Judge Yolanda Orozco, Case 19STCV10435 2023-03-20 Tentative Ruling

Judge: Yolanda Orozco, Case: 19STCV10435, Date: 2023-03-20 Tentative Ruling

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Case Number: 19STCV10435 Hearing Date: March 20, 2023 Dept: 31

MOTIONs TO QUASH PLAINTIFF’S DEPOSITION subpoenas as TO NON-PARties CBS Studios, Inc and jerry bruckheimer television

TENTATIVE RULING

The Court GRANTS IN PART the Motion to Quash the Deposition Subpoenas of Non-parties’ (1) CBS Studios, Inc. and (2) Jerry Bruckheimer Television as to request No. 19 and DENIES the Motion as to the other requests for production of documents.

Background

On March 26, 2019, Plaintiff John Musero filed the instant action against Defendants Creative Artists Agency, LLC (“CAA”); Andrew Miller; Leah Yerushalaim; and Does 1 to 10.

The operative First Amended Complaint (FAC) asserts causes of action for:

1) Breach of Fiduciary Duty and Confidentiality;

2) Breach of Contract; and

3) Breach of Implied Covenant of Good Faith and Fair Dealing.

Plaintiff is a professional television writer and was represented by Defendant CAA through Defendants Miller and Yerushalaim of CAA’s television literary department beginning in June of 2014. Plaintiff alleges that Defendants breached their fiduciary duties and duty of confidentiality in their provision of services to Plaintiff as his agents and also breached their contract with Plaintiff by, among other things, allegedly misappropriating Plaintiff’s new original television pilot entitled Main Justice by developing it with Jerry Bruckheimer and writer Sasha Penn.

On February 14, 2023, Defendant CAA filed a Motion to Quash Plaintiff’s Deposition Subpoena as to Non-Parties CBS Studios Inc. and Jerry Bruckheimer Television.

On February 28, 2023, Defendant CAA filed a notice of partial withdrawal of the motion on the Subpoena for Production of Business Records of CBS Studios Inc. and Jerry Bruckheimer Television as to Request for Production No. 21.

Plaintiff filed opposing papers on February 29, 2023.

Defendant CAA filed a reply on March 06, 2023.

Legal Standard

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. (Code Civ. Proc., § 1987.1, subd. (a).)¿

A motion to quash production of documents pursuant to a deposition subpoena must be accompanied by a separate statement setting forth the inspection demand at issue and the factual and legal reasons why production should not be compelled. (See Cal. Rules of Court, rule 3.1345 subd. (a)(5).)

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition for production of business records.¿ (Code Civ. Proc., § 2020.010.)¿

Code of Civil Procedure section 2025.480 provides, in the relevant party:

“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.”

(Code Civ. Proc., § 2025.480)

Discussion

Relevance

Plaintiff alleges that Defendants misappropriated his “Main Justice” project by redeveloping it with Jerry Bruckheimer and writer Sasha Penn who later sold the project to CBS. (Compl. ¶¶ 43-45.) Plaintiff now seeks documents related to the development and production of “Main Justice” from Non-Parties CBS Studios Inc. and Jerry Bruckheimer Television (collectively “non-parties”). The Court agrees that any communications between Defendants concerning the production, development, and creation of Sacha Penn’s “Main Justice” are relevant to this action.

“In establishing the statutory methods of obtaining discovery, it was the intent of the Legislature that discovery be allowed whenever consistent with justice and public policy. [Citation] The statutory provisions must be liberally construed in favor of discovery and the courts must not extend the statutory limitations upon discovery beyond the limits expressed by the Legislature.” (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 738–739.)

Defendants fail to specify any facts or point to specific requests that show that the documents sought are not relevant to Plaintiff’s action. Accordingly, the subpoenas will not be quashed on the ground that the information is not relevant and unlikely to lead to the discovery of admissible evidence.

Privacy Concerns

Defendants object to the non-party subpoenas on the basis that the subpoenas will violate the privacy rights of Defendants, non-parties, and third parties.

