Judge: Lynette Gridiron Winston, Case: 21PSCV00428, Date: 2024-12-13 Tentative Ruling
Case Number: 21PSCV00428 Hearing Date: December 13, 2024 Dept: 6
CASE NAME: Maria Angela
Rodriguez v. Mercado Latino, Inc., et al.
Plaintiff’s
Motion to Compel Documents and Deposition Testimony from Third Party Subpoenant
Richard Hoting and for Privilege Log
TENTATIVE RULING
The Court DENIES Plaintiff’s motion to compel documents and deposition testimony from third party subpoenant Richard Hoting and for privilege log.
Defendants are ordered to give notice of this ruling and file proof of service of same within five calendar days.
BACKGROUND
This is an involuntary dissolution action. On May 21, 2021, Plaintiff Maria Angela Rodriguez (Plaintiff) filed this action against Defendants Mercado Latino, Inc. (Mercado Latino), Grosac, Inc. (Grosac), Richard Yarruths Rodriguez (Richard), Roberto Rodriguez (Roberto), Jorge Rodriguez (Jorge) (collectively, Defendants), and Does 1 through 50. On July 2, 2024, Plaintiff filed the operative Third Amended Complaint (TAC), alleging causes of action for involuntary dissolution of Mercado Latino and Grosac, breach of fiduciary duty, financial elder abuse, and accounting.
On October 10, 2024, Plaintiff moved to compel documents and deposition testimony from third party Richard Hoting. On October 31, 2024, Mercado Latino, Grosac, Richard, and Roberto opposed the motion. On October 31, 2024, Jorge joined the opposition. Plaintiff did not reply.
LEGAL STANDARD
(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.
(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.
(c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice.
(Code Civ. Proc., § 2025.480, subds. (a)-(c).)
DISCUSSION
Meet and Confer
The Court finds Plaintiff’s efforts to meet and confer sufficient. (Bickel Decl., ¶ 10, Ex. C.)
Summary of Arguments
Plaintiff moves to compel nonparty deponent Richard Hoting (Hoting) to provide responsive documents without objection on the basis of attorney-client privilege or attorney work product, that Hoting not withhold any document based on an assertion of privacy, that Hoting provide a privilege log with respect to any withheld documents, and that Hoting appear for deposition before the end of November 2024 and not assert attorney-client privilege or work product with respect to any information he obtained during his joint representation of Plaintiff and Defendants. Plaintiff contends that Hoting refused to answer questions regarding his joint representation of Plaintiff and the brother Defendants on the grounds of attorney-client privilege, which Plaintiff contends is not permissible under Evidence Code section 962 since the parties were joint clients of Hoting during the relevant period in question.
Plaintiff seeks to compel
production of documents in response to the following requests:
·
Request Numbers 1 through 6
and 14 through 16, which demand communications between Hoting and each of the
brother Defendants regarding the directors, shareholders, and management of
Mercado Latino;
·
Request Number 7, which
demands that Hoting produce any agreements between himself and Plaintiff;
·
Request Numbers 8 through 13,
which demand communications between Hoting and each of the brother Defendants
regarding the directors and shareholders of Grosac;
·
Request Numbers 17 through 19,
which demand communications between Hoting and the brother Defendants regarding
Plaintiff;
·
Request Numbers 20 through 25,
which demand documents related to compensation, reimbursed business expense and
stock certificates in Grosac and Mercado Latino that Hoting received from those
entities;
·
Request Numbers 26 and 27,
which seek copies of stock certificates in Grosac and Mercado owned by
Plaintiff; and
· Request Numbers 28 and 29, which demand all financial records of Grosac and Mercado that are in Hoting’s possession.
Plaintiff also contends that Defendants’ objection on the basis of the notice to consumer forms under Code of Civil Procedure section 1985.3 does not prevent Mr. Hoting from producing documents in response to the subpoena, and only provided a ground for Hoting to not produce documents, but Hoting never raised that as a reason for not producing documents, and instead relied on attorney-client privilege and work product. Plaintiff contends that if Hoting continues to withhold documents at his continued deposition, he must, at a minimum, substantiate any claim with a privilege log.
In opposition, Defendants contend that Plaintiff failed to serve the moving papers for this motion upon Hoting and that the motion must be denied. Defendants contend that Plaintiff never provided the individual Defendants a notice to consumer either. Defendants then argue that Plaintiff cannot waive the attorney-client privilege for the brother Defendants vis-à-vis Hoting’s representation because Hoting’s only client was the trust, not the siblings individually. Defendants contend Plaintiff retained a separate attorney at that time regarding her personal interests. Defendants contend the trust requires all the trustees to act unanimously and the trustees here do not agree, so there cannot be a waiver of the attorney-client privilege or attorney work product doctrine with respect to Hoting.
Defendants further contend that the demand for documents made upon Hoting exceeds the scope of his claimed retention. Defendants contend Hoting was retained to generally analyze the tax implications of certain hypothetical transactions and provide only an opinion that has no bearing on this case and is not likely to lead to the discovery of admissible evidence. Defendants contend the requests are overbroad, unduly burdensome, and violate the attorney-client privilege and attorney work product doctrine.
Analysis
Defendants correctly contend that there is no evidence that Plaintiff served the moving papers on Hoting. The proofs of service for the motion only indicate service on counsel for Defendants. (Motion, p. 14 of pdf.) The motion must be served on both the parties to the case and the nonparty deponent. (Code Civ. Proc., § 2025.480, subd. (c); Cal. Rules of Court, rule 3.1346 [“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record”].)
Moreover, Defendants correctly note that Plaintiff failed to timely serve a Notice to Consumer on the brother Defendants in conjunction with the deposition subpoena, the latter of which was originally served on August 7, 2024. (See Bickel Decl., Ex. A, p. 15 of pdf.) The Notices to Consumer served on October 10, 2024, are unavailing because they were served well after the original subpoena was served, and involve a different deposition set for December 12, 2024. (See Bickel Decl., Exs. A, E; Code Civ. Proc., § 1985.3, subd. (e) [notice to consumer must be served with copy of subpoena].)
The Court declines to consider the parties’ other arguments. Based on the foregoing, the Court DENIES the motion.
CONCLUSION
The Court DENIES Plaintiff’s motion to compel documents and deposition testimony from third party subpoenant Richard Hoting and for privilege log.
Defendants are ordered to give notice of this ruling and file proof of service of same within five calendar days.