Judge: Nathan Vu, Case: 2021-01178855, Date: 2022-10-03 Tentative Ruling

Motion to Compel

Plaintiff Dean Kim’s motion to compel compliance with the civil subpoena (duces tecum) served on Non-Party Nancy Gray, Esq. is GRANTED.

Non-Party Nancy Gray, Esq. is ORDERED to comply with the civil subpoena (duces tecum) dated 09/01/2022 by appearing for trial and producing the requested documents at trial on October 31, 2022.

Plaintiff Dean Kim moves to compel Non-Party Nancy Gray, Esq. to comply with the civil subpoena (duces tecum) served on 09/01/2022.

Plaintiff has sufficiently demonstrated a basis to compel compliance pursuant to Civil Procedure Code sections 1985, 1987.1, and 2025.480. Plaintiff has established that he properly served Non-Party Nancy Gray, Esq. of Gray & Associates, PC (Attorney Gray) with the civil subpoena (duces tecum) (Subpoena) and that Attorney Gray has stated that she would not produce the documents requested absent a court order. (Oh-Kubisch Decl., ¶¶ 2 & 6-8 & Exh. 5.)

Defendant contends that the affidavit attached to the Subpoena failed to show good cause, as required by law. (See Civil Proc. Code, §§ 1985, subd. (b), & 1987.5.) However, the requirements of Sections 1985(b) and 1987.5 have been superseded by Civil Procedure Code section 2020.510(b), which provides that a records and testimony subpoena “need not be accompanied by an affidavit or declaration showing good cause for the production.” (Civil Proc. Code, § 2020.510, subd. (b); see Terry v. SLICO (2009) 175 Cal.App.4th 352, 359 [Civil Procedure Code section 2020.510(b) controls over contrary provision in Civil Procedure Code sections 1985(b) & 1987.5].)

In any case, Plaintiff’s counsel’s that the “[d]ocuments relate to the character and credibility of Defendant Jacob Koo and how the Hastens/Damon Capital LLC business is/was run” is neither speculative nor irrelevant. As Plaintiff explained, the documents relate to the operations of the Hastens business (and particularly whether Defendant properly operated the Hastens business), which is material to the explanations for Defendant’s failure to pay the promissory note, whether income of the business was properly distributed to Plaintiff and Defendant, whether there was a pattern of improper actions by Defendant, and the value of the business. The documents may also be used for impeachment.

Plaintiff has made a sufficient showing of good cause. The Civil Discovery Act was intended to provide the right to broad discovery and must be liberally construed in favor of allowing discovery. (See Sinaiko Healthcare Consulting, Inc. vs. Pacific Healthcare Consultations (2007) 148 Cal.App.4th 390, 402.)

Further, the documents are not privileged and the court in Boris Eckey v. Hastens Beds, Inc., et al. already determined that they were not confidential and thus, were required to be filed publicly rather than under seal. (See Civil Proc. Code, § 2017.010 [parties are entitled to discovery of “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.”].)

Defendant also contends that this motion is an untimely discovery motion. The last day for a non-expert discovery motion to be heard is 15 days before trial. (Civil Proc. Code, § 2024.020, subd. (a) [“[A]ny party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.”].) This motion will be heard more than 15 days before the 10/31/2022 trial, so it is not untimely.

Plaintiff shall give notice of this ruling.