Judge: Kerry Bensinger, Case: 22STCV06438, Date: 2024-07-31 Tentative Ruling

Case Number: 22STCV06438    Hearing Date: July 31, 2024    Dept: 31

Tentative Ruling

Judge Kerry Bensinger, Department 31

HEARING DATE:     July 31, 2024                                      TRIAL DATE:  January 27, 2025

CASE:                                Sunset and Vine Apartments, LLC v. Guardian Advisors LLC, et al.

CASE NO.:                      22STCV06438

MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS OF VOORHEIS & VOORHEIS INC.

MOVING PARTIES:           Defendants Urbino Construction Inc., AKBH LLC, and Intervenor Next Insurance, Inc.

RESPONDING PARTY:     No opposition

I.          INTRODUCTION

            On February 2, 2022, Plaintiff Sunset and Vine Apartments, LLC (“Plaintiff”) filed this action against Defendants Guardian Advisors, LLC, Urbino Construction, Inc., and AKBH LLC, among others, for damages arising from the removal of lateral and subjacent support sustained to Plaintiff’s property known as 5814 La Mirada Avenue, Los Angeles, CA 90038. 

On May 16, 2024, the court granted Intervenor Next Insurance, Inc.’s unopposed motion to intervene to defend Guardian Advisors, LLC, a suspended corporation, in this action.

On May 20, 2024, Plaintiff served deposition subpoena for production of business records to Voorheis & Voorheis Inc. (“Voorheis”).  Urbino Construction retained Voorheis as a its expert to aid in the pretrial process.

On June 10, 2024, Urbino Construction, Guardian Advisors, and AKBH (hereafter, “Defendants”) filed this Motion to Quash Subpoena for Records of Voorheis & Voorheis.

On July 24, 2024, counsel for Defendants filed a declaration stating that Plaintiff did not oppose the motion.

II.        LEGAL STANDARD

            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 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 such as unreasonable violations of the right of privacy.¿ (Code Civ. Proc., § 1987.1.)¿¿ 

III.       DISCUSSION

            Defendants seek an order quashing the Subpoena for the principal reason that Plaintiff has not made a written demand to exchange expert witness information/disclosure as required to by Code of Civil Procedure section 2034, et seq.  The court agrees.  The mechanism that triggers an exchange of information for expert trial witnesses is through a timely written demand made by any party after the initial trial date is set. (Code Civ. Proc., § 2034.220.) Section 2034.260 governs the specified contents that are required in the exchange of expert witness information. (Code Civ. Proc., § 2034.260.) Most importantly, under Section 2034.210, the demand requires the parties to have a mutual and simultaneous exchange of expert witness information and a lack of demand indicates that neither party would be required to comply with statutory exchange requirements. (Code Civ. Proc., § 2034.260; see Hirano v. Hirano (2007) 158 Cal.App.4th 1, 6 (Hirano).)

Obtaining pretrial discovery of information concerning each party’s expert witnesses includes making a written demand for the mutual and simultaneous exchange of expert witness information on a specified date no sooner than 20 days after service of the demand or 50 days before the initial trial date, whichever is closer to the trial date. (Hirano, 158 Cal.App.4th at pp. 5-6.) Only the party who makes a demand for exchange of expert witness information and the party upon whom the demand is made are required to comply with the statutory procedures for exchanging expert witness information.  Thus, where no demand is made by any party, no party is required to comply with the statutory exchange requirements.  (Id. at p. 6.)

Here, it is undisputed that Urbino Construction retained Voorheis to assist in the pretrial process.  (Chang Decl., ¶¶ 11-12.)  It is further undisputed that Urbino Construction has not yet designated Voorheis as its expert witness (Chang Decl., ¶ 12), nor has Plaintiff served an expert witness demand (Chang Decl., ¶ 13). Plaintiff’s Subpoena is therefore premature, and Urbino Construction may withhold the information sought by the Subpoena based on attorney-client privilege and work product protections.

Given the foregoing, and the lack of opposition, the court finds that Defendants are entitled to an order quashing the Subpoena to Voorheis.

IV.       CONCLUSION 

Accordingly, the unopposed Motion To Quash is GRANTED.   

Moving parties to give notice.

Dated:   July 31, 2024