Judge Mitchell L. Beckloff, Case 22STCP01432 2022-10-28 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP01432, Date: 2022-10-28 Tentative Ruling

[Tentative] ORDER GRANTING IN PART AND DENY IN PART RESPONDENT CITY’S MOTION TO QUASH SUBPOENA AND MOTION FOR PROTECTIVE ORDER

The City also moves pursuant to sections 2019.030, subdivisions (a) and (b), and 2031.060, subdivision (b)(1) for a protective order: 1) prohibiting Petitioner from engaging in any further discovery in this proceeding; 2) prohibiting Petitioner from seeking or submitting to the court as evidence any documents other those in the certified administrative record or permitted pursuant to a motion to augment that record; and 3) placing any other restrictions on discovery the Court finds necessary.

On June 20, 2022, Petitioner served on the City a subpoena duces tecum for personal appearance and production of documents at trial or hearing on the City. The subpoena demanded the appearance and testimony of the City’s custodian of records at a hearing purportedly set for July 14, 2022,[2] or production of the following records:

“Any and all documents, including but not limited to, correspondence, emails, memoranda, official public records, notes, reports, recordings, administrative records, official public records related directly or indirectly to any and all proposed projects and actual projects relating to that real property commonly known as that real property situated in Los Angeles County, known as 1627 Via Del Rey, South Pasadena, California 91030.” (Wyckoff Decl., ¶ 3, Ex. 1.)

On June 29, 2022, the City served all parties with objections to the subpoena. (Wyckoff Decl., ¶ 6, Ex. 2.)

The City moves for an order quashing the subpoena pursuant to sections 1987.1, subdivision (a) and 2019.030, subdivisions (a) and (b). The City argues the subpoena is procedurally defective and must be quashed because it does not comply with the requirements of sections 1985 and 1987.

First, section 1985 defines “subpoena” and provides that an affidavit must be served with a subpoena duces tecum issued before trial showing good cause for the production of the items described in the subpoena. (§ 1985, subd. (a).)

“These Documents are necessary to prove my Petition for Alternative Writ of Mandate in that they are the official documents and records used by the Defendant as the evidentiary foundation to justify the Defendant's denial of and defenses to my claim. In addition, the subpoenaed documents are necessary for the Petitioner to lay a[n] evidentiary foundation and also for possible impeachment purposes during any hearings held in this matter.” (Wyckoff Decl., ¶ 3, Ex. 1.)

The court finds the affidavit supporting the subpoena is inadequate. The subpoena merely contains a conclusory and general statement the documents sought are necessary. (Johnson v. Superior Court for Santa Barbara County (1968) 258 Cal.App.2d 829, 835; Seven Up Bottling Co. of Los Angeles v. Superior Court of Los Angeles County (1951) 107 Cal.App.2d 75, 77. [“A mere allegation that the records are material, in the absence of any facts supporting such allegation, constitutes a conclusion of law which does not meet the requirements” of section 1985.]) Accordingly, Petitioner has failed to specifically demonstrate a need for any specific document, for any specific trial use, claim, impeachment, defense, etc.

In addition, the affidavit is likely inadequate because the affidavit does not meet the specificity requirement as discussed below.

Second, section 1987, subdivision (c), provides in relevant part: “The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control.” (§ 1987, subd. (c); see § 1985, subd. (b) [containing similar language, requiring the affidavit accompanying the subpoena to “specify[ ] the exact matters or things desired to be produced . . .”].)

As argued by the City, the subpoena’s generalized and vague document request does not satisfy the particularity requirement of section 1987, subdivision (c)—the subpoena does not specify the “exact” documents to be produced by the City. Instead, Petitioner treats the subpoena as a discovery tool, demanding production of a multitude of unspecified and general document categories. This is improper and renders the entire subpoena defective. (See, e.g., Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 565 [“[t]he principal reason for the specificity requirement is to adequately apprise the custodian of what records are desired and the requested identification may be defeated by generality of description” in context of section 1985]; Flora Crane Service, Inc. v. Superior Court In and For City and County of San Francisco (1965) 234 Cal.App.2d 767, 785-786 [in context of section 1985].)

Therefore, the motion to quash the subpoena is granted. (Johnson v. Superior Court for Santa Barbara County (1968) 258 Cal.App.2d 829, 835 [“a subpoena duces tecum has no force or effect if the affidavit required by section 1985 of the Code of Civil Procedure does not comply with the provisions of that section.”])[3]

In addition, the City moves pursuant to sections 2019.030, subdivisions (a) and (b) and 2031.060, subdivision (b)(1) for a protective order prohibiting Petitioner from engaging in any other discovery in this case. The City seeks an order prohibiting Petitioner from seeking as evidence any documents beyond those in the certified administrative record for the proceeding or other records ordered to augment the record.

The City argues discovery is improper in administrative mandamus. To the extent Petitioner wishes to offer extra-record evidence in this proceeding, he must proceed by way of a motion to augment. The City also notes even in the context of a traditional mandate claim Petitioner is similarly limited to the administrative record.

Petitioner is adamant he is pursuing relief from this court pursuant to section 1085. (Opposition 8:1-28.)

As noted by the City, the pleadings are not yet set. The nature of Petitioner’s claims are not yet clear. The court cannot state on this record whether Petitioner may proceed under section 1094.5, section 1085 or both.

Nonetheless, the protective order sought by the City overreaches. The court cannot determine without a concrete dispute whether discovery is inappropriate. The discovery Petitioner might seek, if any, is not unknown.

Similarly, the court cannot determine—in advance of a concrete dispute—documents that may be sought by Petitioner through discovery are protected in whole or in part by the deliberative and/or mental process privileges. Opining on the issue is premature.

Finally, the City’s complaint Petitioner did not obtain leave from court to conduct discovery is unavailing. (Motion 9:5-6.) Petitioner is not required to obtain leave from the court to engage in discovery.

Based on the foregoing, the City’s motion is granted in part and denied in part. The subpoena is quashed. The protective order is denied.

[1] All further undesignated statutory designations are to this code.

[2] The matter is not yet set for trial and the matter is not yet at issue.

[3] The City also objects to the subpoena arguing any discovery is improper where the underlying petition is (or, in this case, should be treated as) a proceeding under section 1094.5. The City’s argument is discussed in the context of the City’s request for a protective order.