This is a class action by plaintiff Manny Villanueva (“Plaintiff”), individually and on behalf of other customers of Fidelity National Title Company (“Fidelity”), Fidelity National Title Company of California (“FNTC-CA”), and Fidelity National Title Insurance Company (“FNTIC”). In the operative First Amended Class Action Complaint (“FAC”), Plaintiff alleges that he and the Class paid for escrow services and were charged fees which exceeded those on file with the California Department of Insurance (“CDI”) or which were not allowed to be charged by law. In particular, Plaintiff alleges he and the Class should not have to pay for a “Draw Deed” fee, a “Courier” fee, and an “Overnight Delivery” fee because at the time of their transactions, the fees for these escrow services were not filed by Fidelity with the CDI.

The original Complaint was filed on June 30, 2010 and asserted seven causes of action for: (1) violation of the Unfair Competition Law (“UCL”) (Cal. Bus. & Prof. Code, § 17200); (2) fraud; (3) negligent misrepresentation; (4) negligence; (5) money had and received; (6) unjust enrichment; and (7) breach of fiduciary duty.

On May 6, 2011, the Court sustained Fidelity’s demurrer to the Complaint’s second cause of action for fraud, third cause of action for negligent misrepresentation and fourth cause of action for negligence, with 20 days’ leave to amend.

On May 25, 2011, Plaintiff filed his First Amended Complaint (“FAC”) for: (1) violation of the UCL; (2) fraud; (3) negligent misrepresentation; (4) money had and received; (5) unjust enrichment; and (6) breach of fiduciary duty.

On November 30, 2011, the Court sustained Fidelity’s demurrer to the FAC’s second cause of action for fraud and third cause of action for negligent misrepresentation on the ground of failure to plead these claims with sufficient particularity, with 20 days’ leave to amend. Plaintiff did not file an amended pleading.

On November 8, 2013, the Court granted Fidelity’s motion for judgment on the pleadings against the fourth, fifth, and sixth causes of action on the ground that there is no private right of action under the California Insurance Code to enforce the rate filing requirements of sections 12401.1 and 12401.7 against escrow companies. Plaintiff was given leave to amend but did not file an amended pleading.

Trial is set to begin on March 24, 2014.

I. DISCUSSION

There are four motions currently before the Court: (1) Fidelity’s motion for judgment on the pleadings against Plaintiff’s first cause of action for violation of the UCL; (2) Plaintiff’s motion to bifurcate the issue of class liability from issues relating to the relief to be awarded; (3) non-party Fidelity National Financial, Inc.’s (“FNF”) motion for protective order against Plaintiff’s deposition subpoena; and (4) Plaintiff’s motion to compel FNF to comply with the deposition subpoena.

A. MOTION FOR JUDGMENT ON THE PLEADINGS

Fidelity moves for judgment on the pleadings against Plaintiff’s UCL cause of action on the grounds that he lacks standing because he suffered no injury-in-fact of lost money or property as a result of the alleged statutory violations of California Insurance Code sections 12401.1, 12401.7 and 12414.27. Fidelity further contends that the UCL remedies of restitution and injunctive relief are unavailable to Plaintiff and the Class.

1. Judicial Notice

In support of its motion for judgment on the pleadings, Fidelity requests judicial notice of: (1) Plaintiff’s responses to Fidelity’s Requests for Admission (“RFA”), Set One (Fidelity RJN-Exh. A); (2) Plaintiff’s supplemental responses to Fidelity’s RFA Set Two (Fidelity RJN-Exh. B); (3) Plaintiff’s responses to Fidelity’s RFA Set Three (Fidelity RJN-Exh. C); (4) the Court’s November 8, 2013 Order Re: Application to Appear as Counsel Pro Hac Vice, Motion to Compel Further Testimony and Production of Documents, and Motion for Judgment on the Pleadings (Fidelity RJN-Exh. D); (5) the Court’s July 25, 2013 Order on the Motion for Summary Judgment or, in the Alternative, Summary Adjudication (Fidelity RJN-Exh. E); (6) the Court’s May 6, 2011 Order on Demurrer to Class Action Complaint, adopting the April 28, 2011 tentative ruling (Fidelity RJN-Exh. F); (7) the Court’s February 13, 2013 Nunc Pro Tunc Supplemental Order Granting Class Certification (Fidelity RJN-Exh. G); (8) Plaintiff’s HUD-1 Settlement Statement (Fidelity RJN-Exh. H); (9) Plaintiff’s Borrower/Escrow Instructions, executed May 22, 2006 (Fidelity RJN-Exh. I); (10) Fidelity’s May 22, 2006 Rate Filing with the California Department of Insurance (“CDI”) (Fidelity RJN-Exh. J); and (11) Fidelity’s August 9, 2013 Rate Filing with the CDI (Fidelity RJN-Exh. K).

