Judge Yolanda Orozco, Case 21STCV15500 2023-02-03 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV15500, Date: 2023-02-03 Tentative Ruling

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Case Number: 21STCV15500 Hearing Date: February 3, 2023 Dept: 31

MOTION TO COMPEL FURTHER RESPONSE TO DEPOSITION SUBPOENA

TENTATIVE RULING

Plaintiff’s Motion to Compel Further Responses to Deposition subpoena for Personal Appearance and Production of Documents and Things to Custodian of Records for International Longshore and Warehouse Union Local 13 (ILWU Local 13) and Sanctions against ILWU Local 13 is DENIED as the Motion is untimely.

Background

On April 23, 2021, Plaintiff Harbor Performance Enhancement Center, LLC (“Plaintiff”) filed the instant action against Defendants City of Los Angeles Harbor Department (“LA Harbor”) and City of Los Angeles (“City”). The Complaint asserts causes of action for:

1. Breach of Contract;

2. Breach of the Implied Covenant of Good Faith and Fair Dealing; and

3. Declaratory Relief.

It is noted that the parties have engaged in protracted litigation in state and federal court that arises from a series of agreements that detail the development of Plaintiff’s project at the Port of Los Angeles and for providing the framework for final leases. This included an exclusivity agreement that was purportedly amended to extend through the completion of the project. During the course of the project, Plaintiff learned that the Defendants failed to submit that amendment to the Board for further approval, and that they gave entitlement to the project site to the International Longshore and Warehouse Union (“ILWU”).

In May 2019, Plaintiff’s rights in the project were terminated. On June 17, 2019, Plaintiff filed a petition for writ of mandate in the Los Angeles Superior Court for a determination that the termination was invalid. Thereafter, on April 7, 2020, Plaintiff filed a complaint in federal court in order to bring a claim for damages against the Defendants, the ILWU, and its local chapter and dismissed the writ proceedings. In the federal proceedings, Plaintiff alleged claims arising under the federal antitrust and labor law as well as breach of several of the parties’ agreements. However, without ever reaching the merits, the federal district court dismissed the action and declined to take supplemental jurisdiction over Plaintiff’s state law claims. In response, Plaintiff appealed the dismissal orders to the Ninth Circuit and filed a complaint for its state law claims in state court.

On November 10, 2022, Plaintiff moved to compel Non-Party International Longshore and Warehouse Union Local 13 (“ILWU”) to provide further responses to the deposition subpoena for personal appearance and production of documents and things.

ILWU filed opposing papers on January 23, 2023.

On January 26, 2023, Plaintiff filed a reply.

Legal Standard

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)

Judicial Notice

Plaintiff’s request for Judicial Notice is DENIED as it is irrelevant to the deposition of this motion.

Although a court may judicially notice a variety of matters (Evid. Code, §¿450 et seq.), only relevant material may be noticed” (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7.)

Evidentiary Objections

The Court declines to rule on the Plaintiff’s and ILWU Local 13’s evidentiary objections because they are irrelevant to the deposition of this Motion.

Discussion

Timeline of Discovery Dispute

Plaintiff seeks the following orders:

(1) An order compelling nonparty International Longshore and Warehouse Union Local 13 (“ILWU Local 13”) to produce all electronic documents and messages in native format with metadata that are responsive to requests for production contained in the Deposition Subpoena for Personal Appearance and Production of Documents and Things Plaintiff personally served on the Custodian of Records for ILWU Local 13 on June 10, 2021 (the “Subpoena”) by conducting searches of all devices used to conduct ILWU Local 13 business, including but not limited to business and personal email accounts and cell phones, by the custodians Mark Mendoza, Ray Familathe, Ramon Ponce De Leon, Gary Herrera, Jesse Enriquez, Mark Williams, Victor Hudak, Irene Huerta, Mondo Porras and Bobby Olvera, Jr. (the “Custodians”) using the search terms “HPEC” OR “HPAC” OR “Harbor Performance” OR “Rosenthal” OR “Pilot Study” OR “Pilot Project” (dray! /10 LAXT OR Customs OR Custom) OR (chassis /10 LAXT or Customs or Custom) OR (board OR Arian OR Seroka OR drayage OR LAXT OR Sharma /10 strike or picket or slowdown or war) and provide a privilege log listing any privileged communications withheld from production;

(2) An order compelling the ILWU Local 13 to amend its written response to the Subpoena to affirm that all documents in the demanded category that are in the ILWU Local 13’s possession, custody or control will be included in the production (except as to those Requests that are not the subject of this motion);

(3) An order compelling ILWU Local 13 to produce unredacted versions of its documents and a privilege log for any redactions of material subject to the attorney-client privilege and/or attorney work product doctrine;

(4) An order compelling ILWU Local 13 to produce any cell phones, laptops, cloud storage repositories, iCloud accounts, and any devices in use by the Custodians for the period June 2015 to June 2021 for forensic examination;

(5) An order compelling the Custodian of Records of ILWU Local 13 to appear for a deposition within 30 days of the production of documents pursuant to the Court’s order; and

(6) An order that ILWU Local 13 pay HPEC $10,000 for its reasonable attorneys’ fees within 10 days of the Court’s order.

