Judge Holly J. Fujie, Case 20STCV19331 2022-12-21 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTIES: Defendants/Cross-Complainants Chronicpractor Caregiver, Inc., (“Chronicpractor”), Eric Loyola (“Loyola”), and Daniela Alexander (“Alexander”) (collectively, “Moving Defendants”)

This action arises out of a business relationship related to a marijuana dispensary. On November 10, 2022, Moving Defendants filed a motion to quash (the “Motion”) nine deposition subpoenas (collectively, the “Subpoenas”) that Plaintiff served on third-party witnesses.

Under California Code of Civil Procedure (“CCP”) section 1987.1, subdivision (a), if a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, 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 made by any person described in CCP section 1987.1, 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. (CCP § 1987.1, subd. (a).) 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 CCP section 1987.1 to quash or modify the subpoena duces tecum. (CCP § 1985.3, subd. (g).) California Rules of Court (“CRC”), rule 3.1345(a) requires that a motion to compel or to quash the production of documents or tangible things at a deposition includes a separate statement. (CRC, r. 3.1345(a)(5).)

Moving Defendants argue that the Subpoenas are defective because they identify an improper deposition officer and that the Subpoenas are overly broad.

Plaintiff served the Subpoenas on September 22, 23, and 26, 2022. (See Declaration of David E. Bower (“Bower Decl.”), Exhibits 1-9.) Three of the Subpoenas demanded that documents be produced on November 7, 2022 and the remaining six Subpoenas demanded that documents be produced on November 10, 2022. (See id.) Each Subpoena directs the addressed third-party witness to produce the identified documents to the email address of “Cory Madero of Cultiva Law, PLCC” or to the office address of Cultiva Law, PLCC (“Cultiva Law”).[1] Bower indicates that he became associated as counsel for Moving Defendants on October 31, 2022 after Loyola contacted him and informed him that Moving Defendants’ counsel John Tamborelli (“Tamborelli”) required spine surgery. (See Bower Decl. ¶ 3.) Upon associating as counsel, Bower learned of the Subpoenas and conferred with Plaintiff’s counsel regarding the propriety of the identified deposition officer. (See Bower Decl. ¶¶ 5-11, Exhibits 10-12.)

Moving Defendants argue that the Subpoenas do not comply with CCP section 2020.420. CCP section 2020.420 provides that the officer for a deposition seeking discovery only of business records for copying under this article shall be a professional photocopier registered under Chapter 20 (commencing with Section 22450) of Division 8 of the Business and Professions Code, or a person exempted from the registration requirements of that chapter under Section 22451 of the Business and Professions Code. (CCP § 2020.420.) This deposition officer shall not be financially interested in the action, or a relative or employee of any attorney of the parties. (Id.) Any objection to the qualifications of the deposition officer is waived unless made before the date of production or as soon thereafter as the ground for that objection becomes known or could be discovered by reasonable diligence. (Id.) Business and Professions Code section 22451 exempts members of the State Bar or their employees, agents, or independent contractors from the registration requirements. (Bus. & Prof. Code § 22451, subd. (b).)

Plaintiff’s opposition (the “Opposition”) argues that the identified deposition officer is exempt from registration requirements, although Madero’s role/employment with Cultiva is not clearly set forth. The Court agrees with Moving Defendants’ position that the Subpoenas do not properly identify a deposition officer. Although Evidence Code section 1560, subdivision (e) states that the subpoenaing party in a civil action may direct the witness to make the records available for inspection or copying by the party’s attorney, the attorney’s representative, or deposition officer as described in CCP section 2020.420 at the witness’ business address under reasonable conditions during normal business hours, here, plaintiff directed the deponent to deliver the documents to Plaintiff’s counsel’s employee. While an employee of counsel may be exempt from the registration requirements under Business and Professions Code section 22451, CCP section 2020.420 still prohibits a deposition officer from being an employee of a party to an action.

Plaintiff further argues that Moving Defendants’ objections are not timely. Given that the Motion involves nine Subpoenas which were served in short succession and the Motion was filed on the date of production for six of the Subpoenas, the Court declines to disregard Moving Defendants’ argument on this ground.

Under CCP section 2020.410, subdivision (a), a deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired. (CCP § 2040.410, subd. (a).)

A party may obtain discovery regarding unprivileged matters relevant to the subject matter involved in the pending action, if the matter is either itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) Nevertheless, when evidence sought to be discovered impacts on a person’s constitutional right to privacy, limited protections come into play for that person. (Id.) The privacy protections extend to both a person’s personal and financial matters. (Id.) In ruling on discovery motions, the court must balance competing rights-the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy. (Id.) 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.)

The Motion makes general arguments about the breadth of the information sought by the Subpoenas and does not include a Separate Statement as required by CRC, rule 3.1345(a)(5). Moreover, the Opposition provides evidence that Moving Defendants have provided inconsistent information about the existence of certain bank accounts and the intermingling of funds. (See Declaration of Kristin Westphal (“Westphal Decl.”) ¶¶ 3-13.) The Court therefore declines to quash the Subpoenas on substantive grounds.

the Subpoenas to properly identify a deposition officer or properly direct the witnesses to

produce relevant documents so that counsel may inspect them. In light of the foregoing, the requests for monetary sanctions in both the Motion and Opposition are DENIED.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] Cultiva Law is Plaintiff’s counsel of record. The Court hereinafter refers to Cory Madero as (“Madero”).