The request is opposed by Plaintiff. Plaintiff argues the exhibits lack evidentiary foundation to support any fact derived from them. However, with its reply papers, Fidelity submits the declaration of its counsel Michael J. Gleason, who authenticates Exhibits A-H. Fidelity also submits the declaration of Marie Barber, Escrow Operations Manager for Fidelity, who authenticates Exhibits H and I, and the declaration of Johnna Ryan, Fidelity’s Assistant Vice President, Rate and Form Department, who authenticates Exhibits J and K.

Fidelity RJN-Exhibits A-C consist of Plaintiff’s responses to Fidelity’s RFAs. “[A] court may take judicial notice of a party’s admissions or concessions in cases where the admission ‘“cannot reasonably be controverted,”’ such as in answers to interrogatories or requests for admission, or in affidavits and declarations filed on the party’s behalf.” (Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 219, fn. 11, citing Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.) Plaintiff argues the request is overbroad because Fidelity only cites about 17 of the responses. However, with its reply papers, Fidelity agrees to restrict its request to the responses to RFA 6, 10-12, 18, 33, 47, 68, 72, 76-79, 81, 83-85, and 104. The narrowed request for judicial notice is GRANTED.

Fidelity RJN-Exhibits D-G are orders of this Court in this matter and are relevant to the procedural history of the case. Court records are subject to permissible judicial notice under Evidence Code section 452 subdivision (d). The request is GRANTED.

Fidelity RJN-Exhibits H and I are escrow documents executed in connection with Plaintiff’s real estate transaction. Fidelity argues that judicial notice of the existence of these documents is permissible under Evidence Code section 452 subdivision (h) as facts that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. As discussed above, Fidelity sufficiently authenticates the documents with its reply submissions. The Court previously took judicial notice of these records based on an unopposed request. Although Plaintiff now generally opposes the request for judicial notice, he does not actually dispute the authenticity of these documents. Under these circumstances, the request is GRANTED as to the existence of these documents.

Fidelity RJN-Exhibits J and K are Fidelity’s rate filings with the CDI. With its reply papers, Fidelity authenticates that these exhibits are true and correct copies of Fidelity’s rate manuals as part of their rate filings. Documents filed with a governmental agency are judicially noticeable under Evidence Code section 452 subdivision (h) as facts that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (See StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9 [judicial notice of filings with Securities and Exchange Commission under Evid. Code, § 452, subd. (h)].) The request is GRANTED as to the existence of these documents.

In opposition, Plaintiff requests judicial notice of: (1) the Court’s May 5, 2011 Order on Fidelity’s demurrer to the original Complaint (Pltf RJN-Exh. A); (2) the Court’s November 30, 2011 Order on Fidelity’s demurrer to the FAC (Pltf RJN-Exh. B); (3) the Court’s tentative ruling to the November 18, 2011 calendar regarding Fidelity’s demurrer to the FAC (Pltf RJN-C); (4) the Court’s August 8, 2012 Order on Motion for Class Certification (Pltf RJN-D); (5) the Court’s July 25, 2013 on Fidelity’s Motion for Summary Judgment or Alternatively, Summary Adjudication (Pltf RJN-E); (6) Final Judgment filed October 9, 2002 in People of the State of California v. Fidelity National Title Ins. Co., et al., Sacramento Superior Court Case No. 99AS02793 (Pltf RJN-F); (7) the dictionary definition of “escrow”; (8) the dictionary definition of “disburse”; (9) CDI letter to Fidelity dated September 29, 1999 (Pltf RJN-I); and (10) CDI’s “2013 Legal Opinion Regarding Requirement that Third-Party Courier Fees be Included in Rate Filings”, dated November 7, 2013 (Pltf RJN-J).

