MANFREDI v. LAKELAND VILLAGE OWNERS ASSN., ET AL.

1 The court notes there is no meet and confer requirement before filing a motion to

quash under Code of Civil Procedure section 1987.1.

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The court overrules plaintiffs’ objection. Neither of these arguments are new

material raised for the first time in defendants’ reply brief. The first issue rebuts

plaintiffs’ opposition argument that defendants’ discovery responses were insufficient.

The second issue, regarding temporal proximity, was raised in defendants’ opening

brief, albeit defendants did not specifically note the years 2019 or 2022. Defendants’

opening brief challenges the subpoena, in part, on the grounds that it is overbroad and

unduly burdensome, as it seeks categories of documents “spanning multiple years.”

(Mtn. at 8:13.) Therefore, plaintiffs were put on notice that defendants were challenging

the subpoena, in part, based on temporal proximity.

2. Legal Principles

“If a subpoena requires ... the production of books, documents, electronically stored

information, or other things ... at the taking of a deposition, the court, upon motion

reasonably made by any person described in subdivision (b) [including a party to the

action], ... 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, subds. (a), (b).)

3. Discussion

3.1. Procedural Defects

The subpoena fails to identify the name of the deposition officer. (Code Civ. Proc.,

§ 2020.420.) Instead, the subpoena states, “Not applicable – records only subpoena to

Evidence Code Sec. 1560.” The default rule under Code of Civil Procedure

section 2020.430, subdivision (a) is that the custodian of records shall deliver the

requested records and affidavit of compliance to the deposition officer specified in the

subpoena. This rule does not apply if the subpoena directs the deponent to make the

records available for inspection or copying at the witness’s business address under

Evidence Code section 1560, subdivision (e). (Code Civ. Proc., § 2020.430, subd. (e).) In

this case, however, Paragraph 1 of the subpoena does not direct the deponent to make

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the records available for inspection or copying at the witness’s business address; in fact,

the subpoena does not specify any method of production.

Next, the subpoena fails to identify the date of production. (Code Civ. Proc.,

§ 2020.410, subd. (b).) Rather, the subpoena states production shall be made “20 days

after service.”

Attachment 3 to the subpoena, which identifies the records to be produced, fails to

“designate the business records to be produced either by specifically describing each

individual item or by reasonably particularizing each category of item.” (Code Civ. Proc.,

§ 2020.410, subd. (a).) It is not reasonable to describe documents by categories which

require the responding party to determine (at risk of sanctions) which of its extensive

records fit a demand that asks for everything in its possession relating to a specific topic.

(See Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 222.)

Virtually all of the requests in Attachment 3 request documents in the witness’s

possession relating to various topics. The court includes the first three requests below

(with emphasis added) for illustration:

1. Produce all non-privileged engagement letters, retention agreements, or written

confirmations of representation prepared by or transmitted to Baydaline &

Jacobsen LLP that memorialize the engagement of Baydaline & Jacobsen LLP by

Lakeland Village Owners Association (“LVOA”), The Helsing Group, Inc., or any

individual LVOA Board member, limited to documents that identify (a) the client

entity or individual, (b) the effective date of the engagement, and (c) the stated

scope of representation.

2. Produce all non-privileged documents prepared by or transmitted to Baydaline &

Jacobsen LLP for any matter involving Lakeland Village Owners Association,

limited to documents that state whether the retention was by LVOA, an

insurance carrier, or another third party.

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3. Produce all non-privileged documents prepared by or transmitted to Baydaline &

Jacobsen LLP that identify the person or entity responsible for payment of

Baydaline & Jacobsen LLP’s legal fees or costs in any LVOA-related matter,

limited to documents that state whether payment was insurer-funded, owner-

funded, self-funded by LVOA, or paid by another third party.

Similar to Calcor Space Facility, the burden is sought to be imposed on Baydaline to

search its extensive files to see what it can find to fit plaintiffs’ definitions, instructions

and categories. (Calcor Space Facility, supra, 53 Cal.App.4th at p. 222.) This does not

constitute “reasonable” particularity. (Ibid.)

