court finds it unlikely that all of Plaintiffs’ requests are objectionable under each privilege asserted. Amirkhanyan’s repetition of the same basis for objection in her separate statement does not appear to the Court as a substantial justification.   Nevertheless, the Court will presume the objections are made in good faith at this time.

III.              CONCLUSION

The Court finds that Amirkhanyan’s assertion of privilege may have merit but that the briefing provided was inadequate to make a determination. As such, the Court orders the motion continued Amirkhanyan shall provide a privilege log setting forth the document, a brief summary of what the document contains that does not violate a privilege, and the basis for the objection ALL documents to which an objection has been made shall be included in the privilege log.   Amirkhanyan shall provide the privilege log to Plaintiff and a copy filed with the Court no later than March 2, 2023 by 5:00 p.m.  Any supplemental briefing shall simultaneous and due no later than March 7, 2023 at 5:00 p.m.

This matter will be continued to March 10, 2023 at 9:00 a.m. 

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Gohar Karen Amirkhanyan’s Motion to Quash Deposition Subpoena came on regularly for hearing on February 10, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION IS CONTINUED TO MARCH 10, 2023 AT 9:00 A.M.

AMIRKHANYAN IS ORDERED TO PROVIDE A PRIVLEDGE LOG AS TO ALL DOCUMENTS WHICH A PRIVILEGE IS CLAIMED.   

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF IS ORDERED TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  February 17, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles