Judge Kerry Bensinger, Case 22STCV15084 2023-03-15 Tentative Ruling

On May 6, 2022, plaintiff Maria D. Garcia Martinez (“Plaintiff”) filed this action against defendants Angel Jesus Aragon (“Aragon”), Bandar Khaled Al Badawi, Omaymah El Kurdi, Bobs Towing Services And Recovery, Inc. dba Bobs Towing (“BTS”), Safeway Towing Service, Inc. (“Safeway Towing”), and Does 1 through 30, inclusive (collectively, “Defendants”) for negligence, negligence per se, vicarious liability, negligent hiring/retention, single-enterprise liability, and alter ego. In the complaint, Plaintiff alleges Aragon was driving a tow truck at freeway speeds as he merged onto the freeway when he struck Plaintiff’s vehicle, causing her serious injury and injury to multiple other people.

On November 29, 2022, BTS served responses to Plaintiff’s Form Interrogatories, Set One, wherein BTS indicated that United Financial Casualty Company (“United Financial”) was the custodian of BTS’s commercial automobile insurance policy (the “Policy”) in effect at the time of the incident.

On December 21, 2022, Plaintiff served the Deposition Subpoena for Production of Business Records (the “Subpoena”) on United Financial seeking any and all documents constituting, concerning, or referencing BTS’ Policy and Safeway Towing’s Policy.

On January 6, 2023, BTS served an objection to Plaintiff’s Subpoena on the grounds that the Subpoena (1) seeks irrelevant information, (2) invades BTS’s right to privacy, (3) is overly broad as to time and scope, (4) vague and ambiguous as to the documents sought, (5) seeks documents protected by attorney-client privilege and attorney work product doctrine, and (6) seeks documents that potentially include protected business information and trade secret information.

On January 23, 2023, BTS filed this motion to quash the Subpoena. Plaintiff filed an opposition and BTS filed a reply.

A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records. (Code Civ. Proc., § 2020.020.) The court, upon motion or the court’s own motion, “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 orders 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., § 1987.1, subd. (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 by reasonably particularizing each category of item . . .” (Code Civ. Proc., §2020.410, subd. (a).)

A service of a deposition subpoena shall be effected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition. (Code Civ. Proc., § 2020.220, subd. (a).) Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies. (Code Civ. Proc., § 2020.220, subd. (c).) A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness. (Code Civ. Proc., § 2020.240.)

Insurance Code section 791.13 provides, in part, that an insurance institution shall not disclose any personal or privileged information about an individual collected or received in connection with an insurance transaction unless the disclosure is with the written authorization of the individual or is otherwise permitted or required by law. (Ins. Code, § 791.13, subds. (a), (g).)

The court may in its discretion award the amount of the 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., § 1987.2, subd. (a).)

The Subpoena seeks documents for eight categories, which can be summarized as follows:

Categories 1, 2, 5, 6: Any and all documents which constitute or concern the issuance of the Policy, including but not limited to any and all policy applications, approvals, denials, renewals, and endorsements for policies effective at any time between November 1, 2017 to present for Bobs Towing Service and Recovery, Inc. (Policy No. 06281612-2), and the Policy for Safeway Towing Service Inc.

Categories 3, 7: Any and all documents concerning or referencing any and all claims made for coverage under the Policy, including but not limited to non-privileged communications, claims, correspondence, reports, and coverage determinations from November 1, 2017 to the present for Bobs Towing Service and Recovery, Inc., and Safeway Towing Service, Inc.

Categories 4, 8: Any and all document concerning or referencing any policy known to you and provided to BOBS TOWING SERVICE AND RECOVERY, INC. or provided to Safeway Towing Service, Inc., through a broker/insurance provider other than you from November 1, 2017 through the present.

BTS argues that the Subpoena should be quashed because it (1) seeks irrelevant information, (2) invades BTS’s right to privacy, (3) is overly broad as to time and scope, (4) vague and ambiguous as to the documents sought, (5) seeks documents protected by attorney-client privilege and attorney work product doctrine, and (6) seeks documents that potentially include protected business information and trade secret information.

BTS’s arguments lack merit. A cursory review of the Subpoena categories shows that the Subpoena is reasonably tailored to a time period of less than six years and seeks documents that do not include privileged communications. To the extent that the Subpoena seeks protected business information and trade secret information germane to United Financial, the Court is skeptical that BTS may assert on behalf of United Financial that United Financial’s trade secret information may impermissibly fall under the scope of the Subpoena. BTS’s trade secret information is not at issue.

As to BTS’s relevancy argument, the Court is not persuaded. Section 791.13, subdivision (g) of the Insurance Code[1] allows an insurance institution to disclose any personal or privileged information about an individual collected or received in connection with an insurance transaction if it is permitted by law. Further, Code of Civil Procedure section 2017.210 “creates a statutory exception that allows limited discovery of a defendant’s liability insurance coverage as a matter of right; that is to say, without the need for a threshold showing of relevancy and admissibility as is required under the general discovery statute, section 2017.010. Under section 2017.210, a party is entitled to discover the ‘existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. This discovery may include the identity of the carrier and the nature and limits of the coverage. A party may also obtain discovery as to whether that insurance carrier is disputing the agreement’s coverage of the claim involved in the action, but not as to the nature and substance of that dispute.’” (Catholic Mutual Relief Society v. Superior Court (2007) 42 Cal.4th 358, 366-67.) “As a result of the statute, a potential contractual relationship arises between the liability insurer and any third party who might be injured by its insured under the terms of coverage of the liability policy, which the common law in turn has long recognized gives the injured party a ‘discoverable interest’ in the existence and terms of the defendant's liability insurance coverage.” (Id. at p. 367.) Under this statutory framework, Plaintiff is entitled to learn whether United Financial has coverage for Defendants, what those agreements consist of, and whether United Financial disputes coverage of the claim.

Plaintiff requests that the Court impose monetary sanctions against BTS and/or their counsel of record in the amount of $2,464.00. The court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, 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., § 1987.2, subd. (a).) The Court declines to impose sanctions.

Plaintiff’s request for imposition of monetary sanctions against BTS and/or their counsel of record is denied.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff argues that the motion to quash should be denied pursuant to Insurance Code section 791.13, subdivision (h) which authorizes disclosure of records in response to a facially valid administrative or judicial order, including a search warrant or subpoena. However, subdivision (h) is inapplicable here as subdivision (h) contemplates a subpoena issued by an administrative body. (See, e.g., Connecticut Indem. Co. v. Superior Court (2000) 98 Cal..4th 807.) Nor has the Court issued any order requiring BTS to comply with Plaintiff’s Subpoena.