Judge: Mark H. Epstein, Case: SC128659, Date: 2023-02-09 Tentative Ruling

Case Number: SC128659    Hearing Date: February 9, 2023    Dept: R

The motion is MOOT.  Were the motion not moot, the court would grant it.

Buckley’s unauthorized declaration, filed February 7, 2023, is STRICKEN.  Whether it is a sur-reply or just an attempt to get some additional evidence in the record, it is improper.

The motion is brought by Pomerantz to quash a broad trial subpoena by Buckley to the DMV.  (To the extent it is a discovery subpoena, it is untimely.)  While broad discovery is permitted, trial subpoenae are narrower.  They must set forth what is being sought with particularity and they must be targeted.  They must be necessary to the trial, meaning that they are not available simply because they might lead to the discovery of admissible evidence.

The subpoena here is overbroad and invades Pomerantz’s privacy without cause.  While Buckley adverts to federal law concerning what is private, California law is broader.  To get private information—and DMV records are private—Buckley needs to make a showing of need that outweighs Pomerantz’s interests in privacy.  He fails to do so.

It appears that Buckley’s reasoning is that at some point he was driving Pomerantz.  The reason he was driving was because Pomerantz stated that he could not drive because his car was damaged and being repaired.  The real reason, according to Buckley, was that Pomerantz’s license had been suspended.  Thus, assuming Buckley is right, the suspension would show that Pomerantz lied.  Further, because license suspensions can be for serious misconduct, it could be that the true reason was severe enough that Buckley would have fired Pomerantz rather than continuing to use Pomerantz as counsel, or at least might not have allowed Pomerantz into the car where Pomerantz allegedly assaulted Buckley.

The court finds this far, far too attenuated to justify a trial subpoena, even were it more narrowly tailored.  The court agrees with Pomerantz that this is a fishing expedition, and fishing season has closed.  Were the motion not moot, it would be granted.  Buckley will need to notify that DMV that the subpoena is moot because the trial has been continued.  Buckley ought not re-issue the subpoena regarding the new trial date.

The court notes that there are two motions to quash filed by third parties against Pomerantz with a hearing set for 2/27/23.  Those motions are also MOOT.  Pomerantz might want to let the moving parties know that the subpoenae are withdrawn because the trial has moved.  Pomerantz might also want to meet and confer with those parties to see if motion practice can be avoided in the future.  Fishing season has closed for everyone.