Judge Gail Killefer, Case Number: 24STCP00552, Date: 2024-03-29 Tentative Ruling

PROCEEDING: Petition for Protective Order and to Quash Deposition Subpoena in Action Pending Outside of California

TENTATIVE: Petitioner’s motion for a protective order is denied. Petitioner’s alternative motion to quash the subpoena is granted. Petitioner to give notice.

On February 21, 2024, American International Industries (“A-I-I” or “Petitioner”) filed a Petition for a Protective Order and to Quash Deposition Action Pending Outside of California.

This petition relates to an action filed on May 8, 2023, in the State of Washington, captioned Jack LaSalle and Diane LaSalle v. American International Industries, et al., pending in the Superior Court for the State of Washington, King County, Case No. 23-2-08165-0 SEA (“the Washington action”). The Washington action is a personal injury action related to asbestos contamination of cosmetic talc filed by Jack and Diane LaSalle (“Respondents”).

Respondents served a subpoena for personal appearance and production of documents, electronically stored, information, and things, on Brian Dror (“Dror”) on February 8, 2024. (See Declaration of David E. Ashdown ¶ 10, Ex. F filed 02/21/2024.) Mr. Dror is A-I-I’s outside accountant, whose services include consultation on talc litigation. (Id. at ¶ 9.)

On February 23, 2024, Petitioner A-I-I moved for a protective order or, in the alternative, to quash the subpoena on the basis that the Respondents failed to provide notice to the consumer pursuant to CCP § 1985.3. Respondents oppose the Motion. The matter is now before the court.

Motion for a protective order[1]

The court must restrict the frequency or extent of use of any discovery method, in this case, depositions [See CCP § 2025.420], if it determines either of the following:¿ (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.¿ (CCP § 2019.030(a).)¿ The court may make these determinations regarding depositions pursuant to a motion for a protective order by a party or other affected person.¿ (CCP § 2025.420.)¿ On such a motion, the party seeking the protective order carries the burden to show good cause for whatever order is sought.¿ (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)¿ Only if the motion shows good cause or that justice requires the exercise of discretion, may a court exercise its power to order that a deposition shall not be taken or that it may be taken only at some other time or place or in some other manner than as proposed, or that the scope of the questions be limited or controlled in certain specified manners, etc.¿ (See Beverly Hills Nat'l Bank & Trust Co. v. Superior Court (1961) 195 Cal.App.2d 861, 866.)¿ The motion must also be accompanied by a “meet and confer” declaration under CCP § 2016.040.¿ (CCP §§ 2019.030(b), 2025.420(a).)

Petitioner A-I-I seeks a protective order on the basis that the discovery sought is duplicative and that Respondents are trying to gain an unfair advantage by attempting to select Plaintiff’s 30(b)(6)(person most qualified).

Petitioners argue that the subpoena on Mr. Dror is unreasonably cumulative and duplicative, making the request unduly burdensome and oppressive. (CCP § 2910.030(a).) Petitioner asserts that Respondents have already served six sets of Request for Production of Documents on each of A-I-I’s partners in the Washington action, with each set containing 109 requests. (Ashdown Decl. Ex. B.) Respondents also served six 30(b)(6) notices of deposition on A-I-I and its five partners containing 114 categories of inquiry which correspond to over 100 requests for production of documents. (Ashdown Decl. Ex. D.)

Petitioners answered Respondents’ Request for Production of Documents and produced over 2500 pages of documents. (Ashdown Decl. Ex. C.) Deposition dates have already been provided and Mr. Dror has already been deposed as a 30(b)(6) witness on behalf of A-I-I in the Washington action. (Ashdown Decl. ¶ 7; Reply at p. 1:25-26.) Petitioners request that Mr. Dror’s deposition not take place and that all writing designated in the subpoena not be produced because the discovery requested is duplicative of the discovery issued to A-I-I and its partners in the Washington action.

Respondents believe that Mr. Dror is an officer of A-I-I’s corporate partners and has knowledge and documents pertaining to A-I-I’s products, structure, the structure of its corporate partners, decision-making process, finances, and involvement in prior talc litigation. Respondents assert that they are entitled to discovery as a matter of right. “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.” (CCP § 2017.010.) “Section 2017.010 and other statutes governing discovery ‘must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial.’ [Citation.] This means that ‘disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it.’ [Citation.]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541.)

If a party asserts a “burdensome” objection, that party bears the burden of “showing the quantum of work required” to respond to discovery and articulate that burden that is being imposed on that party. (West Pico Furniture Co. v. Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417-418.) Petitioner asserts that Respondents seek no “new” information and “cut and paste” from previous document requests and deposition notices to A-1-1 and its partners in the Washington action. However, Petitioner fails to explain why providing the same information to Respondents is burdensome in terms of time and expense or why the Petitioner cannot object to the requested discovery on an individual basis rather than object to the entire request.

In the alternative to seeking a protective order, “a party may object to a particular discovery request, placing the burden on the party seeking discovery to enforce discovery through a motion to compel.” (Fairmont Ins. Co., supra, 22 Cal.4th at p. 255.) Petitioner’s separate statement asserts that Respondents failed to utilize the least restrictive means of obtaining the information sought without identifying what those less restrictive means are and how those means would not infringe on the Respondents’ right to discovery. In other words, Petitioners fail to explain why the information sought from Mr. Dror is “obtainable from some other source that is more convenient, less burdensome, or less expensive.” (CCP § 2019. 030.) While Petitioner’s separate statement objects to each item requested on the basis that the request is duplicative, the objections fail to show that each item requested has already been produced and where each item may be found. Instead, the objections are conclusory and merely assert that the item requested is duplicative.