The request is not opposed as to Plaintiff’s RJN-Exhibits A-F. Exhibits A-E are orders of this Court in this action, and Exhibit F is a judgment of a California Superior Court in a matter involving Fidelity. These court records are judicially noticeable under Evidence Code section 452 subdivision (d). The request is GRANTED as to Plaintiff’s RJN-Exhibits A-F. The dictionary definitions of “escrow” and “disburse” are appropriate matters for judicial notice under Evidence Code section 452 subdivision (h) as facts that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. The request is GRANTED.

Fidelity objects to Plaintiff’s request for judicial notice of the September 29, 1999 letter (Pltf RJN-Exh. I) on the grounds of lack of foundation and authentication. Fidelity also objects to Plaintiff’s request for judicial notice of the truth of matters stated in the CDI’s November 7, 2013 Legal Opinion (Pltf RJN-Exh. J). The September 29, 1999 is authenticated by Plaintiff’s counsel as a document that was produced by Fidelity in this litigation. As for the CDI’s November 7, 2013 Legal Opinion, the existence of this document is judicially noticeable as an official act of an executive department of the State of California. (See Evid. Code, § 452, subd. (c).) Plaintiff does not cite this document for the truth of any facts stated therein, but simply for the stated conclusions and reasoning of the CDI. The request is GRANTED.

2. Parties’ Arguments

Fidelity argues that Plaintiff’s UCL claim fails for lack of “injury in fact” of “lost money or property” caused by the alleged violations of the California Insurance Code. According to Fidelity, Plaintiff does not sufficiently allege an “injury in fact” because he and the Class received the benefit of their bargain (e.g., third party delivery services, deed preparation services) and would be in the exact same position had Fidelity included the terms “passed through” and “draw deed” in its filed rate language. In support, Fidelity relies upon Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583 and Medina v. Safe-Guard Products, Internat., Inc. (2008) 164 Cal.App.4th 105. Fidelity further submits that Plaintiff admitted in discovery that the escrow services provided by Fidelity were satisfactory and disclosed up-front, and Plaintiff admitted he never reviewed the rate manuals, and thus, he had no expectations based on them. Fidelity argues that any causal chain was broken by Fidelity’s up-front disclosures and Plaintiff’s agreement to pay these fees. Fidelity further argues that restitution and injunctive relief – the only remedies available under the UCL – are not available to Plaintiff because he is not seeking the return of money unjustly retained by Fidelity or seeking to restore the status quo, but rather, he is seeking a windfall of free, valuable services that he admittedly received. Because Plaintiff and the Class received their bargained-for services, Fidelity argues they are not entitled to restitution. Fidelity argues they cannot seek injunctive relief because all issues in the lawsuit relate to past events that cannot be enjoined.

In opposition, Plaintiff raises a procedural objection to the motion, arguing that Fidelity improperly seeks reconsideration of issues the Court has already ruled upon in multiple demurrers, a motion for class certification, and a motion for summary adjudication, and there are no new pleadings, facts or circumstances to warrant reconsideration. On the merits of the motion, Plaintiff argues that because the Insurance Code expressly prohibits Fidelity from charging the public fees to perform escrow-related services that are not set out in the rate for such services, the unlawfully charged fees that the public paid to Fidelity constitute lost money, regardless of the value they received in exchange. Plaintiff distinguishes Medina and Peterson as involving the unlawful sale of insurance by an unlicensed vendor, while here, Plaintiff alleges that he and the Class were overcharged for escrow services because Fidelity had no legal right to charge un-filed fees, and because the delivery of payoffs and disbursements were already included in standard escrow fees. According to Plaintiff, the fact that he and the Class received valuable services is immaterial because the bargain they entered into with Fidelity was to obtain escrow services at lawful prices. Plaintiff argues that the UCL authorizes restoration of any money acquired by means of unfair or unlawful business practices, regardless of whether it is retained or passed onto someone else (e.g., third party delivery vendors), and Fidelity’s “pass through” argument says nothing about whether Plaintiff and the Class are entitled to restitution of other fees like draw deed an doc prep fees that Fidlity charged that were not pass-through, nor does it address Plaintiff’s allegations that Fidelity double-charged him and the Class for deliveries that were already included in the set price for escrow services, or up-charged its customers for the third party delivery fees. Plaintiff cites the judicially-noticed Legal Opinion issued by the CDI stating that “[t]hird-party courier fees passed on to a customer are charges to the public and therefore part of the rate.”

