Judge Lee S. Arian, Case Number: 20STCV18249, Date: 2023-12-12 Tentative Ruling

On August 2, 2023, Plaintiff Jason Seward (“Plaintiff”) filed a complaint against Defendant Moussa Moshfegh; Shida Moshfegh; Udr, Inc. dba Vision; 3D Investments; Wilshire Crescent Heights, LLC; Wilshire Medical Group, LLC; and DOES 1 through 50, inclusive for (1) negligence/negligence per se and (2) premises liability. Plaintiff alleges that on October 28, 2021, he was struck by a vehicle driven by Defendant Moussa Moshfegh, while traversing a driveway, resulting in severe bodily injuries and other damages.

On September 12, 2023, Defendant Moussa Moshfegh and Shida Moshfegh (“Moshfegh Defendants”) filed a cross-complaint against ROES 1 through 20, inclusive for (1) negligence, (2) express indemnity, (3) implied indemnity, (4) contribution, (5) declaratory relief, and (6) duty to defend.

On September 25, 2023, Defendant Wilshire Crescent Heights, LLC and Udr, Inc. dba Vision filed a cross-complaint against Moshfegh Defendants, 3D Investments, Wilshire Medical Group, LLC, and ROES 1 to 50, inclusive for (1) express indemnification; (2) equitable indemnification; (3) contribution; (4) declaratory relief: duty to defend; and (5) declaratory relief: duty to indemnify.

On October 25, 2023, Moshfegh Defendants’ filed the instant motion to quash Plaintiff’s subpoena for production of records to Nationwide Mutual Insurance Company. On November 28, 2023, Plaintiff filed an opposition. The following day, Defendant Wilshire Crescent Heights, LLC (“Defendant Wilshire Crescent”) filed a notice of joinder to Plaintiff’s opposition. On December 5, 2023, Moshfegh Defendants’ filed a reply.

Pursuant to Code of Civil Procedure Section 1987.1, “[i]f 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, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1.)

“All records and documents regarding Policy Holder Moussa Moshfegh (DOB:1/17/1947) and Shida Moshfegh concerning Policy No. 7204J099039, with DOL: 10/28/2021 includi but not limited to: all photographs and videos (digital and color, if available) depicting an involved vehicle, the scene, and/or any injuries; recorded, transcribed, and/or written statements of any individual; collision repair estimates, records and receipts; and electroni download data regarding braking, vehicle movements, and/or airbag module data/information concerning any vehicle involved in the 10/28/2021 incident, including, b not limited to, the 2019 white Mercedes sedan. All records and documents pertaining to any other claims at any time regarding the 2019 white Mercedes sedan including but not limited to: all photographs (digital and color, if available), collision repair records and receipts, repair photographs (digital and in color, if available) and repair estimates, recor statements, transcribed statements, and written statements. The documents sought via thi subpoena exclude attorney-client communications and attorney work product.”

Moshfegh Defendants seek an order to quash Plaintiff’s subpoena for deposition and for the production of records from Nationwide Mutual Insurance Company. Moshfegh Defendants argue that (1) the subpoena is not designated with reasonable particularity; (2) the subpoena seeks grossly overbroad and irrelevant privileged information; (3) the subpoena violates Moshfegh Defendants’ right to privacy; (4) the subpoena is unduly burdensome and harassing; and (5) the subpoena is not narrowly circumscribed by the least intrusive means as required. Moshfegh Defendants also seek monetary sanctions against Plaintiff and/or his counsel of record in the amount of $1,935.00.

Alternatively, Moshfegh Defendants request that the Court (1) stay enforcement of Plaintiff’s subpoena pending the Court’s in camera inspection of the requested documents; (2) conduct an in camera inspection prior to production of any documents requested by the subpoenas to determine whether any of the requested documents are admissible; and (3) if the Court orders any documents produced pursuant to the subpoena, enter a protective order. Moshfegh Defendants seek a protective order providing that (a) confidential information not be disclosed to any person other than Plaintiff’s attorney; (b) the information is not to be used for any purpose other than prosecuting this litigation; and (c) Plaintiff be forbidden from photocopying the documents and disseminating the same.