First, corporations do not have a constitutional right to privacy. (See SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 755-756.) Defendants don’t explain how a protective order would be insufficient to protect the privacy interests of Defendants, non-parties, and third-parties.

“The constitutional right of privacy does not provide absolute protection ‘but may yield in the furtherance of compelling state interests.’ [Citation.] ‘Courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.’ [Citation.] ’In determining whether disclosure is required, the court must indulge in a ‘careful balancing’ of the right of a civil litigant to discover relevant facts, on the one hand, and the right of the third parties to maintain reasonable privacy regarding their sensitive personal affairs, on the other. The court must consider the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure and availability of alternative, less intrusive means for obtaining the requested information. Based on an application of these factors, the more sensitive the nature of the personal information that is sought to be discovered, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted.’ [Citation].”

(SCC Acquisitions, Inc., supra, 243 Cal.App.4th at 754–755 [internal citations and quotations omitted].)

The Court is not convinced that the privacy concerns at issue involve “disclosure of private or personal information” that “extends to one's confidential financial affairs as well as to the details of one's personal life.” (SCC Acquisitions, Inc., supra, 243 Cal.App.4th at 754.)

When evaluating invasions of the right to privacy in discovery, the party asserting a privacy right must establish “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 26 Cal.Rptr.2d 834, 865.)

Defendants fails to state facts that the communications involving the development of “Main Justice” implicate a legally protected privacy interest. The fact that financial information will be disclosed related to the development of “Main Justice,” does not establish that the information is “sensitive” or “private” and not discoverable. CBS may seek a protective order to protect the disclosure of such information but may not shield such information from discovery unless it is privileged.

Therefore, the subpoena will not be quashed on the basis that it invades the privacy rights of Defendants and non-parties.

Objection to Subpoenas on the Basis that are they are Overbroad, Unduly Burdensome, and Not Sufficiently Particularized

“The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Code of Civ. Proc. § 2017.020(a).) Generally, objections on the ground of burden require the objecting party to produce evidence of (a) the propounding party’s subjective intent to create burden, or (b) the amount of time and effort it would take to actually respond. (See West Pico Furniture Co. of Los Angeles v. Superior Court However, where discovery is obviously overbroad on its face, no such evidence is necessary. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

Defendants argue the subpoena is overbroad, burdensome, and not sufficiently particularized, within the proper bounds of permissible discovery under Code of Civil Procedure section 2017.010.

The Court does not agree that “All Documents” and “All Communications” including notes, revisions, and discussions pertaining to “Main Justice” or CBS communications about Plaintiff are not sufficiently particularized. Moreover, the Court also does not find that Plaintiff’s request must be temporally particularized because Plaintiff represents that Penn’s “Main Justice” was written in 2017 and 2017 was also when CBS bought “Main Justice” only to pass on the pilot in May of 2018. Accordingly, the time span of any communications between the non-parties is temporally limited and not overly broad.

Defendants also argue the production request is “overly broad” because it “encompass not only the content of the pilot script but also all other CBS projects in development or production at the same time that may have affected the schedules of CBS employees working with Penn.” (Reply at 5:13-15.) However, Defendants fail to point out specific RPD’s which implicate other CBS projects. Moreover, Plaintiff’s request concerns documents related only to or concerning “Penn’s Main Justice.” Although the documents requested is broad, the content of the documents is specifically tied to the development and production of “Main Justice” and is directly relevant to this action.

Nevertheless, the Court agrees that Request No. 19 is overly broad because it seeks “All COMMUNICATIONS between YOU and any PERSON(s) RELATED TO MUSERO.” The Court agrees to quash request 19 from the non-parties’ subpoenas.

As to the other Request for Production, the Court finds that Plaintiff’s subpoena is not overly broad and is sufficiently particularized and denies the motions to quash the non-parties’ subpoenas.

Conclusion

Moving party to give notice.

MOTION TO QUASH PLAINTIFF’S DEPOSITION

AS TO NON-PARY SASCHA PENN

TENTATIVE RULING

The Court CONTINUES the hearing on the Motion to Quash the Deposition Subpoena of Non-Party Sascha Penn to May 25, 2023.