In reply, Fidelity argues that Plaintiff’s procedural objection is without merit because this motion for judgment on the pleadings is based on a ground that was not presented before. On the merits, Fidelity argues that Plaintiff’s injury-in-fact arguments fail because he and the Class would be in the same position “but for” FNTC’s alleged non-compliance with the Insurance Code. Fidelity contends that in a true, “but for, compliant world,” FNTC would comply with the cited Insurance Code provisions, and Plaintiff and the Class would still pay for valuable services as disclosed up front, and the only difference would be in the wording of filed rates that no class member read.

3. Analysis

On Plaintiff’s procedural objection, the instant motion is a statutory motion for judgment on the pleadings under California Code of Civil Procedure section 438 subdivision (c)(1)(B)(ii), which provides that a defendant may move for judgment on the pleadings on the ground that “[t]he complaint does not state facts sufficient to constitute a cause of action against that defendant.” The statute goes on to provide that “[t]he motion provided for in this section may be made even though…[t]he moving party has already demurred to the complaint…on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer.” (Cal. Code Civ. Proc., § 438, subd. (g)(1).)

On or about June 27, 2011, Fidelity demurred to the entire FAC on the ground that it failed to state sufficient facts to constitute a cause of action, citing California Code of Civil Procedure section 430.10 subdivision (e). On November 30, 2011, the Court overruled the demurrer as it pertained to the UCL cause of action. The instant motion is once again based on the “ground” that Plaintiff fails to allege sufficient facts to constitute a cause of action under the UCL. That Fidelity challenges the sufficiency of the UCL cause of action on different elements of the UCL (e.g., no injury-in-fact, no causation) does not change the fact that the “grounds as is the basis for the motion” is the exact same statutory ground raised as the basis for Fidelity’s demurrer to the FAC (Cal. Code Civ. Proc., § 430.10, subd. (e) [pleading does not state facts sufficient to constitute cause of action]), with no showing of a material change in applicable case law or statute since the ruling on the demurrer. Thus, Plaintiff’s procedural objection to the motion is well-taken.

The motion also fails on the merits. “A motion for judgment on pleadings is made on the same grounds and decided on the same basis as a general demurrer; judgment on the pleadings will be granted if the complaint on its face fails to state a cause of action. [Citation.]” (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342-343.) “A demurrer tests the sufficiency of the plaintiff’s complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. [Citations.] In determining whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law. [Citations.] The trial court also may consider matters of which it may take judicial notice. [Citations.] A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. [Citations.]” (Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1037-1038.)

Here, the motion is based on requirements of the UCL. “The UCL defines ‘unlawful competition’ to include an ‘unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising … .’ [Citation.] ‘By proscribing “any unlawful” business practice, “[Business & Professions Code] section 17200 ‘borrows’ violations of other laws and treats them as unlawful practices” that the unfair competition law makes independently actionable.’ [Citation.] After the 2004 amendment of the UCL by Proposition 64, a private person has standing to sue only if he or she ‘“has suffered injury in fact and has lost money or property as a result of [such] unfair competition.”’ [Citation.] In the context of a class action, only the class representatives must meet Proposition 64’s standing requirements of actual injury and causation. [Citation.]” (Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1013, original italics.) “The actual payment of money by a plaintiff, as wrongfully required by a defendant, ‘constitute[s] an “injury in fact” for purposes of Business and Professions Code section 17204. [Citations.]’ [Citations.] Causation for UCL standing purposes is satisfied if ‘a causal connection [exists] between the harm suffered and the unlawful business activity.’ [Citation.] However, ‘[t]hat causal connection is broken when a complaining party would suffer the same harm whether or not a defendant complied with the law.’ [Citation.]” (Id., at p. 1014.)

