Judge: Nick A. Dourbetas, Case: 2020-01131372, Date: 2022-07-29 Tentative Ruling
1. Motion to Quash Subpoena
2. Motion to Quash Subpoena
Nonparty deponents Victor Del Toro’s and Mary Del Toro’s motions to quash subpoena are both GRANTED in limited part as follows, and otherwise DENIED. (See Code Civ. Proc., § 1987.1.)
1/18/22 minute order exception to discovery cut-off. Upon further review of the record and after considering all of the parties’ arguments, including the arguments set forth in the parties’ supplemental briefing, the court finds the exception to the discovery cut-off deadline set forth in its 1/18/22 minute order applies to the subject subpoenas. (See ROA No. 174 [1/18/22 minute order].) Plaintiff Curt Daniel Newnes (plaintiff) previously issued subpoenas to Victor and Mary Del Toro for their testimony and the production of certain documents at deposition in November 2021, which set their depositions for 12/13/21. (See ROA No. 257–Supp. Newnes Decl. ¶ 2, Ex. 2, pp. 53-66 [November 2021 subpoenas to the Del Toros].) On 12/7/21, plaintiff’s court reporter agency terminated its services with plaintiff, effectively nullifying these prior, original subpoenas to the Del Toros. (See id. ¶ 4; Code Civ. Proc., §§ 2020.510, subd. (a)(1), 2020.310, subd. (a).)
As a result, plaintiff was unable to obtain their depositions, and asked for a trial continuance to complete discovery. (See ROA No. 174.) On 1/18/22, the court granted the trial continuance to 4/25/22, and further ordered, in pertinent part: “Only discovery that are [sic] already issued/calendared can go forward. Mr. Newnes can obtain another Court Reporter agency for depositions.” (Ibid.) By explicitly stating that plaintiff could obtain another court reporter agency for the depositions, the court implicitly excepted the subject revised/amended subpoenas, since the only manner in which plaintiff would be able to obtain the Del Toros’ depositions as sought by his previously issued subpoenas, would be to issue revised subpoenas for the same with a different court reporter agency (given that the original court reporter agency had terminated its services) on a different date (as the original deposition date had now passed).
Code Civ. Proc., § 1985, subd. (b). The Del Toros now move to quash the subject revised/amended subpoenas on the ground that they are not supported by an affidavit that provides the information set forth in Code of Civil Procedure section 1985, subdivision (b) (section 1985(b)). (See ROA Nos. 178 & 182–Memo. P&As at pp. 3-4, citing and relying on Code Civ. Proc., § 1985, subd. (b), People v. Keith Ry. Equipment Co. (1945) 70 Cal.App.2d 339, 361 [a case predating the Discovery Act, relying on a single citation to case law that imposes the same requirements as section 1985], Johnson v. Superior Court for Santa Barbara County (1968) 258 Cal.App.2d 829, 836 [applying section 1985], and Seven Up Bottling Co. of Los Angeles v. Superior Court of Los Angeles County (1951) 107 Cal.App.2d 75, 77 [a case predating the Discovery Act, and applying section 1985].)
These contentions fail because the Discovery Act specifically provides that a records and testimony subpoena “need not be accompanied by an affidavit or declaration showing good cause for the production of the documents and things designated” (Code Civ. Proc., § 2020.510, subd. (b)), and sets forth a different standard for the designation of materials/documents to be produced in such a subpoena (id., § 2020.510, subd. (a)(2)). These provisions control over the contrary provisions in section 1985(b). (See Terry v. SLICO (2009) 175 Cal.App.4th 352, 358-359.) Thus, plaintiff’s failure to attach the affidavit required by section 1985(b) does not render the subject subpoenas improper/ineffective or subject them to a motion to quash.
That said, the subject subpoenas seek additional discovery not previously sought in the original subpoenas. Specifically, the subject subpoenas include production demands that seek material/documents from a wider time period, i.e., from certain dates “to present,” instead of just to “11/1/2021,” as requested in the original subpoenas. (Compare ROA No. 257–Supp. Newnes Decl. at Ex. 5, pp. 146-156, 165-175 [subject subpoenas], with id. at Ex. 2, pp. 53-66 [original subpoenas].) The subject subpoena to Mary Del Toro also includes a new, additional demand (demand No. 7 in the revised/amended subpoena) seeking documents/communications between herself and Sean A. Miller, which was not included in her original subpoena. (See ibid.)
On 1/18/22, the court allowed only discovery that had already been issued to go forward. Since plaintiff did not, prior to 1/18/22, issue any discovery seeking material from the broader time periods set forth in the subject subpoenas (that is, seeking material from any time after 11/1/21) or from Mary Del Toro for documents/communications between herself and Mr. Miller, plaintiff is precluded from doing so now in the subject subpoenas.
The court therefore ORDERS as follows:
1. The portions of the production demands set forth in the subject subpoenas where they read, “to present,” are hereby stricken, and replaced with “to 11/1/21.”
2. Demand No. 7 in the subject subpoena issued to Mary Del Toro is stricken in its entirety.
Plaintiff may re-issue revised subpoenas to the Del Toros that comply with the above for a new date and time, as the deposition dates in the subject subpoenas have now passed. Plaintiff shall complete any such discovery no less than 30 days before the present trial date of 12/5/22, and should not expect any further continuances to complete this discovery.
Sanctions are DENIED. (See Code Civ. Proc., § 1987.2.)
To be clear, in ruling on these motions to quash, the court has not considered or determined the viability or merit of any potential objections that the deponents have not yet specifically raised and may still raise at the time of the subject depositions.
Plaintiff shall give notice.