Judge: Frank M. Tavelman, Case: 22BBCV00421, Date: 2022-09-02 Tentative Ruling

Case Number: 22BBCV00421    Hearing Date: September 2, 2022    Dept: A

MOTION TO COMPEL BUSINESS SUBPOENA AND SANCTIONS

ALLEGATIONS:

BMBG Investments, LLC ("BMBG") filed suit against Defendant 11 NoHo Owner, LLC ("11 NoHo") regarding allegations that Defendant, which owns property adjacent to Plaintiff's property, is trespassing on and causing damage to Plaintiff's property in the process of constructing a new building.

BMBG filed the operative First Amended Complaint (“FAC”) on August 10, 2020, alleging six causes of action: (1) Intentional Trespass; (2) Intentional Trespass of Water; (3) Negligent Trespass; (4) Negligent Trespass of Water; (5) Private Nuisance; and (6) Declaratory Relief.

11 NoHo filed the operative First Amended Cross-Complaint on December 7, 2021 against BMBG and Focus Buildings, Inc., a California Corporation (“Focus”), alleging seven causes of action: (1) Quiet Title; (2) Trespass; (3) Nuisance; (4) Declaratory Relief; (5) Express Contractual Indemnity; (6) Breach of Written Contract; and (7) Declaratory Relief.

HISTORY:

11 NoHo filed the Motion to Compel Business Subpoena on August 5, 2022; and a reply on August 25, 2022. The Court has not received any opposition.

RELIEF REQUESTED:

11 NoHo move to compel non-party Farmers Insurance to produce all documents responsive to the Deposition Subpoena for Production of Business Records, dated April 21, 2022. 11 NoHo also moves for associated sanctions against Farmers Insurance in the amount of $13,156. (Reply Decl. Sakai, ¶ 6.)

ANALYSIS:

I.          LEGAL STANDARD

Nonparty discovery is generally covered by Chapter 6 (CCP §§2020-2020.510) of the Civil Discovery Act.  CCP §2020.240 states that a deponent who disobeys a deposition subpoena may be punished for contempt commencing with CCP §2023.010, and without the necessity of a prior order or court directing witness compliance. 

A deposition subpoena may command the deponent’s attendance and testimony, the production of business records, or both. (CCP § 2020.020.) Under CCP § 2025.480(a), “[i]f a deponent fails to . . . produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP § 2025.480(a).) Such a motion must be made no later than 60 days after the completion of the record of the deposition. (CCP §2025.480(b).) A motion must also be preceded by reasonable meet and confer efforts to informally resolve the dispute. (Ibid.) Monetary sanctions pursuant to Chapter 7 (commencing with CCP §2023.010) are mandatory against a party who unsuccessfully makes or opposes a motion unless there is a finding of substantial justification or injustice from imposition of the sanction. (CCP § 2025.480(j).)

II.        MEET AND CONFER          

The Court finds that sufficient meet and confer efforts are implied through the Sakai declaration to satisfy statutory meet and confer requirements to code. (Decl. Sakai, ¶¶ 9-12.)

III.       MERITS

11 NoHo asserts that Farmers Insurance, a non-party (“Farmers”), failed to respond to a properly served subpoena for production on May 13, 2022. 11 NoHo further asserts in its Notice of Non-Opposition and Reply that Farmers partially produced documents in response to the subpoena, but only after 11 NoHo filed the moving papers for the instant motion.  11 NoHo represents that Farmers failed to produce all responsive documents and claims attorney-client privilege on some documents. Farmers has provided no justification for ignoring the timely discovery deadline, nor in requesting an extension.  The prompt and timely resolution of legal disputes become impossible if persons obligated by law to comply with discovery requests, fail, without good cause, to comply with such requests. 

