Judge: Steven A. Ellis, Case: 20STCV40014, Date: 2023-11-27 Tentative Ruling

Case Number: 20STCV40014    Hearing Date: November 27, 2023    Dept: 29

TENTATIVE

Defendants’ motion to quash Plaintiff’s subpoena duces tecum issued to Michael Fabrega is GRANTED.

Background

On October 19, 2020, Plaintiff Jose A. Alvarez (“Plaintiff”) filed an action against Defendants Parsec, Inc. (“Parsec”), BNSF Railway Company (collectively “Defendants”) and Does 1-25.

The operative complaint is the First Amended Complaint filed on December 31, 2020, which asserts causes of action for motor vehicle, general negligence, and federal employer’s liability act. Plaintiff alleges that Parsec negligently controlled a double track saddle crane and caused it to collide with the truck that Plaintiff rode as a passenger, causing him injuries. 

On May 31, 2023, Plaintiff filed a motion to compel Defendants to produce documents at trial. On July 24, 2023, the Court denied Plaintiff’s motion.

On or about September 7, 2023, Plaintiff issued a subpoena directed to Michael Fabrega, one of Defendants’ attorneys, requiring Mr. Fabrega to appear at trial and produce: “(1) All videos/films and still photographs of any surveillance of Plaintiff conducted since the date of the subject Incident of June 11, 2021” and “(2) One copy of each surveillance report or other surveillance documents and surveillance materials pertaining to any surveillance of Plaintiff conducted since the date of the subject incident of June 11, 2021.”  (Febrega Decl., ¶ 11 & Exh. A.)

On October 2, 2023, Defendants filed the instant motion to quash the subpoena.  Plaintiff filed an opposition on November 3, and Defendants filed a reply on November 9,

Legal Standard 

Code of Civil Procedure section 1985 provides for the issuance of a subpoena compelling a witness to appear for a legal proceeding and, if requested, to bring documents to the proceeding.  (Code Civ. Proc., § 1985, subd. (a).)  A subpoena is the only procedure for compelling a third-party witness to attend trial and produce documents; a subpoena may also be used for a party, as an alternative to a Notice to Appear or Notice to Produce under Code of Civil Procedure 1987.

Subdivision (b) of section 1985 provides:

“A copy of an affidavit shall be served with a subpoena duces tecum issues before trial, showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control.”

(Code Civ. Proc., § 1985, subd. (b).)

Discussion

Defendants move to quash the subpoena issued to Mr. Fabrega, arguing (among other things) that he is not the custodian of any of the requested records, that the subpoena identifies the wrong date of the accident; that the subpoena does not specify the matters to be produced with sufficient specificity; that the subpoena and its attachments do not establish materiality, as required; that it is generally improper to subpoena an attorney involved in litigation, except in unusual or extreme circumstances; and that the records at issue need not be produced because they relate solely to impeachment.

The Court begins with the issue of specificity.  The Court notes that in July, it denied Plaintiff’s motion to compel Defendants to comply with a Notice to Produce under Code of Civil Procedure section 1987, concluding that Plaintiff’s request for general categories of documents did not meet the statutory requirement of identifying the “exact materials or things desired,” as set forth in subdivision (c) of section 1987.

Plaintiff now proceeds with a subpoena under Code of Civil Procedure section 1985, but section 1985 contains the same language that appears in section 1987.  A subpoena duces tecum must specify the “exact materials or things desired.”  (Code Civ. Proc., § 1985, subd. (b).)  The Court is aware of no reason to interpret these same words in section 1985 differently than the way they are interpreted in section 1987.

Here, the subpoena issued by Plaintiff contains two requests for the production of records.  Request No. 1 requests “all videos” or “films” of “any surveillance of Plaintiff” conducted during a certain time period.  (Febrega Decl., Exh. A, Attachment 2.)  Request No. 2 requests a copy of each “report” or “other surveillance documents” and “surveillance materials” that pertain to “any surveillance of Plaintiff” conducted during a certain time period.  (Ibid.)  These requests are deficient.  Just as was true with Plaintiff’s Notice to Produce, the subpoena he has issued describes documents by category rather than specifying the exact materials or things desired to be produced. 

The Court need not reach, and does not reach, Defendants’ other arguments.  The motion to quash the subpoena is GRANTED.

Conclusion

Defendants’ motion to quash the subpoena issued by Plaintiff to Michael Fabrega and bearing a date of issue of September 7, 2023, is GRANTED.  The subpoena is ORDERED QUASHED.

Defendants are ordered to give notice of the ruling.