In opposition, Plaintiff argues that the requested documents concern the subject incident and the Moshfegh Defendants’ vehicle that was involved. Also, Plaintiff argues that the subpoena requests documents that are reasonably calculated to lead to admissible evidence because they include photographs and videos of the scene, vehicles and/or injuries, written, transcribed, or recorded statements, damage estimates, repair records, and electronic data. Furthermore, Plaintiff argues that the subpoena is designated with the requisite reasonable particularity because it provides the date of loss (“DOL”), October 28, 2021, and the subject vehicle information, a white 2019 Mercedes. Plaintiff also contends that the description of documents requested is less than a quarter of a page and seeks only two separate categories. Moreover, Plaintiff argues that the subpoena does not request financial, billing, or proprietary information and specifically excludes documents protected by the attorney-client privilege and work-product doctrine. Plaintiff further asserts that the subpoena is not cumulative, and he has the right to obtain the requested documents directly from Nationwide Mutual Insurance Company. Additionally, Plaintiff contends that Moshfegh Defendants fail to make the requisite showing for a protective order. Last, Plaintiff contends that sanctions are not warranted and should be imposed against Moshfegh Defendants because this instant motion is meritless.

In reply, Moshfegh Defendants argue that Plaintiff has failed to show good cause as to why records reflecting their sensitive financial information and other insurance claims are relevant. Moshfegh Defendants further argue that there is no language in the subpoena excluding or even limiting Moshfegh Defendants’ personal financial information. Moreover, Moshfegh Defendants contend that Plaintiff’s opposition does not include any declaration setting forth good cause nor has Plaintiff shown that there was no alternative source for the requested documents. In addition, Moshfegh Defendants contend that a tripartite relationship exists between their counsel and Nationwide Mutual Insurance Company, which precludes a unilateral production of records by Nationwide Mutual Insurance Company because theoretically there could be something in the insurer’s file that is privileged. Moshfegh Defendants also assert that Plaintiff’s analogy to a medical records subpoena is misguided and a red herring because they have not voluntarily waived any privacy or privilege interests in their insurance file by virtue of being involuntarily sued. Finally, Moshfegh Defendants assert that Nationwide Mutual Insurance Company records pertaining to Moshfegh Defendants’ financial information, insurance premiums, and claims unrelated to the incident have no relevance to proving or disproving whether Mr. Moshfegh was negligent nor would this information be necessary for review by experts at trial.

The subpoena is, at best, poorly written. One could read it to be a request for all records related to the Moshfegh Defendants’ insurance policy. In that case, it is overbroad.

Instead, the Court will read it as it was likely intended: a request for all records specifically related to the October 28, 2021 incident. Those records are appropriately requested, and the Court will not quash the subpoena as to those records. (See Cal. Code Civ. Proc. 1987.1 (court may modify or direct compliance with subpoena on terms court declares)).

Beyond the production of documents responsive to that reading, the Court quashes the subpoena. Plaintiff has specifically failed to address the Moshfegh Defendants’ argument regarding the relevance of the additional request for records related to the 2019 Mercedes. Without any basis to require the moving party to provide that information, which, at least on its face (without additional information, which Plaintiff did not provide) appears to be overbroad and irrelevant, the Court quashes the subpoena as to that request.

Moreover, Plaintiff asserts that he does not seek Moshfegh Defendants’ financial billing or proprietary information, but the language used in the subpoena as currently stated does not include this limitation (as contrasted with the explicit exclusion of documents pertaining to attorney-client privilege and/or work-product doctrine). Again, the Court modifies the subpoena so that it does not deemed to request such information.

The Court finds that Plaintiff successfully opposed at least part of the instant motion such that imposition of sanctions would be unjust. Accordingly, the Court does not award sanctions against Plaintiff and his counsel of record.

Moshfegh Defendants’ motion to quash Plaintiff’s subpoena for production of records to Nationwide Mutual Insurance Company is DENIED in part. Nationwide is to produce records specifically related to the October 28, 2021 incident.

Moshfegh Defendants’ request for monetary sanctions in the amount of $1,935.00 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. Lee S. Arian

Judge of the Superior Court