Lastly, the court notes that the subpoena requests records pertaining to consumers

(e.g., unnamed insurance carriers and unnamed third parties). Yet, there is no proof of

service of notice to the consumers, as required under Code of Civil Procedure

section 1985.3, subdivision (c)(2).

3.2. Substantive Defects

In addition to the procedural defects outlined above, defendants argue that the

subpoena is overbroad and unduly burdensome, especially where it seeks to obtain

documents protected by the attorney-client privilege, the attorney work-product

doctrine, and the right of privacy.

Plaintiffs’ counter that the subpoena limits the requests to “all non-privileged”

documents. But defendants’ argument, essentially, is that there are no non-privileged

documents responsive to the requests. Plaintiffs claim that, under Code of Civil

Procedure section 2031.240, defendants are obligated to produce a privilege log to

establish the claims of attorney-work product and attorney-client privilege. (Opp.

at 19:2–3.) That code section, however, applies to a party’s response to a demand for

production of documents under Code of Civil Procedure section 2031.010, et seq. Code

of Civil Procedure section 1987.1, governing the instant motion to quash, does not

require the party challenging the subpoena to produce a privilege log.

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The court finds that a majority, if not all, of the requests call for privileged

documents, even though the requests state they are expressly limited to non-privileged

documents. Therefore, the court grants the motion to quash in its entirety. (Code Civ.

Proc., § 1987.1, subd. (a).)

The court briefly addresses some of the parties’ remaining arguments.

Citing to Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487,

defendants argue that discovery directed to opposing counsel is permitted only in

limited circumstances. Although Baydaline is general counsel for LVOA (and LVOA is an

opposing party), Baydaline is not “opposing counsel” as contemplated by the Spectra-

Physics court, because Baydaline is not LVOA’s attorney of record in the instant

litigation.

Plaintiffs argue that no other means exist to obtain the documents requested from

Baydaline because “every defendant produced zero documents [in response to written

discovery] and every defendant identified ‘Association records’ as the source of

responsive information.” (Opp. at 10:20–22.) As defendants’ correctly point out, the

Civil Discovery Act authorizes the propounding party to file a motion to compel further

responses where the response is deficient.

Plaintiffs argue that defendants should be judicially estopped from moving to quash

the subpoena because it is inconsistent with the position defendants took in response to

plaintiffs’ written discovery, wherein defendants allegedly stated that responsive

information is contained in “Association records” or is “equally available to Plaintiffs

through discovery directed to the Association or other parties.” However, these are not

inconsistent positions.

3.3. Sanctions

Subject to an exception not applicable here, section 1987.2 provides that, “in making

an order pursuant to motion made ... under Section 1987.1, the court may in its

discretion award the amount of the reasonable expenses incurred in making or

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opposing the motion, including reasonable attorney’s fees, if the court finds the motion

was made or opposed in bad faith or without substantial justification or that one or

more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2,

subd. (a).)

The court declines to impose sanctions as requested. The court does not find that

plaintiffs opposed the motion in bad faith or without substantial justification. Although

one or more of the requirements of the subpoena may have been oppressive, the court

finds that quashing the subpoena in its entirety is sufficient relief in this case.

TENTATIVE RULING # 1: DEFENDANTS’ MOTION TO QUASH PLAINTIFFS’ SUBPOENA

DIRECTED TO BAYDALINE & JACOBSON LLP IS GRANTED IN ITS ENTIRETY. HOWEVER,

THE COURT DECLINES TO IMPOSE SANCTIONS. NO HEARING ON THIS MATTER WILL BE

HELD (LEWIS v. SUPERIOR COURT (1999) 19 CAL.4TH 1232, 1247), UNLESS A NOTICE OF

INTENT TO APPEAR AND REQUEST FOR ORAL ARGUMENT IS TRANSMITTED

ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT

AT (530) 573-3042 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED.

NOTICE TO ALL PARTIES OF AN INTENT TO APPEAR MUST BE MADE BY TELEPHONE OR

IN PERSON. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE

HEARING.