Judge: Melvin D. Sandvig, Case: 23CHCV02278, Date: 2024-10-29 Tentative Ruling
Case Number: 23CHCV02278 Hearing Date: October 29, 2024 Dept: F47
Dept. F47
Date: 10/29/24
TRIAL DATE: 8/11/25
Case #23CHCV02278
MOTION TO
COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA
FOR
PRODUCTION OF
BUSINESS RECORDS
Motion filed on 4/2/24.
MOVING PARTY: Plaintiff Kelley Huffman
RESPONDING PARTY: Non-Party Liberty Mutual Fire Insurance
Company
NOTICE: ok
RULING: The motion is denied.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action for personal injuries arises out of a motor
vehicle collision that occurred on 9/27/21 (the Collision) between a vehicle
driven by Defendant Ric Garrison (Defendant) and a vehicle driven by Plaintiff
Kelley Huffman (Plaintiff).
At the time of the collision, Defendant was operating a 2016
Tesla model S, bearing California license plate number 7XFW503 (the Vehicle). The applicable insurance policy providing
coverage to Defendant for collision is through non-party Liberty Mutual Fire
Insurance Company (Liberty Mutual Fire).
On 2/6/24, Plaintiff subpoenaed records from Liberty
Mutual Fire regarding the Collision and the Vehicle with a production date on
or before 2/22/24. (Thompson Decl. ¶5,
Ex.D). The subpoena sought the
production of the following documents:
“Any and all records regarding
Policy Holder Ric Garrison (DOB:5/7/1956) concerning Policy No.
AO2-261-704775-40; LJ1-261-621070-10, with DOL: 9/27/2021 including but not
limited to: all photographs and videos (digital and color) depicting any
involved vehicle, the scene, and/or any injuries; recorded, transcribed, and/or
written statements of any individual; collision repair estimates, records and
receipts; and electronic download data regarding braking, vehicle movements
and/or airbag module data/information concerning any vehicle involved in the
9/27/2021 incident, including, but not limited to, the 2016 blue Tesla model S.
All records and documents
pertaining to any other claims at any time regarding the 2016 blue Tesla model
S 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, recorded statements,
transcribed statements, and written statements.
The documents sought via this
subpoena specifically exclude financial, billing, and proprietary information
as well as anything covered by the attorney-client privilege and/or attorney
work product doctrine.”
Id.
On 2/22/24, Liberty Mutual Fire’s counsel served
objections to Plaintiff’s deposition subpoena for production of business
records. (Thompson Decl. ¶¶7-8,
Ex.E). Liberty Mutual Fire did not
produce any records.
On 4/2/24, Plaintiff filed and served the instant motion
seeking an order compelling the Custodian of Records at Liberty Mutual Fire to
immediately comply with the deposition subpoena for production of business
records, to produce responsive documents, and to pay monetary sanctions in the
amount of $4,300.99. Liberty Mutual Fire
has opposed the motion and requests sanctions in the amount of $14,136.00 against
Plaintiff and her counsel. Plaintiff has
filed a reply to the opposition.
ANALYSIS
The motion is based, at least in part, on the incorrect
premise, that Liberty Mutual Fire was required to file a motion to quash the
deposition subpoena for business records or a motion for protective order after
having served objections to same. (See
Motion, p.5:8-11, p.6:8-10). While
Plaintiff acknowledges that a non-party served with a deposition subpoena may
choose to substantively respond, or: (1) serve only objections; (2) move for a
protective order; or (3) move to quash, citing Monarch Healthcare 78
CA4th 1282, 1284, 1290, Plaintiff contends that a non-party may simply object
to a business records deposition only where the request sought privileged
information. (See Opposition, p.5:25-p.6:1).
The Court finds that Monarch makes no such
holding. Rather, the Court of Appeal
held that while nonparties may file a motion to quash or a motion for
protective order, these extra steps are not necessary once objections to the
deposition subpoena have been properly made.
