Judge: Serena R. Murillo, Case: 21STCV28803, Date: 2023-09-19 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 21STCV28803    Hearing Date: October 17, 2023    Dept: 31

TENTATIVE

Plaintiff’s motion to quash is GRANTED.  The request for a protective order is DENIED.

Both parties’ request for sanctions is DENIED.

Request for Judicial Notice

Plaintiff requests judicial notice of the public docket of the proceeding, entitled, Leslie Shriver Katab v. Clifford (Cliff) Katab, Los Angeles County Superior Court Case No. BD558727.

The request is GRANTED pursuant to Evidence Code Section 452(d).

Legal Standard

When a subpoena has been issued requiring the attendance of a witness or the production of documents, electronically stored information, or other things before a court or at the taking of a deposition, the court, upon motion “reasonably made” by the party, the witness, or any consumer whose personal records are sought, or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court may specify.  (See Code Civ. Proc. § 1987.1; Southern Pac. Co. v. Superior Court (1940) 15 Cal.2d 206.) 

The court can make an order quashing or modifying a subpoena as necessary to protect a person from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”  (Code Civ. Proc., § 1987.1, subd. (a).)

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.  (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)  Generally, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence.  (Code Civ. Proc. § 2017.010; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.)   

Discussion

As an initial matter, the parties argue over whether Plaintiff properly met and conferred prior to filing the motion. However, Defendant identifies no rule or statute mandating meeting and conferring in this context, and the Court is aware of none. As such, this is of no relevance to the motion itself.

Plaintiff moves to quash a deposition subpoena for production of business records directed to Susan E. Weisner, ALC, Plaintiff’s family law lawyer. Plaintiff argues that (1) the Subpoena inappropriately invades the attorney-client privilege and work product doctrine; (2) the Subpoena infringes upon Plaintiff’s privacy rights; (3) the Subpoena seeks documents that are irrelevant to the pending proceedings between the Parties; (4) the Subpoena is procedurally defective; and (5) the Subpoena imposes an undue burden and does not appropriately describe the items sought.

Specifically, the subpoena seeks:

·       All communications between YOU and any other person that evidence or refer or RELATE TO any FINANCIAL DISCLOSURES.

·       All DOCUMENTS that evidence or refer or RELATE TO any FINANCIAL DISCLOSURES.

·       All DOCUMENTS that evidence or refer or RELATE TO the Stipulation and Order re Spousal Support Buy-Out filed by KATAB or on KATAB’s behalf on or about December 20, 2017, in the PROCEEDINGS, and any attachments thereto.

·       All communications between YOU and any other person that refer or RELATE TO the Stipulation and Order re Spousal Support Buy-Out filed by KATAB or on KATAB’s behalf on or about December 20, 2017 in the proceedings.

(Habib Decl., at ¶ 2, Ex. A.)

Plaintiff argues to the extent PTL is seeking documents prepared for litigation by the Wiesner Law Firm, including discovery documents and filings with the court, that would constitute an unauthorized request because such records would constitute a product of the Wiesner Law Firm’s business and are not an actual business record. (See e.g., Urban Pac. Equities Corp. v. Superior Ct., 59 Cal.App.4th 688, 693 (1997) (business records subpoena could not be used to obtain deposition transcripts from court-reporting service because the transcripts were the products of the service, and not an actual business record).)

“Business records” refer to “an item, collection, or grouping of information about a business entity,” including journals and books of account.  (Urban Pacific Equities Corp. v. Superior Court (1997) 59 Cal.App.4th 688, 693.)  “Business records” do not include records which are the product of a business.  (Id. at 692.)  

Defendant, by way of the Subpoena, does not seek production of business records, as it does not seek information about Susan E. Weisner, ALC, but rather a product of Weisner’s business. In other words, the documents Defendant seeks regarding Plaintiff’s financial condition in the divorce proceedings do not qualify as “business records” of Weisner’s law firm. The subpoena for business records is not the proper vehicle to request the production of these documents. As such, the motion to quash is granted.

Sanctions 

Plaintiff requests attorney fees under Code of Civil Procedure section 1987.2(a), which provides: “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.”  

The Court finds that the motion was not opposed in bad faith, especially considering Defendant’s efforts at meeting and conferring and proposing to limit the subpoena. Thus, Plaintiff’s request for sanctions is DENIED.

Defendant also seeks sanctions against Plaintiff. However, Defendant has not provided notice in its notice of opposition. CCP section 2023.040 states: A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. As such, Defendant’s request for sanctions is DENIED.

              Request for Protective Order

Plaintiff argues that the Court should issue a protective order under Code of Civil Procedure section 1987.1 for the same reasons as in its motion to prohibit PTL from issuing a subpoena to any entity for any documents pertaining to counsel for Plaintiff’s representation of Plaintiff, Plaintiff’s divorce proceedings, or any financial information relating to Plaintiff’s separation from Shriver. Plaintiff cites to no authority which would allow the Court to do so in such a fashion. The Court declines to grant such a broad request.

Conclusion

Based on the foregoing, Plaintiff’s motion to quash is GRANTED.  The request for a protective order is DENIED.

Both parties’ request for sanctions is DENIED.

Moving party is ordered to give notice.