Judge Randolph M. Hammock, Case Number: 22STCV21054, Date: 2023-11-30 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV21054, Date: 2023-11-30 Tentative Ruling

(1) NON-PARTY LAW OFFICES OF SCOTT C. GLOVSKY, APC’S NOTICE OF MOTION AND MOTION TO QUASH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO LAW OFFICES OF SCOTT C. GLOVSKY OR, IN THE ALTERNATIVE, FOR PROTECTIVE ORDER AND FOR SANCTIONS

Plaintiff Antonina Prestigiacomo brings this action against her health insurer, Defendant Oscar Health Plan of California, for (1) breach of the implied covenant of good faith and fair dealing, (2) breach of contract, and (3) violation of Business and Professions Code section 17200. Plaintiff alleges Defendant has failed to provide coverage for medically necessary emergency services despite a contractual obligation to do so.

Non-party Law Offices of Scott C. Glovsky now moves to quash a subpoena for production of business records. Defendant opposed. Non-party Glovsky also moves in his individual capacity to quash the subpoena for appearance at deposition. Defendant opposed.

Non-Party Law Firm’s Motion to Quash is GRANTED in part and DENIED in part. The Law Firm is ordered to comply with paragraphs 1 through 7 and 13 through 14 of the subpoena. The Law Firm need not comply with paragraphs 8 through 12 of the subpoena, which seeks documents or communications involving parties not involved with this litigation.

A court may quash a subpoena entirely or partially, and issue an order to protect parties, witnesses or consumers from unreasonable or oppressive demands including violations of privacy. (Code Civ. Proc., § 1987.1.) A motion to quash the production of documents or tangible things requires a separate statement. (Cal. Rules of Court, rule 3.13459(a)(5).) “[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” (Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-583.)

First, non-party Law Offices of Scott C. Glovsky, APC, (“Law Office”) who represents Plaintiff in this matter, moves to quash a subpoena for the production of business records served by Defendant. Defendant served this subpoena on Plaintiff’s counsel on October 6, 2023. (Glovsky Decl. Exh. 4.)

The subpoena seeks 14 categories of documents, including but not limited to all agreements between Plaintiff and counsel relating to the lawsuit, unredacted copies of the engagement letter or retainer agreement, and “All COMMUNICATIONS between [counsel] and any of [counsel’s] client(s) RELATING to the CONTINGENT FEE PROVISION, including but not limited to the ‘in-kind consideration’ provision.” (Id.)

Through this discovery, Defendant seeks to gain information into Plaintiff’s damages by amounts owed to her attorney, since attorney’s fees are a component of her damages in this insurance dispute. (See Brandt v. Superior Court (1985) 37 Cal. 3d 813, 819.) Defendant contends that Plaintiff’s deposition did not resolve the issue of her “Brandt fees,” but rather, showed confusion and inconsistencies regarding Plaintiff’s understanding as to what counsel is entitled to recover under their retainer agreement. Thus, in order to uncover the true amount of Plaintiff’s damages, Defendants need discovery into any agreements between Plaintiff and the Law Firm, including the interpretation of any such agreements.

The Law Office contends first that the documents sought are protected by the attorney client privilege and work product privilege. The Law Office then contends that Defendant has other practical means to obtain non-privileged, discoverable information regarding Plaintiff’s damages. The Law Office notes that Defendant deposed Plaintiff on September 26, 2023, where she testified “at length regarding her damages.” Finally, the law office argues the documents sought are not crucial to Defendant’s preparation of the case, that the subpoena is procedurally defective, and that it contains oppressive and unreasonable demands.

As an initial matter, there is no merit to the Law Firm’s contention that the subpoena is procedurally defective. Generally, the subpoenaing party is required to serve a Notice to Consumer on a consumer whose records are sought. (See C.C.P. § 1985.3(b)(1) (“Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service . . .” ).

Here, Defendant did not technically serve a Notice on Plaintiff herself, only her counsel. However, the notice to Plaintiff would have gone to the same place: the Law Firm. Thus, Plaintiff undoubtedly received notice of the subpoena through her counsel as required. Therefore, notice was sufficient.

