Judge Jill Feeney, Case 21STCV29944 2023-02-24 Tentative Ruling

Defendant moves to quash Plaintiff’s subpoena served on Porsche Beverly Hills (“Porsche”) on the grounds that the records from Porsche are irrelevant, the subpoena is overbroad, and violates Defendant’s privacy rights. Defendant also moves for a protective order to protect his privacy.

Plaintiff argues that the motion to quash should be denied because it is not timely. Additionally, Defendant failed to meet and confer before filing this motion, the subpoena does not violate Defendant’s privacy rights, and Defendant served late objections. Plaintiff has already offered to limit the scope of the subpoena to repair records pertaining to the crash.

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f 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.”¿

Code Civ. Proc., section 1985.3 provides that a party whose records are being sought by a subpoena duces tecum must serve notice of the motion to quash at least five days before the production date. However, the court retains jurisdiction to hear a motion to quash even if it is brought after the production date. (Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1312.)

[E]ven when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a careful balancing of the compelling public need for discovery against the fundamental right of privacy. . . . [I]f an intrusion on the right of privacy is deemed necessary under the circumstances of a particular case, any such intrusion should be the minimum intrusion necessary to achieve its objective . . . [meaning] the least intrusive means to satisfy the interest. Mere convenience of means or cost will not satisfy that test for that would make expediency and not the compelling interest the overriding value. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1854-1855 [internal quotes and citations omitted].)

When evaluating invasions of the right to privacy in discovery, the party asserting a privacy right must establish “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 26 Cal.Rptr.2d 834, 865.) A responding party may prevail by negating any of these three elements “or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.” (Id.) “[T]he party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 533.) A court then balances these competing considerations. (Id.) As guidance in balancing these competing considerations, it should be noted, “[o]nly obvious invasions of interest fundamental to personal autonomy must be supported by a compelling interest.” (Id.) When lesser interests are at stake, “the strength of the countervailing interest sufficient to warrant disclosure of private information var[ies] according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Id.)

California Code of Civil Procedure section 1987.2 provides that “the court may in its discretion award the amount of reasonable expenses incurred in making or opposing [a motion to quash], including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc. section 1987.2(a).)

Defendant’s counsel testifies that Defendant’s discovery responses show that his vehicle was repaired at Matrix Collision Repair in Los Angeles with parts from Keyes Woodland Hills Porsche. (Kandarian-Stein Decl., ¶¶3-4.) On December 8, 2022, Plaintiff issued a subpoena to Porsche Beverly Hills requesting the following:

“Any and all records including but not limited to reports, repair reports, estimates, repair estimates, notes, repair logs, receipts, invoices, photographs, video, and any other documents regarding vehicle 2015 Porsche Macan (Black), Vin: WP1AB2A50FLB52905, License Plate: 7EFJ634. Need records from 1/1/2015 to present.”

(Kandarian-Stein Decl., ¶5; Motion, Exh. C.) Defendant objected to the subpoena on January 16, 2023. (Kandarian-Stein Decl., ¶¶7-8.) Despite Plaintiff’s offer to limit the scope of the subpoena, Defendant argues that he already produced all documents pertaining to service and repair estimates from the accident. (Id.) Defendant’s counsel alleges there is no evidence that Plaintiff’s vehicle was ever repaired at Porsche Beverly Hills other than one vehicle inspection in September 2022. (Id., ¶9.) Defendant also argues prior service or repairs are not relevant to the accident. (Id., ¶8.)

Plaintiff argues in opposition that her counsel offered to limit the subpoena to records after August 21, 2019 relating to the crash. Plaintiff’s counsel testifies that prior to filing this motion, Defendant failed to meet and confer with Plaintiff’s counsel in violation of the Court’s March 7, 2022 order requiring the parties to participate in two meet and confer conferences prior to bringing discovery motions. (Hennessey Decl., ¶6.) Plaintiff’s counsel attempted to meet and confer with Defendant repeatedly after January 16, 2023 and received no response until after Defendant filed the instant motion. (Id., ¶¶7a-l.) Porsche also represented to Plaintiff that it possessed post-incident records. (Id., ¶7m; Exh. M.)

Defendant’s repair records related to the subject collision are discoverable because they are related to the subject matter of this action. Defendant fails to cite legal authority stating his vehicle repair records are privileged or are otherwise protected. With respect to Defendant’s concerns about the scope of the subpoena, Plaintiff has already agreed to limit the scope of the subpoena to records relating to the collision. Although Defendant argues that Porsche is not in possession of any post-incident records, it appears Porsche informed Plaintiff’s counsel that it was in possession of such documents. Because Plaintiff has already agreed to limit the scope of the subpoena and that Porsche is in possession of discoverable documents, Defendant’s motion to quash is denied.

With respect to sanctions, a court may “in its discretion award the amount of reasonable expenses incurred in making or opposing [a motion to quash], including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc. section 1987.2(a).) Here, the Court notes that Defendant failed to make any effort to meet and confer prior to filing this motion in violation of the Court’s March 7, 2022 order. The parties should have been able to resolve this dispute without court intervention. Plaintiff was willing to limit the scope of the subpoena and would have done so if the parties met and conferred. Therefore, the Court finds that Defendant did not make this motion with substantial justification. Plaintiff’s request for sanctions for eight hours of attorney time is excessive. The Court awards $1,660 in sanctions for four hours of attorney time at a rate of $440 per hour and filing fees.