Accordingly, Petitioner fails to show good cause for the protective order. (CCP § 2025.420.)

On reply, Petitioner asserts that it is entitled to a protective order pursuant to CCP § 2019.030(a) and that this provision contains no requirement to show good cause for a protective order. The court is aware that section 2019.030, like section 2017.020, provide limits on the scope, extent, and frequency of discovery and allows a party to seek a protective order, but the protective order is made pursuant to a separate statutory provision, here section 2025.420, which states in relevant part:

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

In Fairmont Ins. Co. the California Supreme Court was aware of former section 2019(b)(1), the predecessor to section 2019. 030[2], and noted that the standard for granting a protective order was a showing of “good cause[3]”:

Of course, a party objecting to particular discovery requests, e.g., as unduly burdensome or oppressive, may seek a protective order. [Citations.] In such case, the burden is on the party seeking the protective order to show good cause for whatever order is sought. [Citation.]

(Id. at pp. 255.) Petitioner fails to cite any case that would permit granting a protective order without a showing of good cause. Moreover, the Editor’s note to section 2019.030 and the Legislative Counsel’s Digest to AB 3081 that amended the former section 2019(b)(1) state that the changes were not intended to substantively change the law of civil discovery.

Based on the above, the Petitioner’s request for a protective order is denied.

CCP § 1987.1 grants the trial court authority to quash a subpoena when necessary.¿ 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.”¿

Petitioner moves to quash the subpoena on the basis that A-I-I is a consumer under CCP § 1985.3 and Respondents failed to comply with the notice requirements applicable to personal records of consumers.

(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 . . . accountant . . . [.]

(2) “Consumer” means 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.

(3) “Subpoenaing party” means the person or persons causing a subpoena duces tecum to be issued or served in connection with any civil action or proceeding pursuant to this code, but shall not include the state or local agencies described in Section 7465 of the Government Code, or any entity provided for under Article VI of the California Constitution in any proceeding maintained before an adjudicative body of that entity pursuant to Chapter 4 (commencing with Section 6000) of Division 3 of the Business and Professions Code.

The parties do not dispute that if Petitioner is a consumer under section 1985.3(a)(2), then Respondents are required to provide Petitioner with a consumer privacy protection notice under section 1985.3(e) and proof of service in compliance with section 1985.3(c)(1).

Respondents assert that section 1985.3 does not apply because Petitioners are a corporate entity made up of five partnerships. Petitioners assert they are a family-run California general partnership and that each of the five partners that compromise A-I-I’s are Glamour Industries Co., SRYZ Corp., ARYZ Corp., ERX Corp., and RAZY Properties, Inc. (See Mot. at p. 1:1-13, fn. 2.) Accordingly, whether Petitioner is a “Consumer” depends on whether A-1-1 fits the definition of “partnership of five or fewer persons.” (CCP § 1985.3(a)(2).)

Petitioners point out that under CCP §§ 116.130(e) and (f), a “Person” “means an individual, corporation, partnership, limited liability partnership, limited liability company, firm, association, or other entity” whereas “Individual” “means a natural person.” Therefore, Petitioner argues that A-I-I is a partnership of five or fewer persons or corporations, thus entitled to the notice protections under section 1985.3. The court finds that if the Legislature intended to limit the protections of section 1985.3 it would have limited the definition of “partnership” to “five or fewer individuals” rather than “five or fewer persons.”

“Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.” (CCP § 1985.3(g).) “Failure to comply with this section shall be sufficient basis for the witness to refuse to produce the personal records sought by a subpoena duces tecum.” (CCP § 1985.1(k).)

Respondents assert that because Petitioners have sufficient notice of the subpoena, strict compliance with the notice requirements of section 1985.3 is not required. Respondents provide no legal or statutory support for this proposition. More importantly, case law provides differently:

Because defendants' subpoenas seek the personal information of investigated or disciplined health care professionals, without redaction, defendants were required to provide notice to these persons. Defendants did not do so. The state agencies properly refused to produce such information. (See Code Civ. Proc., § 1985.3, subd. (k).) The trial court erred by ordering its production.

(Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1038.)

In sum, Mr. Dror is excused from providing A-I-I’s personal records under section 1985.3(k). While Respondents argue that Mr. Dror may be excused from providing personal records, he is not excused from appearing at the deposition and testifying. However, if Mr. Dror is to testify, what will he testify about if not A-I-I’s personal records? Respondents’ subpoena requests document production pertaining to A-I-I’s personal records as maintained by Mr. Dror as a “witness,” and Respondents failed to show that Mr. Dror’s deposition can still proceed without Respondents compliance with section 1985.3.

Petitioner’s motion for a protective order is denied. Petitioner’s alternative motion to quash the subpoena is granted. Petitioner to give notice.

[1] Pursuant to CCP § 2016,050, the meet and confer requirement has been met. (Ashdown Decl. ¶ 11.) Petitioners have also filed a separate statement.

[2] Petitioner concedes that CCP § 2019(b)(1) is the predecessor to section 2019.030 in its reply. (See Reply at p. 3:4-5.) In discussing former section 2019(b), the appellate courts in GT, Inc. v. Superior Court (1984) 151 Cal.App.3d 748 and Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, noted that the provisions of section 2019(b)(1) required “good cause” to grant a protective order.

[3] CCP § 116.130(j) defines “Good Cause” as “circumstances sufficient to justify the requested order or other action, as determined by the judge.”