Judge: Laura A. Seigle, Case: BC475956, Date: 2023-05-05 Tentative Ruling

Case Number: BC475956    Hearing Date: May 5, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION TO COMPEL

            On March 21, 2023, Plaintiffs served on Defendant E.F. Brady Company, Inc. a notice to appear at trial along with a list of documents to produce at trial.  (Blumenfeld-James Decl., Ex. 1.)  On March 27, 2023, Defendant E.F. Brady Company, Inc. served objections to the notice to appear.  (Id., Ex. 2.)  On April 11, 2023, Plaintiffs filed a motion to compel the appearance of Defendant at trial and the production of the documents pursuant to the notice to appear.

A.        Notice to Attend

            Plaintiffs argue they can serve a notice to attend trial on Defendant pursuant to Code of Civil Procedure section 1987, subdivision (b).  (Motion at p. 2.)  Defendant objected it has no employees and is not obligated under section 1987 to produce a custodian of records at trial.  (Blumenfeld-James Decl., Ex. 2 at p. 2; Opposition at p. 3.)  Defendant argues it has been a wound-up corporation for over ten years.  (Opposition at p. 3.)

            Section 1987, subdivision (b) allows service of a notice requesting the attendance of a party or “anyone who is an officer, director, or managing agent of any such party.”  “A ‘managing agent’ includes only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.”  (Target National Bank v. Rocha (2013) 216 Cal.App.4th 1, 9 n.1.)  A “designated agent” or “custodian of records” is not the proper subject of a notice to attend.  (Id. at p. 9.) 

            Here, the notice to attend did not identify any officer, director, or managing agent of Defendant, and Plaintiffs have not shown that Defendant has any officer, director, or managing agent to send to attend the trial.  Plaintiffs state that Warren Bozzo and Vincent Lombardo are representatives of Defendant and the court can order them to attend trial.  (Motion at p. 2; Reply at p. 2.)  But the notice to attend did not identify them as the witnesses whose attendance was being sought.  And Plaintiffs offer no evidence that Bozzo and Lombardo are officers, directors, or managing agents of Defendant whose attendance can be the subject of a notice to attend.

            The motion to compel the attendance of a custodian of records, Warren Bozzo, or Vincent Lombardo is denied.

B.        Notice to Produce Documents

            Plaintiffs argue they can require the production at trial of the 22 categories of documents listed in the notice pursuant to Code of Civil Procedure section 1987, subdivision (c).  Section 1987, subdivision (c) requires the notice “state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control.” 

            Defendant objected that the notice does not identify “exact materials.”  (Blumenfeld-James Decl., Ex. 2 at p. 2; Opposition at p. 3.)  Plaintiffs do not address this defect.  Defendant is correct that the 22 categories listed in the notice do not seek exact materials.  Rather they are framed as document requests seeking very broad categories of documents.  For example, the first request seeks “All documents pertaining to YOUR work at Park Place in the 1970s,” and defines “YOUR” very broadly.  (Blumenfeld-James Decl., Ex. 1 at p. 1.)  The definition would require the production of not just Defendant’s work files, but also all of its partners’ and agents’ work files, concerning Park Place in the 1970s.  The fourth request seeks “All documents pertaining to YOUR financial condition” not limited by time, and the fifth category seeks all documents about profits from certain work covering forty years.  These requests would require the production of a tremendous amount of documents (assuming the documents still existed).  Even as document requests, they would be objectionable as vague and overbroad.  All of the 22 categories are defective in failing to identify exact materials.

            In addition, request Nos. 6-19 and 21-22 seek broad categories of financial documents for the last ten years.  Defendant states it has been wound-up since February 26, 2008 and therefore no such documents exist.  Plaintiffs do not dispute that Defendant has been wound up for fifteen years.

            The time for serving requests for production of documents was during discovery.  Discovery is now closed.  A notice to attend under section 1987, subdivision (c) is not a substitute for requests for production of documents.

            The motion is DENIED.

            The moving party is to give notice.