Fidelity’s motion is based on case law finding no UCL standing because the alleged unlawful business practice did not cause customers to part with more money than they otherwise would have. Fidelity argues that in either a “non-compliant, actual world” (where Fidelity violated its duties under the relevant sections of the Insurance Code) or a “but for, compliant world” (where Fidelity was compliant with Plaintiff’s interpretation of the Insurance Code with regard to delivery and document preparation/draw deed services), consumers would have received the same benefit of their bargain with Fidelity for delivery and document preparation services. However, in testing the sufficiency of the UCL cause of action, the Court cannot ignore material allegations of the FAC that Fidelity already charges for delivery services as part of the $250 escrow fee, and that Fidelity’s courier and overnight delivery fees were marked up by Fidelity. Thus, even if consumers bargained for and were willing to pay for delivery services, this does not mean they were willing to pay an inflated amount or twice for the same service. And even if Fidelity filed a rate for third party delivery vendors as “passed through” to consumers, this would not remove the illegality of double charging or inflating the charges as alleged in the FAC. Plaintiff’s admissions in discovery that delivery services were performed to his satisfaction and benefit are reasonably read as pertaining to the quality of the services, not to allegations of double or excessive charges for those services. Fidelity’s arguments regarding the unavailability of UCL remedies are based on the same argument regarding lack of injury-in-fact and causation. If we accept the FAC’s allegations of double charges, then there is a sufficient loss of money by Plaintiff and the Class that Fidelity can be ordered to restore.

For these reasons, the motion for judgment on the pleadings is DENIED.

B. FNF’S MOTION FOR PROTECTIVE ORDER AND PLAINTIFF’S EX PARTE APPLICATION TO COMPEL AGAINST FNF

FNF moves for a protective order against the Deposition Subpoena for Personal Appearance and Production of Documents and Things served by Plaintiff. FNF argues the Subpoena is overbroad and unduly burdensome, and was not properly served.

FNF filed this motion on January 28, 2014. On January 31, 2014, Plaintiff filed an ex parte application to compel FNF to comply with the Subpoena and produce its person most qualified (“PMQ”) to testify and produce documents. At the February 4, 2014 hearing on Plaintiff’s ex parte application, the Court continued the matter and incorporated it with the hearing on FNF’s motion for protective order, scheduled for February 21, 2014.

The Subpoena originally directed FNF to designate a representative to appear for deposition on January 21, 2014 and testify on 7 topics and produce documents in response to 5 document requests. The topics were as follows:

1. The relationship between YOU and Fidelity National Title Company (“Fidelity”) as it concerns policies implemented by Fidelity regarding title and escrow services in California.
2. The relationship between YOU and the title and escrow companies acquired by YOU since 1999 as it concerns policies implemented by those title and escrow companies regarding title and escrow services in California.
3. The manner and extent to which the rate filing policies and practices of YOUR affiliated title and escrow companies, including but not limited to Fidelity, are subject to YOUR review, comment, oversight, and and/or approval.
4. The communications between YOU and the title and escrow companies YOU have acquired since 1999, if any, that concern the California requirements for filing fees for the delivery of escrow documents and/or the disbursement of escrow funds.
5. The communications between YOU and the California Department of Insurance that concern the California requirements for filing fees for the delivery of escrow documents and/or the disbursements of escrow funds in 1999 and thereafter.
6. The changes that have been made since 1999 in the filed rates of the title and escrow companies acquired by YOU, with respect to rates charged in connection with the delivery of escrow documents and/or the disbursement of escrow funds.
7. The implementation of any changes in the policies and practices for including a rate for delivery services in rate manuals filed with the CDI by any title and escrow company after its acquisition by YOU since 1999.

