Judge: Walter P. Schwarm, Case: 30-2021-01230485, Date: 2022-07-26 Tentative Ruling

Defendants’ (William Tanner, Sandford Parke, and Catalyst Investment Solutions, Inc.) Motion to Quash Deposition Subpoenas (Motion), filed on 2-28-22 under ROA No. 33, is DENIED.

Code of Civil Procedure section 1987.1 states, in part, “(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, 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), 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 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. [¶] (b) The following persons may make a motion pursuant to subdivision (a): [¶] (1) A party. [¶] (2) A witness. . . .”

The Motion seeks to quash the deposition subpoenas issued to the Orange County District Attorney’s Office (OCDA) and the Office of the Inspector General OIG) based on their 5^th Amendment rights due to a pending criminal case. (Motion 2:1-7 and 4:20-27; Spencer Decl., ¶ 8 and Exhibits D and E.)  The Motion states, “The request for the OCDA and OIG files will necessarily include privileged and confidential information to which Plaintiff is not entitled.” (Motion; 5:18-19.)

First, the court notes that the deposition subpoenas do not seek to compel Defendants to produce the information sought by the deposition subpoenas.  Izazaga v. Superior Court (1991) 54 Cal.3d 355, 366 (Izazaga), states, “Moreover, petitioner's argument misinterprets the scope of the self-incrimination clause, which ‘protects a person only against being incriminated by his own compelled testimonial communications.’ [Citation.]” (Italics in Izazaga.)  Even though the deposition subpoenas seek potentially incriminating evidence from the OCDA and the OIG, the deposition subpoena seek production from the OCDA and OIG and not Defendants.

Second, although the information sought from the OCDA and OIG may be confidential under County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, 764-765 (County of Orange), Defendants do not have standing to assert the Evidence Code section 1040 privilege.  Evidence Code section 1040 states in part, “(a) As used in this section, ‘official information’ means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made. [¶] (b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and either of the following apply: . . .”  Defendants do not have the authority to assert the Evidence Code section 1040 privilege on behalf of the OCDA or OIG.

Based on the above, the court DENIES Defendants’ (William Tanner, Sandford Parke, and Catalyst Investment Solutions, Inc.) Motion to Quash Deposition Subpoenas filed on 2-28-22 under ROA No. 33.

Plaintiff (Community Legal Aid SoCal, Inc) is to give notice.