Judge: Michael E. Whitaker, Case: 21STCV31189, Date: 2022-09-07 Tentative Ruling

Case Number: 21STCV31189    Hearing Date: September 7, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTIONS

            Plaintiff Mary-Carmen Galarza sued defendant Super Center Concepts, Inc. dba Superior Grocers based on a slip and fall in a store owned and operated by Defendant.  Defendant moves to quash the subpoena for production of business records Plaintiff served on Defendant’s landlord, 9 Galaxy, LLC (“Deponent”).  Plaintiff opposes the motion.

ANALYSIS

If a subpoena requires the production of documents, the court may quash the subpoena entirely or modify it.  (Code Civ. Proc., § 1987.1, subd. (a).)  In ruling on a motion to quash, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”  (Code Civ. Proc., § 1987.2, subd. (a).)

Current discovery standards hold that, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  (Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1039 (hereafter, Board of Nursing).)  “To meet this [test], a party seeking to compel [the] production of records . . . must articulate specific facts justifying the discovery sought; it may not rely on mere generalities.”  (Ibid.; see Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 837 [finding that a subpoena was “insufficient” to compel production because it was “based wholly on the [party’s] alleged information and belief without any statement of supporting facts”].)  However, “[e]ven if information is otherwise discoverable, it may be protected by a constitutional or statutory privilege[,] [including] the right to privacy . . . .”  (Board of Nursing, supra, 59 Cal.App.5th at p. 1039.) 

            “The state Constitution expressly grants Californians a right of privacy.  Protection of informational privacy is the provision's central concern.  .  .  .  The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.^[1]  The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.  A court must then balance these competing considerations.”  (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [cleaned up].)

            “Legally recognized privacy interests [include] interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’) .  .  .  .”  (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35 (hereafter, Hill).)  “A particular class of information is [sensitive or confidential] when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.”  (Ibid.) 

Here, the subject subpoena seeks (i) all lease agreements for the subject store operative as of July 4, 2021; (ii) all insurance policies pertaining to the subject store for the day of July 4, 2021; and (iii) any documents pertaining to any changes made to the subject store’s floor from July 4, 2019, to July 1, 2022.  (Declaration of Justin D. Hansen, Exhibit C.)  Defendant asserts the subpoena must be quashed for six reasons: (1) the subpoena is overbroad; (2) the subpoena seeks information or communications that are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; (3) the subpoena seeks records that were the subject of propounded discovery already responded to or a discovery dispute that has already been adjudicated; (4) the subpoena seeks privileged, financial, confidential, private, business trade secret, and proprietary information or communications; (5) the subpoena seeks production of documents not generated by the subpoenaed business; and (6) Deponent is an improper recipient of a business-records subpoena because it is the landlord of the place where the cause of action is alleged to have arisen. 

            Defendant first argues Deponent is not the proper recipient of a business records subpoena.  Defendant’s argument is without merit.  Defendant relies on Evidence Code section 1560 to argue the subpoena is improper because Deponent is the business where the cause of action is alleged to have arisen.  (See Evid. Code, § 1560, subd. (b) [outlining the procedure for compliance with “a subpoena duces tecum [] served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business…”].)  Without delving into whether Section 1560 proscribes service of a business records subpoena on a business, the Court finds Defendant’s objection to be unfounded at the outset, because Deponent is not the business where any cause of action is alleged to have arisen - Defendant is.  Deponent is the owner of the subject property and Defendant’s landlord.  Defendant operates and maintains the business at the property, i.e., the grocery store in which Plaintiff alleges she slipped and fell.  Accordingly, Defendant’s argument concerning the procedural propriety of the subpoena is of no moment.

            Defendant next argues the subpoena should be quashed because it seeks records which the custodian of records cannot authenticate per Evidence Code section 1561.  (See Evid. Code, § 1561, subd. (a); Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1045.)  In opposition, Plaintiff contends that Defendant’s argument is mere speculation, and its reliance on Cooley is misplaced as Deponent has not attested that it cannot certify any of the records sought and Defendant offers no evidence of any such records.  The Court agrees.  To the extent Deponent is unable to certify any of the records in its possession that it feels would otherwise be responsive, Deponent may duly object to their production per Cooley.  

            Defendant next argues the subpoena is overbroad and seeks irrelevant records containing private, financial, business trade secret, and proprietary information not reasonably calculated to lead to the discovery of admissible evidence. 

The discovery statute is quite broad, permitting any party to “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.” (Code. Civ. Proc., § 2017.010.)

Generally, “[t]he state Constitution expressly grants Californians a right of privacy. Protection of informational privacy is the provision's central concern. . . . The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [cleaned up]; John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198 [“the right of privacy extends to . . . medical records”].)

With respect to trade secret privilege, Defendant bears the burden of establishing that the information requested is a trade secret and that Defendant is its owner. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393.) “Thereafter, the party seeking discovery must make a prima facie, particularized showing that the information sought is relevant and necessary to the proof of, or defense against, a material element of one or more causes of action presented in the case, and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit.” (Ibid.) It is then upon Defendant to demonstrate any claimed disadvantages of a protective order. (Ibid.)

Here, Defendant does not cite with particularity what information sought by the subpoena is protected by its right of privacy, is privileged, constitutes a trade secret or proprietary information, or is otherwise irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.  Should the requested records contain any such personal or privileged information, Deponent may still produce the requested documents and records after having redacted any private, irrelevant, or privileged information. Should Plaintiff find the redacted information to be necessary or questionable, Plaintiff may file a motion to compel.

Finally, Defendant argues the records sought by the subpoena are duplicative and relate to discovery disputes that have already been adjudicated.  The Court once again finds Defendant’s argument to be without merit.  Specifically, Defendant references the Court’s order of May 11, 2022, in which the Court denied Defendant’s motion to compel further discovery for Defendant’s failure to meet and confer in good faith to resolve the parties’ disputes concerning Plaintiff’s request for the production of similar or the same documents from Defendant.  Because the Court decided that motion on procedural deficiencies rather than upon the merits of the parties’ dispute, and because the requested records, presumably, were not provided to Plaintiff, the Court finds that records responsive to the subject subpoena are not cumulative and not subject to any discovery dispute adjudicated by the Court on its merits. 

The Court therefore concludes that Defendant has failed to demonstrate that the information sought by the subject subpoena is irrelevant, overbroad, privileged, or not otherwise reasonably calculated to lead to the discovery of admissible evidence such that the subpoena must be quashed entirely or modified. The Court therefore denies Defendant’s motion to quash the subpoena Plaintiff served on Deponent.

Defendant shall give notice of the Court’s ruling and file a proof of service of such.