The document requests were as follows:

1. All documents that constitute or concern communications between YOU and any representative or affiliate of any title and escrow company acquired by YOU since 1999, that discuss the California requirements for filing fees for the delivery of escrow documents and/or the disbursement of escrow funds.
2. All documents that constitute or concern communications between YOU and any title or escrow company acquired by YOU, since 1999, in which YOU advised, instructed, directed, required or suggested in any manner that the company change its practices with respect to the filing of rates for delivery fees.
3. All documents that constitute or concern communications between YOU and the CDI, since 1999, that discuss the California requirements for filing fees for the delivery of escrow documents and/or the disbursement of escrow funds.
4. All documents that constitute or concern communications between YOU and Fidelity that concern or relate tot his litigation.
5. All documents that constitute or concern communications between YOU and Fidelity, since 1999, that discuss the California requirements for filing fees for the delivery of escrow documents and/or the disbursement of escrow funds.

On January 23, 2014, FNF served written objections to the Subpoena. The objections contained a section of general objections to the topics and document requests on various grounds, including: not reasonably limited as to time or scope, overbroad, vague, ambiguous, unintelligible, unduly burdensome, oppressive, creates inference that the discovery was not propounded in good faith but to harass, obscures the true issues in this case and unnecessarily increase the cost of litigation, confidential, privileged, matters of public record or equally accessible so as to make them unduly burdensome, already within Plaintiff’s possession, custody or control, or made available informally or in the course of discovery, the term “YOU” is vague, overbroad and unduly burdensome, and not properly served. As to the specific document requests and topics, FNF objected on the grounds that the discovery is not relevant or reasonably calculated to lead to the discovery of admissible evidence, is overbroad, unduly burdensome and oppressive, uses an overbroad and oppressive definition of “YOU” and temporal scope, is vague and ambiguous as to the phrases “California requirements for filing fees for the delivery of escrow documents and/or the disbursement of escrow funds”, “filing of rates for delivery fees,” “policies implemented by FNTC regarding title and escrow services in California”, “rate filing policies and practices”, and seeks privileged information, including information protected by the attorney-client privilege and work product doctrine.

1. Parties’ Arguments

Plaintiff argues the Subpoena is reasonably tailored to lead to the discovery of admissible evidence, and FNF has not met its obligation to meet and confer in good faith. Plaintiff argues FNF served boilerplate objections with no factual support for its burden and privilege objections, and a letter stating objections is not sufficient to justify non-appearance at a deposition. Plaintiff further argues that FNF did not timely seek a protective order and scheduled this motion three days before the discovery cutoff in order to prejudice Plaintiff.

FNF opposes the ex parte application as an improper attempt to “leapfrog” over FNF’s motion for protective order without the normal statutory schedule for briefings and hearings of a non-emergency nature. FNF argues that Plaintiff cannot seek to compel discovery from a non-party via an ex parte application because the statutes require a motion to compel a nonparty to be served by noticed motion, and Plaintiff seeks to improperly advance a decision on this discovery dispute prior to Fidelity’s motion for judgment on the pleadings.

FNF argues that the Subpoena was not properly served as it was mailed and e-mailed to FNF’s counsel, Michael J. Gleason, who advised Plaintiff’s counsel that he was not authorized to accept service for FNF. According to FNF, Plaintiff’s counsel withdrew the subpoena. FNF further argues that it engaged in a good faith effort to meet and confer by promptly asking Plaintiff to justify the Subpoena or FNF would seek a protective order. FNF says it then considered Plaintiff’s justification and informed Plaintiff why the Subpoena remained improper, again informing them of the protective order.

On the merits of the discovery dispute, FNF argues the topics and document requests in the Subpoena are not relevant because they have no tendency to prove or disprove any disputed fact. FNF contends that Plaintiff already has the same information from Fidelity, and the discovery is overly broad because it spans 15 years and seeks information from all representatives and affiliated entities of FNF, a large holding company. FNF further argues the Subpoena is designed to harass and that Plaintiff’s counsel has an ulterior motive to find evidence to support additional potential lawsuits against FNF and/or its subsidiaries. FNF argues discovery should be deferred until after the Court’s decision on Fidelity’s motion for judgment on the pleadings.

2. Analysis

As a threshold matter, FNF’s objection to the ex parte application is moot given the continuance of the matter by the Court on February 4, 2014. FNF’s request to postpone decision on the ex parte application until after Fidelity’s motion for judgment on the pleadings is likewise moot.

The parties raise various procedural issues: (1) whether the Subpoena was properly served on FNF; (2) whether FNF met and conferred in good faith prior to filing its motion; and (3) whether FNF’s motion is timely.

