Judge: Holly J. Fujie, Case: BC512275, Date: 2022-12-14 Tentative Ruling

Case Number: BC512275    Hearing Date: December 14, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

            This order concerns: (1) a motion to quash deposition subpoena (the “MTQ”); and (2) a motion to compel deposition (the “MTC”).

MOVING PARTIES: (1) Nonparty Edmundo Rosenberg (“Edmundo”); and (2) Defendant Sheryl Rosenberg (“Defendant” or “Sheryl”)[1]

RESPONDING PARTIES: (1) Defendant; and (2) Edmundo

            The Court has considered the moving, opposition and reply papers.

BACKGROUND      

This action arises out of a family dispute over the management and control of SD Sheryl Brigette, LLC (the “LLC”).  The currently operative third amended complaint (the “TAC”) alleges: (1) declaratory relief; (2) breach of fiduciary duty (individual); (3) breach of fiduciary duty (derivative); (4) accounting and constructive trust; and (5) judicial expulsion. 

On November 16, 2022, Edmundo filed the MTQ, which seeks to quash the deposition subpoena issued by Defendant.  The MTQ alternatively requests a protective order. On November 30, 2022, Defendant filed the MTC to compel Edmundo’s deposition.  The MTQ and MTC both concern a deposition subpoena served on Edmundo by Defendant on November 1, 2022 for a November 15, 2022 deposition.

DISCUSSION

Under California Code of Civil Procedure (“CCP”) section 2017.010, generally, any party may obtain discovery regarding any relevant matter that is not privileged.  Discovery is relevant if it is itself admissible in evidence or if it appears reasonably calculated to lead to the discovery of admissible evidence.  (CCP § 2017.010.)  Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.  (Id.)

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).)  CCP section 1987.2 allows a court to award the amount of reasonable attorney’s fees incurred in making the motion under section 1987 or 1987.1 if the court determines the motion was made or opposed in bad faith or without substantial justification.  As between parties to litigation and nonparties, the burden of discovery should be placed on the latter only if the former do not possess the material sought to be discovered.  (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 225.)  An exception to this may exist where a showing is made the material obtained from the party is unreliable and may be subject to impeachment by material in possession of the nonparty.  (Id.)

The subpoena served on Edmundo seeks his oral testimony and requests for production (“RFPs”) of 20 categories of documents.  (See Declaration of Caroline C. Gill (“Gill Decl.”) ¶ 2, Exhibit A.) 

Edmundo argues that the document requests enumerated in the Subpoena are overbroad, overly burdensome on a nonparty witness, and seek privileged information.  Edmundo also objects to Defendant’s counsels’ presence at and participation in the deposition because of their previous representation of Edmundo and his brother Benjamin Rosenberg.  (See Declaration of Edmundo Rosenberg (“Edmundo Decl.”) ¶ 5.) 

Defendant argues that the document requests are proper and appropriately calculated to obtain relevant information because Edmundo is a percipient witness who has personal knowledge of the LLC’s formation and who has previously supported Defendant’s position and provided testimony that Defendant was intended to be in charge of the LLC.  (See Declaration of Sheryl Rosenberg (“Sheryl Decl.”) ¶¶ 7, 11, 13, 14-15; Declaration of Gary J. Lorch (“Lorch Decl.”) ¶ 3, Exhibit A.)  Defendant further argues that Edmundo has not adequately established that there is a conflict of interest between her counsel and Edmundo that forms a basis to limit their involvement with his deposition.

Upon reviewing the papers submitted in both the MTQ and MTC, the Court finds that certain of the deposition requests are overly broad and/or seek privileged material.  RFP 1 is not particularized and seeks all documents evidencing communications between Edmundo and Plaintiff between 2011 and the present.  RFPs 2-3, 6-7, 9-10, and 16 seek attorney communications.  The Court finds that the remaining RFPs are not facially improper and seek information which may be helpful to Defendant’s defense and/or lead to admissible evidence.  Edmundo is not precluded from raising further objections to the extent that the RFPs concern privileged documents.  With respect to the MTC, Plaintiff is not precluded from filing a further motion to compel should Edmundo’s responses or objections be inadequate or improper.  The Court further finds that Edmundo has not sufficiently demonstrated that there is a conflict of interest that requires Defendant’s counsel to refrain from participating in the deposition.

In light of the foregoing, the Court GRANTS the MTQ and MTC in part.  Defendant and Edmundo are to schedule a new deposition date within 20 days of this order. 

Moving parties are ordered to give notice of this ruling.

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.

    Dated this 14th day of December 2022