Judge Theresa M. Traber, Case BC717200 2022-12-19 Tentative Ruling

Judge: Theresa M. Traber, Case: BC717200, Date: 2022-12-19 Tentative Ruling

Case Number: BC717200 Hearing Date: December 19, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: December 19, 2022 TRIAL DATE: January 1, 2023

CASE: Yoav Botach et al. v Newmark of Southern California, Inc., et al.

CASE NO.: BC717200

MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF DOCUMENTS OR, IN THE ALTERNATIVE, FOR PROTECTIVE ORDER

MOVING PARTY: Defendant Gibran Begum.

RESPONDING PARTY(S): Plaintiff Estate of Yoav Botach

CASE HISTORY:

08/09/18: Complaint filed.
01/10/22: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that Defendants conspired to induce Plaintiff Yoav Botach to sell the Garfield Building at 403 W. 8th Street, Los Angeles, CA (hereafter “the subject property”) to sell the subject property to Kyriakos Kerry Bonnis for well below its listed price. Plaintiffs allege causes of action for breach of fiduciary duty, fraud, declaratory relief, financial elder abuse, and negligence.

Defendant Gibran Begum moves to quash a deposition subpoena for production of documents, or, in the alternative, for a protective order.

TENTATIVE RULING:

Defendant’s Motion to Quash the Subpoena for Production of Documents is DENIED.

Defendant’s alternative Motion for a Protective Order is DENIED.

Both parties’ Requests for Sanctions are DENIED.

DISCUSSION:

Defendant Gibran Begum moves to quash a deposition subpoena for production of documents, or, in the alternative, for a protective order.

Legal Standard

Code of Civil Procedure section 1987.1 governs subpoenas as follows:

If a subpoena requires the attendance of a witness or the production of books, documents, 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(a).)

There is no meet and confer requirement set forth in Code of Civil Procedure section 1987.1. However, there is a separate statement requirement:

(a) Separate statement required

Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:

. . .

(5) To compel or to quash the production of documents or tangible things at a deposition . . . .

(Cal. Rule of Court 3.1345(a)(5) (bold emphasis added.) This separate statement must set forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled and meet the other requirements of Rule of Court 3.1345(c) and (d).

Code of Civil Procedure section 2025.420, which governs requests for protective orders, provides, in relevant part:

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

. . .

(10) That the scope of the examination be limited to certain matters.

(Code Civ. Proc. § 2025.420(a); (b)(10).) There is a meet and confer requirement for a motion for a protective order.

Meet and Confer

Before filing a motion for a protective order, Defendant is required to file a declaration stating its efforts to meet and confer with the opposing party to resolve this dispute, showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc. § 2016.040.)

Defendant filed a declaration stating that Defendant reached out to Plaintiff’s counsel by email to meet and confer concerning the subpoena but received no response. (Declaration of Thomas J. Kearney ISO Mot. ¶ 4, Exh. B.) Defendant has therefore complied with the statutory meet and confer requirement.

Analysis

Defendant Gibran Begum moves to quash a deposition subpoena for production of documents, or, in the alternative, for a protective order. Defendant contends that the subpoena should be quashed, or, in the alternative, a protective order should be entered narrowing the scope of the request, on the basis that the documents sought constitute an invasion of Defendant’s privacy.

In ruling on a privacy objection in the context of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.)

If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure may serve. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling need” simply because discovery of any facially private information is sought. (Id. at 556-557.) When a privacy interest is asserted, the party seeking production must show that the information sought is directly relevant to a cause of action or a defense. (Harris v. Superior Court (Smets) (1992) 3 Cal.App.4th 661, 665, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859-62.)

Defendant improperly argues that Plaintiff must demonstrate a compelling need for discovery of private documents. However, as Plaintiff states in opposition, that requirement, as articulated in Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 524, was overruled by the California Supreme Court in 2017. (Williams, supra, 3 Cal. 5th at 557.) The burden therefore rests on Defendant to demonstrate a legally protected privacy interest, an objectively reasonable expectation of privacy under the circumstances, and a serious threatened intrusion. Defendant makes no effort to do so, instead improperly expending his efforts on attempting to demonstrate that Plaintiff cannot articulate a compelling need, while ignoring the requirement that Defendant must first demonstrate a legally protected privacy interest, a reasonable expectation of privacy, and a threatened intrusion that was serious. Defendant has therefore failed to justify these objections.

Sanctions

Both parties seek sanctions against the other. As Defendant is not the prevailing party on this motion, he is not entitled to sanctions. Further, although Plaintiff also requests sanctions, Plaintiff does not cite a statutory basis for the request and does not specify whether sanctions are demanded against Defendant, Defendant’s counsel, or both. The Court therefore declines to award sanctions on this motion.

CONCLUSION:

Accordingly, Defendant’s Motion to Quash the Subpoena for Production of Documents is DENIED.

Defendant’s alternative Motion for a Protective Order is DENIED.

Both parties’ Requests for Sanctions are DENIED.

Moving party to give notice.

IT IS SO ORDERED.

Dated: December 19, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@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.