A deposition subpoena may be used to obtain discovery, including oral deposition testimony and production of business and records and things, from a non-party. (See Cal. Code Civ. Proc., § 2020.010, subds. (a), (b).) If the deponent is an organization, the deposition subpoena may be served by personal delivery to any agent or employee authorized by the organization to accept service of a subpoena. (Cal. Code Civ. Proc., § 2020.220, subd. (b)(2).) FNF claims the Subpoena at issue was not personally served on FNF’s authorized agent to accept service, but rather, on FNF’s counsel by e-mail and U.S. Mail on January 10, 2014, and FNF has not authorized its counsel as an agent for service of process. Plaintiff counters that FNF’s designated agent for service was personally served on December 31, 2013. Plaintiff submits a copy of the Subpoena including a Proof of Service signed by Isaiah Villareal of S&R Services indicating that on December 30, 2013, the Subpoena was personally served on FNF through Jan Lapinid at the address of CP Corporation Systems, 818 W. Seventh Street, Los Angeles, CA 90017. FNF’s papers include a Service of Process Transmittal from CT Corporation to FNF regarding the Subpoena at issue, indicating that CT Corporation is the statutory agent of FNF for legal process. After some back and forth between various counsel, on January 10, 2014, Plaintiff’s attorney Nance Becker sent a letter to Michael Gleason in which Mr. Becker offered to postpone the deposition from January 21 to January 28, 2014 “in order to give FNF time to reconsider its position and/or to seek relief from the Court.” Mr. Becker’s letter attached “an amended subpoena to that effect.” FNF characterizes this letter as “withdrawing the subpoena” and stating “the intent to reissue the subpoena, with a new date of January 28, 2013.” However, there is no discussion in the correspondences of withdrawing or reissuing the Subpoena, and when read in context, Mr. Becker’s January 10, 2014 letter and the attached amended subpoena only extended the deposition date, after FNF’s authorized agent had already been personally served with the original Subpoena. The Court finds that FNF was properly served with the Subpoena.

Plaintiff argues that FNF did not meet in confer in good faith because FNF did not provide any factual support for its burden and privilege objections. Plaintiff argues that a letter stating objections is not sufficient to justify nonappearance at a deposition. Plaintiff further argues that FNF should have brought the motion earlier, since it had stated as early as January 8 that it would seek a protective order. “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Cal. Code Civ. Proc., § 2025.420, subd. (a).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Cal. Code Civ. Proc., § 2016.040.) Here, FNF’s motion is supported by the Declaration of Michael J. Gleason attaching the parties’ meet and confer correspondences. Although Mr. Gleason’s declaration does not state facts regarding FNF’s efforts at informal resolution, the correspondences demonstrate that FNF raised the same issues presented in this motion regarding the Subpoena’s relevance, breadth and burden. As for the timing of the motion, section 2025.420 allows a motion to be brought “[b]efore, during, or after a deposition,” and FNF’s motion was filed on the continued date of the deposition. The Court finds that the motion is timely, and that FNF fulfilled its obligation to meet and confer in good faith.

“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.” (Cal. Code Civ. Proc., § 2025.480, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization form unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: [¶] (1) That the deposition not be taken at all. … [¶] (5) That the deposition be taken only on certain specified terms and conditions. … [¶] (10) That the scope of the examination be limited to certain matters. [¶] (11) That all or certain of the writings or tangible things designated in the deposition notice not be produced[.]” (Cal. Code Civ. Proc., § 2025.420, subd. (b)(1), (5), (10), (11).)