Background

On March 26, 2019, Plaintiff John Musero filed the instant action against Defendants Creative Artists Agency, LLC (“CAA”); Andrew Miller; Leah Yerushalaim; and Does 1 to 10.

The operative First Amended Complaint (FAC) asserts causes of action for:

1) Breach of Fiduciary Duty and Confidentiality;

2) Breach of Contract; and

3) Breach of Implied Covenant of Good Faith and Fair Dealing.

Plaintiff is a professional television writer and was represented by Defendant CAA through Defendants Miller and Yerushalaim of CAA’s television literary department beginning in June of 2014. Plaintiff alleges that Defendants breached their fiduciary duties and duty of confidentiality in their provision of services to Plaintiff as his agents and also breached their contract with Plaintiff by, among other things, allegedly misappropriating Plaintiff’s new original television pilot entitled “Main Justice” by developing it with Jerry Bruckheimer and writer Sascha Penn.

On February 14, 2023, Defendant CAA filed a Motion to Quash Plaintiff’s Deposition Subpoena as to Non-Party Sascha Penn.

On February 28, 2023, Defendant CAA filed a notice of partial withdrawal of the Subpoena for Production of Business Records of Sascha Penn as to Request for Production Nos. 21 and 27.

Plaintiff filed opposing papers on February 29, 2023.

Defendant CAA filed a reply on March 06, 2023.

Legal Standard

Code of Civil Procedure section 2025.480 provides, in the relevant party:

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.”

(Code Civ. Proc., § 2025.480)

Discussion

Defendants Creative Artists Agency, LLC (“CAA”), Andrew Miller, Leah Yerushalaim (collectively “Defendants”) move to Quash the Deposition Subpoena for Production of Business Records to Non-Party Sascha Penn.

For the first time on reply, Defendants ague that subpoena was not personally served on Penn.

The Court may refuse to consider arguments first raised in reply papers, or it may grant the other side time for further briefing. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d 1002, 1010 [“The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before”].)

Code of Civil Procedure section 1987 requires that subpoenas be personally served on the witness. “The personal service requirement for subpoenas found in section 1987, subdivision (a) perpetuates a long-standing rule of state procedure, one that predates even the codification of state law.” (Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 855.)

The Declaration of Defenses Counsel Julian K. Quattlebaum, includes an exhibit of the subpoenas Plaintiff served on several non-parties, including Sacha Penn. (Quattlebaum Decl. ¶ 2, Ex. A.) The Deposition Subpoena shows that it was served on Sacha Penn’s custodian of records, but the proof of service on the subpoena itself is blank and the attached proof of service only shows that it was mailed and electronically served on counsel for Defendants. (See id.)

In In re Abrabs (1980), the Appeal Court explained that while the language of Code of Civil Procedure section 415.10 “permits satisfying the personal service requirement by serving an authorized agent. There is no such language in section 1987 authorizing personal service of a witness subpoena.” (In re Abrams (1980) 108 Cal.App.3d 685, 690.) A strict personal service requirement for civil trial subpoenas has been justified on the ground that disobedience of a ‘duly served’ subpoena represents a form of contempt (§ 1209, subd. (a)(10)), and the potentially severe consequences associated with a contempt finding make it especially important to ensure that a prospective witness knows that he or she has been subpoenaed to testify [Citation].” (Meza, supra, 6 Cal.5th at 855.)

Sascha Penn is a non-party and there are no facts before the Court to find that personal service of the subpoena on Sascha Penn is not required. However, because Defendants raised the issue of service for the first time on reply, the Court CONTINUES the hearing to allow Plaintiff to submit evidence that service was proper or correct the deficiencies in the service of the subpoena on non-party Sascha Penn.

Accordingly, the Court declines to rule on the merits of Defendants Motion until the Court is satisfied that service of the subpoena is proper.

Conclusion

The hearing is CONTINUED to May 25, 2023.

Moving party to give notice.