Judge: Peter A. Hernandez, Case: 23PSCV00154, Date: 2023-09-11 Tentative Ruling
Case Number: 23PSCV00154 Hearing Date: December 13, 2023 Dept: K
Plaintiffs
Paul K. Schrieffer and Norma N. Schrieffer’s Motion to Enforce Subpoena for
Production of Business Records to the
Veterinary Medical Board is DENIED.
Background
Legal Standard
A motion to compel compliance with a deposition subpoena may be sought under either Code of Civil Procedure §§ 1987.1 or 2025.480. Under section 1987.1:
If a subpoena requires the attendance
of a witness or the production of books, documents, electronically stored
information, or other things before a court, or at the trial of an issue
therein, or at the taking of a deposition, the court, upon motion reasonably
made by any person described in subdivision (b), . . . may make an order
quashing the subpoena entirely, modifying it, or directing compliance with it
upon those terms or conditions as the court shall declare, including protective
orders. In addition, the court may make any other order as may be appropriate
to protect the person from unreasonable or oppressive demands, including
unreasonable violations of the right of privacy of the person.
(Code Civ. Proc., § 1987.1, subd. (a).) “The following persons may make a motion pursuant to subdivision (a): (1) A party. . .” (Code Civ. Proc., § 1987.1, subd. (b).)
Additionally, “if a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).)
Discussion
Plaintiffs move the court for an order to enforce the subpoena issued to The Veterinary Medical Board (“Board”). Plaintiffs also seek sanctions against Board in the amount of $2,100.00.
Plaintiffs’ counsel Christina A Ho (“Ho”) and Leila Renee Rajazi (“Rajazi”) represent as follows:
On August 25, 2023, Plaintiffs served a
subpoena on Board. (Ho Decl., ¶ 2, Exh. A.) The subpoena sought production of
the records on September 11, 2023. (Id.) On August 28, 2023, Board
issued a letter objecting to Plaintiffs’ subpoena, on the basis that the
subpoena (1) failed to meet notice to consumer requirements, (2) commanded the
production of documents that were not business records, (3) sought documents
privileged by Evidence Code § 1040 and/or Civil Code § 47 and (4) violated
consumer privacy rights. (Id., ¶ 3, Exh. B.) On September 12, 2023,
Rajazi spoke with Board’s counsel, Tara Welch (“Welch”), regarding Board’s
objections. (Rajazi Decl., ¶ 2). Welch advised that Board does not have any
documents issued by Board as enforcement actions, citations, or public
reprovals against Dhillon/San Dimas PC. (Id., ¶ 3). Welch also advised
that, to the extent Board had any other consumer complaints that did not result
in any formal disciplinary action against Dhillon/San Dimas PC, Board would not
release any such complaints based on consumer privacy grounds. (Id., ¶
4). Rajazi suggested to Welch that redacted records be provided, but Welch
advised that, as a matter of privacy and routine, Board does not release any
redacted complaints nor the number of complaints filed against a certain person
or entity. (Id., ¶ 5).
The subject subpoena contains four requests, which collectively seek all documents and communications (including license suspensions, investigations, consent orders and/or letters of reprimand) from January 1, 2010-present regarding complaints made by any person against Dhillon/San Dimas PC.
The court determines that Plaintiffs have failed to meet their burden of showing good cause. Absent a claim of privilege or attorney work product, the moving party meets its burden of showing good cause by a fact-specific showing of relevance. (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) In Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 224, the Court of Appeal explained:
In law and motion practice, factual evidence is supplied
to the court by way of declarations. [The moving party] provided argument but
no evidence at all to permit the court to conclude that the material sought was
admissible in evidence or appear[ed] reasonably calculated to lead to the
discovery of admissible evidence. The only justification for the request is
contained in [the moving party’s] ‘Statement Pursuant to Rule 335(a)’ and in a
document entitled Combined Opposition to Calcor Space Facility, Inc.'s Motion
for Protective Order and Reply Brief in Support of Motion to Compel Calcor
Space Facility, Inc. to Comply with Deposition Subpoena for Production of
Business Documents.” Neither document is verified, and thus they do not
constitute evidence.
The Calcor court issued a writ of mandate issue directing the trial court to vacate its order compelling the nonparty to produce documents, to serve a privilege log, and to serve responses in part because the plaintiff had failed to provide specific facts showing good cause for their production.
Subsequently, in Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216, 224 (disapproved of on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531), the Court of Appeal identified the manner for establishing good cause under Calcor: “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.”
Here, the motion is accompanied by the declarations from Ho and Rajazi. Neither
Ho nor Rajazi, however, make any showing of good cause. They fail to explain
how the discovery sought will tend to prove or disprove any identified disputed
fact or lead to other evidence that will tend to prove or disprove the
fact.
The motion, then, is denied.