Moving on, regarding the privileged nature of the documents, Plaintiff largely waived any privilege by seeking Brandt fees as an element of her damages. “Where privileged information goes to the heart of the claim, fundamental fairness requires that it be disclosed for the litigation to proceed.” (Steiny and Co., Inc. v. Morley Const. Co. (2000) 79 Cal.App.4th 285, 292.) Of course, the retainer agreement and related communications presumably do not include counsel’s impressions, conclusions, opinions, or legal research or theories—matters which are and remain privileged and need not be turned over.

Likewise, there is no “lawyer-witness problem” with the document request. As one leading treatise has explained “[t]here is no ethical problem in the lawyer's giving [testimony on a fee agreement],” since Rule 3.7(a)(2) (formerly Rule 5-210(B)) of the California Rules of Professional Conduct “specifically provides that a lawyer may testify as to the nature and value of legal services rendered, as an exception to the general rule prohibiting lawyers from giving testimony in cases they are handling.” (California Practice Guide: Insurance Litigation Ch. 13-B (The Rutter Group) [citing Brandt v. Sup.Ct. (Standard Ins. Co.), supra, 37 Cal. 3d at 820.)

Because the amounts recoverable from counsel are an element of Plaintiff’s damages, it is reasonable and appropriate for Defendant to seek discovery into same. These documents are relevant to the matter. Moreover, Defendant demonstrates it is standard practice in this type of litigation to obtain such discovery. It also appears that no other practical means exist to obtain the discovery sought.

However, the court does agree with Plaintiff and her counsel that the subpoena is overbroad. At this time, there is no need to allow discovery into documents or communications relating to counsel’s other clients (i.e., paragraphs 8-12 of the subpoena.) Therefore, the required production under the subpoena is limited to only documents or communications with Plaintiff relating to amounts owed to, or recoverable by, counsel under the fee agreement(s) between those two parties (i.e., paragraphs 1-7, and 13-14.)

Accordingly, Non-Party Law Firm’s Motion to Quash is GRANTED in part and DENIED in part. The Law Firm is ordered to comply with paragraphs 1 through 7 and 13 through 14 of the subpoena. The Law Firm need not comply with paragraphs 8 through 12 of the subpoena, which seeks documents involving parties not involved with this litigation.

Generally, depositions of opposing counsel are presumptively improper, severely restricted, and require “extremely” good cause—a high standard. (Spectra–Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1493; see also Trade Center Properties, Inc. v. Superior Court (1960) 185 Cal.App.2d 409, 411.)

There are strong policy considerations against deposing an opposing counsel. The practice runs counter to the adversarial process and to the state's public policy to “[p]revent attorneys from taking undue advantage of their adversary's industry and efforts,” among other things. (C.C.P. § 2018.020, subd. (b).) To effectuate these policy concerns, California applies a three-prong test in considering the propriety of attorney depositions. First, does the proponent have other practicable means to obtain the information? Second, is the information crucial to the preparation of the case? And third, is the information subject to a privilege? (Spectra–Physics, supra, 198 Cal.App.3d at 1494–1495, 1496; see also Estate of Ruchti (1993) 12 Cal.App.4th 1593, 1601 [affirming protective order against deposition of opposing counsel].) The burden on the first two prongs rests with the party seeking the deposition, whereas the burden of asserting a privilege rests with the party opposing the deposition. (Carehouse Convalescent Hosp. v. Superior Ct. (2006) 143 Cal. App. 4th 1558, 1563.)

At this time, there are other appropriate means to obtain the discovery sought, including the document production discussed and permitted above. Because Defendant has other practicable means to obtain the discovery, deposing Plaintiff’s counsel is unnecessary. Therefore, Defendant has not shown “extremely good cause” at this time to justify the deposition of opposing counsel.

In making an order pursuant to California Code of Civil Procedure section 1987.1, “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).)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.