Judge: Stephen I. Goorvitch, Case: 21STCV45383, Date: 2022-09-27 Tentative Ruling

Case Number: 21STCV45383    Hearing Date: September 27, 2022    Dept: 39

Ingo Rademacher v. American Broadcasting Companies, Inc.

Case No. 21STCV45383

Order #1 of 3

Motion to Quash

            Plaintiff Ingo Rademacher (“Plaintiff”) filed this action against the American Broadcasting Companies, Inc. (“Defendant”).  Plaintiff alleges as follows: Plaintiff is an actor who has been on the soap opera “General Hospital” for 25 years.  (First Amended Complaint, ¶ 5.)  Plaintiff requested a religious exemption to Defendant’s mandate that employees must be vaccinated.  (Ibid.)  Defendant represented that it would grant exemptions for “sincerely held religious objections to Covid-19 shots,” but “it refused to accept Plaintiff’s request.”  (Ibid.)  “[Defendant] subjected [Plaintiff] to half an hour of cross-examination about his religious beliefs and then denied his exemption request, without explanation.”  (Ibid.)  This action followed.

Defendant served a subpoena upon a third party—Protection of the Educational Rights of Kids (“PERK”)—seeking all communications between PERK and Plaintiff, as well as any “donations” to support Plaintiff’s claims against Defendant.  PERK supports “medical freedom” and the right for unvaccinated children to attend school.  It is undisputed that Plaintiff is represented by JW Howard/Attorneys, Ltd. (“JW Howard”).  JW Howard also represents PERK “in other pending litigation concerning similar Covid-19 mandates and violations resulting from the same.”  (Declaration of Scott J. Street, ¶ 5.) 

Now, Plaintiff moves to quash the subpoena.  If a subpoena requires the production of documents, the Court may quash the subpoena entirely or modify it.  (Code Civ. Proc., § 1987.1, subd. (a).)  In ruling on a motion to quash, “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).)

As an initial matter, Defendant objects on the basis that Plaintiff failed to file a separate statement.  However, Defendant opposes the motion on the merits, and thereby waived any procedural objection.  (In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 826.)  In the alternative, the Court waives the requirement, as the Court does not require a separate statement to resolve such a straightforward issue.  The Court reminds Plaintiff’s counsel to file required separate statements in the future.

The motion is granted in part and denied in part.  The Court finds that Defendant is not entitled to information concerning litigation funding.  Typically, discovery of a party’s financial condition, other than applicable insurance policies, is not discoverable.  (Doak v. Superior Court for Los Angeles County (1968) 257 Cal.App.2d 825, 828.)  The Court acknowledges “[i]n our discovery statutes the Legislature has authorized fishing expeditions.”  (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal. App. 4th 733, 739, fn. 4, internal quotations and citations omitted.)  This right is not without limits, and the Court cannot envision any relevance to the allegation that PERK has helped fund Plaintiff’s litigation.  The mere fact that PERK may have a secular agenda does not call into question the genuineness of Plaintiff’s alleged religious beliefs.  Both PERK and Plaintiff may advocate for the same thing for different reasons, one secular and one religious. 

The Court also finds that Defendant is not entitled to any communications between Plaintiff, JW Howard, and PERK.  Plaintiffs’ counsel’s declaration establishes JW Howard represents both Plaintiff and PERK concerning “Covid-19 mandates and violations.”  Although the “common interest privilege” has not been recognized by statute in California, the common interest doctrine still applies.  (See OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 889.)  In this case, both Plaintiff and PERK were clients of JW Howard concerning similar matters, and the record reflects no intention to waive privilege.  Therefore, Defendant is not entitled to communications between Plaintiff, JW Howard, and PERK.  Nor is Defendant entitled to any of JW Howard’s work product, regardless of whether it was shared with Plaintiff, PERK, or both.

However, the motion is denied in one narrow respect.  Defendant is entitled to any communications between Plaintiff and PERK independent of Plaintiff’s counsel that reference: (1) Plaintiff’s political, moral, or religious beliefs, (2) Plaintiff’s views on medical freedom or vaccination, including vaccine mandates, and (3) Plaintiff’s views on the efficacy of any COVID-19 vaccines.  The record establishes that Plaintiff did not intend to maintain privilege with respect to any related communications with PERK.  (See Declaration of Jarryd M. Cooper, ¶ 14.)

Based upon the foregoing, the Court orders as follows:

1.         Plaintiff’s motion to quash is granted in part and denied in part.  The motion is denied in that Defendant is entitled to any communications between Plaintiff and PERK independent of Plaintiff’s counsel that reference: (1) Plaintiff’s political, moral, or religious beliefs, (2) Plaintiff’s views on medical freedom or vaccination, including vaccine mandates, and (3) Plaintiff’s views on the efficacy of any COVID-19 vaccines.  The motion is otherwise granted.

            2.         Plaintiff’s counsel shall provide notice and file proof of such with the Court. 

Order #2 of 3

Motion for Leave to File Second Amended Complaint

            Plaintiff moves for leave to file a second amended complaint.  The motion is not opposed.  Therefore, the motion is granted.  Plaintiff shall file his second amended complaint within ten (10) days.  Plaintiff’s counsel shall provide notice and file proof of such with the Court.

Order #3 of 3

Motion for Leave to Remove Confidentiality Designation

            The Court has no tentative order on this motion.  The parties should be prepared to address: (1) Whether this decision should be made by the discovery referee; and (2) Why this issue must be resolved immediately.