See Monarch Healthcare, supra at 1287-1288. The Monarch court noted that
“[d]iscovery procedures are generally less onerous for strangers to the
litigation.” Id. at 1289-1290. As such, once Liberty Mutual Fire served its
objections to the records only deposition subpoena, the burden shifted to
Plaintiff to file a motion to compel compliance. Id. at 1290. Even if Monarch did hold as Plaintiff
claims, Liberty Mutual Fire did base its objections, in part, on the ground
that the subpoena sought privileged information. (See Thompson Decl., Ex.E p.3:1-7,
p.5:6-8 as examples).
The motion confusingly and incorrectly argues that
“[s]ince there was no response to the subpoena by Liberty Mutual, this Motion
must be granted” and then acknowledges in the next sentence that Liberty Mutual
responded to the subpoena by serving an objection. (See Motion, p.6:15-17). Plaintiff then reiterates the incorrect
assertion that “an objection alone is insufficient to refuse production and
that Liberty Mutual Fire was required to seek relief by filing a Motion to
Quash or Motion for Protective Order. (See
Motion, p.6:18-19).
Since Liberty Mutual Fire properly objected to the
deposition subpoena on various grounds, it became Plaintiff’s burden to file
and serve a properly supported motion to compel compliance. The instant motion filed by Plaintiff fails
to meet the requirements for such a motion.
The motion is not accompanied by a meet and confer declaration as
required. See CCP 2025.480(b);
CCP 2016.040. There is no evidence that
Plaintiff made any effort to meet and confer after Liberty Mutual Fire served
its objections to the subpoena which is the subject of this motion. Rather, Plaintiff contends that a meet and
confer letter it sent on 1/3/24, in response to objections served to a
deposition subpoena served on the wrong insurance company, and the declaration
attached to the instant motion, satisfy its meet and confer requirements. (See Thompson Decl. ¶5, Ex.C; Reply
p.3:6-22). Plaintiff provides no
authority to support the conclusion that a meet and confer letter sent before
the subject deposition subpoena was served and in response to a prior
deposition subpoena served on a separate insurance company satisfies
Plaintiff’s meet and confer requirement with regard to the deposition subpoena served
on Liberty Mutual Fire which is the subject of this motion. (See Motion, p.4:3-p.5:6; Thompson
Decl. ¶¶3-5).
Additionally, Plaintiff has failed to include a separate
statement with the motion as required. See
CRC 3.1345(a)(5). Liberty Mutual Fire responded
to the subject deposition subpoena with various objections, most of which are
not addressed in the motion. The motion
only addresses objections based on privilege and privacy. (See Motion, p.7:1-p.8:6). Liberty Mutual Fire also objected to the
subpoena on additional grounds, including but not limited to, that it is
oppressive and burdensome, vague, ambiguous and unintelligible. A separate statement requires that Plaintiff
address each of these objections and provide a statement of the factual and
legal reasons for compelling production in the face of same. See CRC 3.1345(c).
The Court finds that Liberty Mutual Fire has failed to
properly support its request for $14,136.00 in sanctions. Liberty Mutual Fire merely cites CCP 2023.030
to support its request for sanctions. (See
Opposition, p.11:13-24). CCP 2023.030 is
the statute which authorizes the imposition of various sanctions for engaging
in the misuse of the discovery process.
However, Liberty Mutual Fire does not specify the underlying statutory
basis for the purported misuse of the discovery process (i.e., a subsection of
CCP 2023.010). Moreover, the declaration
submitted in support of the motion does not provide a break-down of the hours
spent on the opposition or the hourly rate charged by the attorney. (See Karelis Decl. ¶11). It also appears that Liberty Mutual Fire is improperly
including fees to respond to the prior deposition subpoena served on a separate
insurance company and which is not the subject of this motion. Id.
The Court finds the request for over $14,000.00 in sanctions for
opposing this discovery motion to be extremely excessive. As such, the request for sanctions is
denied.
CONCLUSION
The motion is denied.
Liberty Mutual Fire’s request for sanctions is also denied.