Plaintiff states it personally served the custodian of records for ILWU Local 13 with a records and testimony subpoena on June 10, 2021, with a production and deposition date of July 16, 2021. (Balabat Decl. ¶ 5, Ex. A; Kesselman Decl. ¶ 6.)

On July 09, 2021, ILWU Local 13 served written responses to the subpoena and objected to producing any documents in response to certain requests but stated it would “conduct a reasonable search for and produce responsive, non-privileged documents.” (Balabat Decl. ¶ 6, Ex. B; Kesselman Decl. ¶ 6.)

By July 23, 3021, ILWU Local 13 had completed production but Plaintiff was not satisfied with ILWU’s response and has engaged in extensive meet and confer efforts to try to resolve the discovery disputes at issue in this instant Motion beginning from July 23, 2021. (Balabat Decl. ¶¶ 7-15,18, Ex. C, D.)

On April 15, 2022, ILWU Local 13 produced another set of responsive documents. (Balabat Decl. ¶ 13.) ILWU Local 13 provided a privilege log and an additional 143 pages of documents on May 17, 2022.

Discovery against Nonparties is Limited

Plaintiff erred in assuming that the discovery methods available against party litigants is the same for nonparties like ILWU. (See Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1039.)

“The discovery methods available against nonparties are more limited, and their procedures more streamlined. ‘While all discovery devices are available against a party, only deposition subpoenas can be directed to a nonparty.... [¶] The distinction between parties and nonparties reflects the notion that, by engaging in litigation, the parties should be subject to the full panoply of discovery devices, while nonparty witnesses should be somewhat protected from the burdensome demands of litigation.’”

(Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1033, citing Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1290 [italics original].)

As explained by the Court of Appeal in Board of Registered Nursing:

“The nonparty discovery statutes establish a one-step process for a nonparty responding to a business records subpoena. Upon receipt of the subpoena, a nonparty must make the production on the date and in the manner specified, unless grounds exist to object or disregard the subpoena. The nonparty's compliance with the subpoena is clear on the date specified for production. It has either produced documents as requested in the subpoena, or not. On that date, the subpoenaing party has all of the information it needs to meet and confer regarding the nonparty's compliance and, if unsatisfied, prepare a motion to compel.

This one-step process minimizes the burden on the nonparty. It may comply (or not) with the subpoena, and it can be confident that its obligations under the subpoena will be swiftly addressed and adjudicated. The one-step process also reflects the reality that the discovery demanded from a nonparty will generally be more limited, and consequently less subject to lengthy dispute, than discovery demanded from a party.”

(Board of Registered Nursing, supra, Cal.App.5th at 1033.)

The one-step process for discovery from nonparties is in contrast to the two-step discovery process permitted for parties to the litigation that allows for motions to compel further responses. (See Board of Registered Nursing, supra, Cal.App.5th at 1033.)

Plaintiff’s Motion is Untimely

Code of Civil Procedure section 2020.010 permits discovery to be obtained from a nonparty through an oral deposition, written deposition, or a deposition for the production of business records and things. “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.” (Code Civ. Proc., § 2025.480, subd. (a).) Section 2025.480 also establishes a 60-day deadline to file a motion to compel an answer or production. (Code Civ. Proc., 2025.480, subd. (b); see also Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192.)

Here, the 60-day deadline to file this Motion began on either July 23, 2021 when ILWU Local 13 produced documents based on the initial subpoena request, or on May 17, 2022, when ILWU Local 13 asserted it had completed production of all documents. If the latter deadline applies, Plaintiff had until about July 16, 2022, to file the instant Motion.

“A nonparty must comply (or not) with the subpoena on the date specified for production. If a party is not satisfied with the nonparty's compliance, the party has 60 days in which to meet and confer with the nonparty. These meet and confer efforts do not affect the mandatory 60-day deadline. The meet and confer process is part of the 60-day period in which to file a motion; it does not extend it.”

(Board of Registered Nursing, supra, Cal.App.5th at 1034).

Since May 17, 2022, appears to be the last date that production on the business subpoena was completed, regardless of Plaintiff’s continuous meet and confer efforts with ILWU Local 13, the 60-day deadline to file this Motion has passed and this Motion is untimely.

Accordingly, this Motion and Plaintiff’s request for sanctions is DENIED.

Conclusion

Plaintiff to give notice.