As a result, 11 NoHo was forced to incur additional legal expenses, which could have been avoided had Farmers complied with the discovery request, requested a continuance to respond, or otherwise set forth good cause for its failure to comply.  Failure to respond to discovery requests is a misuse of the discovery process.  (CCP §2023.010(d)).  Such failures are subject to monetary sanctions if the requesting party seeks a motion to compel.  (CCP §2023.030(a)).  Mandatory sanctions may be avoided when the Court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  In this instance, Farmers failed to provide any justification for their actions such that the court could make a finding that the imposition of sanctions is unjust.

11 NoHo argues that Farmers has waived any objections to compliance based on attorney-client privilege, citing Catalina Island Yacht Club v. Superior Court (2015) 242 Cal. App. 4^th 1116, 1129.  While the Court understands the moving party’s position, the Court declines to find a waiver of such an important privilege as attorney-client without a subsequent hearing.  The Court acknowledges 11 NoHo’s position regarding the inapplicability of the attorney-client privilege based on Bank of America, N.A. v. Superior Court (2013) 212 Cal. App. 4^th 1076; however, without knowing more about the underlying nature of the claim, the Court is unable to determine if the information is covered by Bank of America as being a communication concerning an insured-insurer relationship.

The Court will order that Farmers provide a privilege log to the Court identifying with particularity each document that Farmers claims is protected from disclosure by privilege and provide sufficient factual information for the propounding party and the Court to evaluate whether the claim has merit.  (CCP § 2031.240(b) and (c); Catalina Island Yacht Club v. Superior Court, supra, 242 Cal. App. 4^th at 1130).

Finally, 11 NoHo asserts that Farmers’ partial compliance is inadequate as the documents provided did not include claims made by BMBG under the policy, or payments made by Farmers arising from those claims.  Farmers has provided not any response as to why the missing documents fall outside the scope of the discovery request.  Furthermore, the policy documents are redacted of significant information, for which Farmers provides no justification.  One omission that the Court does question is the basis to demand policy limits, the Court would require a further showing of relevancy to justify that request.

RULING

Farmers is ordered to provide a privilege log to the Court and to counsel for moving party identifying with particularity each document that Farmers claims is protected from disclosure by privilege and provide sufficient information for the propounding party and the court to evaluate whether the claim has merit.

Pursuant to CCP §§ 2025.480(j) and 2023.010, Farmers is ordered to pay sanctions for the preparation of the motion to compel.  Sanctions are calculated as: eight hours of drafting at a rate of $830 per hour, as well as one hour at a rate of $975 per hour for preparation and review of the initial motion; an additional one hour for court time at a rate of $830 per hour; and $61.65 for the filing fee.  Total sanctions: $8,506.65 due to 11 NoHo’s counsel within 30 calendar days.

A hearing on the privilege log will be set on a date mutually agreeable for counsel and the Court, within 45 calendar days.

IV.       CONCLUSION

The motion is granted.  Except for documents for which there is a claim of attorney-client privilege, Farmers is ordered to comply with the discovery request within 15 court days.

There being no justification for the failure to comply as to non-privileged documents.  The Court imposed sanctions on Farmers in the amount of $8,506.65 to compensate 11NoHo for its fees and costs incurred in the motion to compel.    

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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

Defendant/Cross-Complainant NoHo LLC’s Motion to Compel Business Subpoena came on regularly for hearing on September 2, 2022 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 TO COMPEL BUSINESS SUBPOENA IS GRANTED.   FARMERS HAS 15 COURT DAYS TO COMPLY.  A PRIVILEGE LOG SHALL BE PREPARED AND FILED WITH THE COURT, AND A SUBSEQUENT DISCOVERY HEARING SHALL BE SET WITHIN 45 CALENDAR DAYS.

DISCOVERY SANCTION IN THE AMOUNT OF $8,506.65 ARE ORDERED TO BE PAID TO MOVING PARTY’S COUNSEL WITHIN 30 CALENDAR DAYS.

IT IS SO ORDERED.

DATE:  September 2, 2022                           _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles