Judge: Mark A. Young, Case: 19SMCV00289, Date: 2022-09-15 Tentative Ruling
Case Number: 19SMCV00289 Hearing Date: September 15, 2022 Dept: M
CASE NAME: Saks, et
al., v. Pink, et al.
CASE NO.: 19SMCV00289
MOTION: Motion to Quash Subpoena
for Production of Documents
Motion
for Leave to Amend
HEARING DATE: 9/15/2022
BACKGROUND
This hearing concerns
two motions. On August 23, 2022, Plaintiffs filed a motion for leave to amend the
Second Amended Complaint (SAC). On August 31, 2022, Defendants filed a motion
to quash Plaintiff’s deposition subpoenas for Adams Stirling PLC and Troy
Kennedy, or in the alternative, for a protective order. Both motions are
opposed.
Legal
Standard
Motion for Leave to Amend
If a party
wishes to amend a pleading after an answer has been filed, or after a demurrer
has been filed and after the hearing on the demurrer, or if he or she has
already amended the pleading as a matter of course, the party must obtain permission
from the court before amendment. (CCP §§ 473(a)(1), 576.)
Motions
for leave to amend the pleadings are directed to the sound discretion of the
court. “The court may, in furtherance of justice, and on any terms as may be
proper, allow a party to amend any pleading . . ..” (CCP § 473(a)(1); see CCP §
576.) Policy favors liberally granting leave to amend so that all disputed
matters between the parties may be resolved. (See Howard v. County of San Diego (2010) 184 Cal.App.4th 1422,
1428.) Absent prejudice to the adverse party, the court may permit amendments
to the complaint “at any stage of the proceedings, up to and including trial.”
(Atkinson v. Elk Corp.
(2003) 109 Cal.App.4th 739, 761 [internal quotes omitted].) Where leave is
sought to add entirely new claims, the court may grant leave to amend if the
new claims are based on the same general set of facts, and the amendment will
not prejudice the opposing party. (Austin
v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600-602; Glaser v. Meyers (1982) 137 Cal.App.3d 770, 777 [holding
trial court did not abuse its discretion in permitting amendment of complaint,
which originally alleged constructive eviction, to allege retaliatory eviction
where the new claim was based on the same general set of facts].)
Although
denial is rarely justified, a court has discretion to deny leave to amend if
the party seeking the amendment has been dilatory, and the delay has prejudiced
the opposing party. (Morgan v. Superior
Court (1959) 172 Cal.App.2d 527, 530; Hirsa v. Superior Court
(1981) 118 Cal.App.3d 486, 490). An opposing party is prejudiced where the
amendment would necessitate a trial delay along with a loss of critical
evidence, added preparation expense, increased burden of discovery, etc. (Magpali
v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488 [leave properly
denied where plaintiff sought leave on the eve of trial, nearly two years after
the complaint was originally filed and gave no explanation for the delay which
prejudiced defendant who did not discover or depose many of the witnesses who
would support the new allegations and had not marshaled evidence in opposition
of the new allegations].)
Procedurally,
a motion for leave to amend must state with particularity what allegations are
to be amended. Namely, it must state what allegations in the previous pleading
are proposed to be deleted and/or added, if any, and where, by page, paragraph,
and line number. (CRC, Rule 3.1324(a)(2)-(3).) The motion must be accompanied
by a declaration specifying: (1) the effect of the amendment; (2) why the
amendment is necessary and proper; (3) when the facts giving rise to the
amended allegations were discovered; and (4) the reasons why the request for
amendment was not made earlier. (CRC, Rule 3.1324(b).) The motion must also be accompanied
by the proposed amended pleading, numbered to differentiate it from the prior
pleadings or amendments. (CRC, Rule 3.1324(a)(1).) It is within the court’s
discretion to require compliance with Rule 3.1324 before granting leave to
amend. (Hataishi v. First American Home Buyers Protection Corp. (2014)
223 Cal.App.4th 1454, 1469.)
Motion to Quash
Code of
Civil Procedure section 1987.1 provides in part:
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, including unreasonable violations
of the right of privacy of the person.
California’s standard for discovery
is broad: “any party may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter involved in the pending action or to the
determination of any motion made in that action, if the matter either is itself
admissible in evidence or appears reasonably calculated to lead to the
discovery of admissible evidence.” (CCP, § 2017.010.) Courts construe the right
to discovery liberally to permit discovery whenever possible. (Williams v.
Superior Court (1997) 3 Cal.5th 531, 541.) One of the purposes of the
discovery is “to educate the parties concerning their claims and defenses so as
to encourage settlements and to expedite and facilitate trial.” (Emerson
Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.)
EVIDENTIARY ISSUES
Plaintiffs’ request for judicial notice is GRANTED.
Analysis
Motion for Leave to File Third Amended
Complaint
Plaintiffs
seek leave of court to file a Third Amended Complaint (TAC) against defendant
Beverly Spalding Court Homeowners’ Association (“HOA”) seeking to add a request
for injunctive relief on the existing claims.
The TAC’s additional relief arises out of the same facts and averments
already pled in the SAC, and clarifies certain allegations made in the SAC.
On
January 25, 2022, defendants filed and served their motion for summary judgment
which is scheduled to be heard on October 6, 2022. There is no dispute that the
filing of an amended complaint would moot the motion for summary judgment,
which is directed at the SAC. (See Perry v. Atkinson (1987) 195
Cal.App.3d 14, 17–18.) The current trial date would preclude Defendants from
filing a new motion for summary judgment, given the jurisdictional 75-day
notice period.
Accordingly,
the hearing on the instant motion for leave is continued to be heard after the
motion for summary judgment. The Court will consider the motion if any relevant
causes of action are remaining to support the requested injunctive relief. The new hearing date shall be October ___,
2022.
Motion to Quash
Plaintiffs
provide proof of service of the subpoena on Adams Stirling PLC and Troy Kennedy.
(Perez Decl., ¶¶ 3-5; Fisher Decl., ¶¶ 7-10.)
On August 23, 2022, Plaintiffs served two Deposition Subpoenas for the
Personal Appearance and Production of Documents and Things for Person Most
Knowledgeable, Adams Stirling PLC and Troy Kennedy, respectively. (Naysan
Decl., Exs. A-B.) Adams Stirling PLC is general counsel for the HOA. Mr.
Kennedy is an attorney employed by Adams Stirling and provided the HOA legal
advice regarding repairs at the subject property. (Naysan Decl., ¶ 5.)
Defendants argue that the subpoenas
seek information protected by the attorney client privilege. That assertion is
correct -- the Subpoenas seek the depositions of the HOA’s general counsel and
production of all communications between Defendants and their attorneys during
broad periods of time. The Subpoenas also seventeen categories of materials concerning
communications between the HOA and counsel. By way of example, RPD no. 1 seeks
any “and all correspondence, including, but not limited to, YOUR April, 2020
emails between YOU and HOA Organizers, Inc., Farshad “Peter” Naysan and Rey S.
Yang regarding Beverly Spalding Court Homeowners’ Association.”
The Court agrees that Defendants
have placed certain communications at issue, and thus waived the privilege as
to those specific issues. Here, Defendants
moved for summary judgment, in part, based on the business judgment rule and
Adams Stirling PLC’s advice. “The
deliberate injection of the advice of counsel into a case waives the
attorney-client privilege as to communications and documents relating to the
advice.” (Transamerica Title Ins. Co. v. Superior Court (1987) 188
Cal.App.3d 1047, 1053.) The business judgment rule as asserted in the motion for
summary judgment requires “as a factual prerequisite” that the directors’
reliance be reasonable, i.e., that of an ordinarily prudent person under
similar circumstances and [that they make] a reasonable inquiry as indicated by
the circumstances, where they act in good faith and without conflict. (See Palm
Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th
268, 279-280.) Defendants’ motion relies on the fact that Mr. Naysan was
advised by Adams Stirling attorney, Mr. Kennedy, regarding their responsibility
for the drainage system on the south side of the property. Therefore,
Plaintiffs are entitled to the communications and documents related to this
advice. The communications and
documents, however, are limited solely to the advice relied upon by Defendants. The subpoenas and accompanying document requests
seek information far beyond the limited waiver of the privilege in this matter.
For these reasons, the motion to
quash is DENIED. The alternative motion for a protective order is GRANTED in
accordance with the above directions limiting the scope of the waiver to communications
and documents related to the advice given by Mr. Kennedy to the HOA concerning
the drainage system on the south side of the property and the HOA’s responsibility
(or lack thereof) for that system.