Judge: Thomas D. Long, Case: 20STCV44732, Date: 2022-11-15 Tentative Ruling

Case Number: 20STCV44732    Hearing Date: November 15, 2022    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On August 5, 2021, Plaintiff Xing Wu filed a second amended complaint (“SAC”) against Defendants Roseann Frazee and Frazee Law Group (collectively, “Defendants”), and Defendant Karen B. Miller, alleging legal malpractice during their representation of him in Jennifer Peiying Lin, et al. vs. Xing Wu, et al. (Riverside County, No. RIC1719974) (“Riverside Action”).  (See SAC ¶¶ 12-19; Baris Decl. ¶ 3.)

On July 26, 2022, Defendants served a subpoena for production of business records (“Document Subpoena”) on non-party William Niu, who represented the plaintiffs in the Riverside Action.  (Baris Decl. ¶¶ 3, 9 & Exs. F-G.)  On August 12, 2022, Niu served objections.  (Baris Decl. ¶ 11 & Ex. I.)

On August 15, 2022, Defendant served a deposition subpoena for personal appearance and production of documents (“Deposition Subpoena”) on Niu.  (Baris Decl. ¶ 13 & Exs. J-K.)  On August 29, 2022, Niu served objections.  (Baris Decl. ¶ 14 & Ex. L.)

On September 3, 2022 and October 4, 2022, Defendants sent meet-and-confer letters to Niu via email.  (Baris Decl. ¶¶ 15-16 & Exs. M-N.)  As of October 17, 2022, Nui has not responded.  (Baris Decl. ¶¶ 15-17.)

On October 17, 2022, Defendants filed a motion to enforce the Document Subpoena and Deposition Subpoena.  No oppositions were filed.

PROCEDURAL CONSIDERATIONS

Defendants did not meet and confer with Niu by telephone or videoconference to resolve or narrow further discovery disputes, which is required by Department 48’s procedures that are available in the Courtroom Information posted on the Court’s website.  Defendants also did not schedule an Informal Discovery Conference before filing the motion, which is also required.

Defendants filed a single motion for the Document Subpoena and Deposition Subpoena.  Defendants were required to file two motions, one for each of the type of discovery and to pay two filing fees.  Defendants are now ordered to pay a second filing fee.

Defendants’ motion does not include the required separate statement.  (California Rules of Court, rule 3.1345.)

DISCUSSION

A deposition subpoena may command only the production of business records without attendance at a deposition from a non-party.  (Code Civ. Proc., § 2020.020, subd. (b).)  If a deponent fails to produce the requested documents, the party seeking discovery may move for an order compelling that answer or production.  (Code Civ. Proc., § 2025.480, subd. (a).)  A subpoena for a deposition of a non-party is enforceable by a motion to compel compliance brought pursuant to Code of Civil Procedure section 1987.1.

The two subpoenas seek a total of twenty-six categories of documents, and Defendants represent that “the vast majority of these categories merely seek the same documents with respect to differing parties” from the Riverside Action.  (Motion at p. 8.)

The Document Subpoena and Document Subpoena seek (1) all non-attorney-client privileged documents pertaining to the Riverside Action, including court filings, documents lodged with the court, pleadings, discovery, depositions, law and motion, memos, notes, settlement documents, and correspondence; (2) all documents reflecting communications between Niu and Miller pertaining to the Riverside Action; (3) all documents reflecting communications between Niu and Defendants pertaining to the Riverside Action; (4) all non-attorney-client privileged documents reflecting communications between Niu and any attorneys pertaining to the Riverside Action; (5) all documents reflecting communications between Niu and expert witnesses pertaining to the Riverside Action; (6) all evidence introduced during trial in the Riverside Action; (7) all documents admitted into evidence during trial in the Riverside Action; (8) all documents lodged with or submitted to the court in the Riverside Action; (9) all documents pertaining to the current location and contact information of the plaintiff in the Riverside Action; and (10) all documents showing that Plaintiff and other defendants in the Riverside Action did the conduct alleged in the Riverside Action.  (Baris Decl., Exs. F, J.)

Niu objected, in part, that the request was overbroad, was burdensome, seeks items already in Defendants’ possession, seeks attorney work product, seeks items protected by the attorney-client privilege, and seeks to have Niu reveal the legal strategy in the Riverside Action, which is currently on appeal.  (Baris Decl., Exs. I, L.)

Defendants contend that Niu “had extensive involvement with the Underlying Action including but not limited to interactions with counsel for Mr. Wu therein,” and he “was not only significantly involved in the [Riverside] Action but, more importantly, also engaged in communications not only with Mr. Wu’s first counsel therein, Karen Miller, but also with these moving defendants.”  (Baris Decl. ¶¶ 4, 8.)  Defendants argue that the documents sought are material and relevant to this action, and they “have the right to conduct discovery to address, among other things, Mr. Niu’s involvement in the [Riverside] Action including but not limited to the communications” with Miller and Defendants.  (Motion at pp. 7-8.)

Defendants have not shown the relevance or materiality of the requested documents, and they have not shown that the requests are reasonably calculated to lead to the discovery of admissible evidence.  The SAC alleges that Defendants negligently represented Plaintiff as the defendant in the Riverside Action.  Niu’s representation of the plaintiff in the Riverside Action is not relevant to Defendants’ representation of their client.  Any communications between Niu and Miller or Defendants should also be in their possession.  Trial documents and evidence admitted at trial should also be equally available to Defendants, who served as trial counsel in the Riverside Action.  (See SAC ¶¶ 31, 36, 47, 64.)  For the documents that are not equally available to Defendants, many requests seek documents that are attorney work product.  Accordingly, although he did not oppose this motion, Niu’s objections are well-taken.

CONCLUSION

The motion is DENIED.

Defendants are ordered to pay a second filing fee within 5 days.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 15th day of November 2022