The Court finds that FNF’s objections are not justified, and FNF fails to demonstrate good cause for a protective order barring its deposition from taking place. Most of the topics and document requests in the Subpoena are limited in time to a period since 1999 and relate to the subject matter that is at the heart of this lawsuit: the filed rates of title and escrow companies with respect to the rates charged for delivery of escrow documents and disbursement of escrow funds. The year 1999 is relevant because this is the year the CDI sent a letter to Fidelity regarding Insurance Code section 12401.1 and its application to rates for courier and express mail services. FNF argues that Plaintiff has already obtained much of the same information from Fidelity’s PMQ, but Plaintiff submits that Fidelity’s PMQ, Ms. Ryan, could not testify as to the reasons for certain changes in Fidelity’s rate filings or Fidelity’s communications with the CDI in 1999 regarding the requirement that delivery fees be filed. As for the title and escrow companies acquired by FNF, Plaintiff submits that a review of publicly available rate filings shows that several entities acquired by FNF had previously filed rates for third party delivery fees, but they changed this practice after acquisition by FNF, raising questions relevant to this lawsuit about FNF’s role in orchestrating those changes. Although FNF demonstrates that it is a large holding company with many entities that may fall into the Subpoena’s broad definition of “YOU,” the topics and document requests are still reasonably circumscribed by relevant subject matter.

FNF does not carry its burden as the party moving for a protective order to demonstrate that the discovery sought is unreasonably cumulative or duplicative, or unduly burdensome or expensive. (See Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.) “The objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (W. Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418.) FNF’s motion is inadequate in this regard. FNF’s concern about the “ulterior motives” of Plaintiff’s counsel is based on an unsupported assertion that Plaintiff’s counsel used information and documents they obtained through discovery in this action to file other actions against FNF.

FNF provides little support for its privilege objections. The only topics and document requests that seem to implicate attorney-client privileged communications are document requests 4 and 5, since they refer specifically to the instant litigation, but FNF should provide a privilege log identifying any document withheld on the basis of privilege, its author, recipients, date of preparation, and the specific privilege claimed. All of the other document requests pertain to communications between FNF and either Fidelity, the CDI, or affiliate title and escrow companies that FNF acquired, and such communications would not likely be privileged or contain attorney work-product. However, because the document requests seek not only the communications themselves but all documents that “concern” such communications, the requests could conceivably implicate the attorney-client privilege or work product protection, in which case FNF should produce a privilege log for any documents withheld on that basis. Certainly, the privilege objections provide no good cause for preventing the deposition altogether.

For all of these reasons, FNF’s motion for protective order is DENIED and Plaintiff’s motion to compel FNF to comply with the Subpoena is GRANTED. FNF is ordered to appear for the deposition of one or more of its persons most qualified to testify about each of the topics set forth in the Subpoena, and to bring to the deposition all documents identified in the Subpoena with the exception of any documents withheld on privilege grounds, as to which FNF shall provide a privilege log.

C. MOTION TO BIFURCATE

Plaintiff moves to bifurcate issues of class liability from issues relating to the relief to be awarded.

1. Parties’ Arguments

Plaintiff argues that bifurcation of trial on liability issues from relief issues will promote efficiency because the scope and extent of any restitution will vary greatly between the different theories of liability, and thus, if the trial is bifurcated, the Court will only have to hear and receive the evidence regarding the scope and extent of the relief to be awarded on the specific theory or theories on which the Court finds liability.

Fidelity opposes the motion, arguing that the motion is brought to hide defects in Plaintiff’s proof and his inability to ascertain the certified Class. Fidelity argues the proposed bifurcation of liability and relief issues would violate Fidelity’s duty process rights because under the UCL, before a finding of liability can be made, Plaintiff must prove not only that a statutory violation was made, but that the violation caused an injury-in-fact warranting restitution, and thus, issues of relief cannot be divorced from issues of UCL liability. Fidelity argues that because the issues of restitution and injury-in-fact are so intertwined, the proposed bifurcation would not promote efficiency and instead would lead to duplication of evidence.

2. Analysis

“The court in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action…or of any separate issue or of any number of causes of action or issues[.]” (Cal. Code Civ. Proc., § 1048, subd. (b).) “Section 1048 of the Code of Civil Procedure authorizes a separation of the issues whenever it can be done without prejudice to a substantial right.” (Bratton & Moretti v. Finerman & Son (1959) 171 Cal.App.2d 430, 435.)

FNF raises a legitimate concern that bifurcation of trial on liability and restitution could unfairly preclude FNF from raising threshold issues during the liability phase of trial regarding the UCL’s standing requirement that Plaintiff must show a loss of money or property caused by an unlawful business practice. Because the proposed bifurcation potentially prejudices FNF’s substantial rights, the motion is DENIED.