Case Number: BC680425 Hearing Date: April 05, 2018 Dept: 46

Case Number: BC680425
THE PEOPLE OF THE STATE OF CA VS ADIR INTERNATIONAL LLC ET A

Filing Date: 10/19/2017
Case Type: Other Compl-not Tort or Complex

4/05/2018
MOTION – COMPEL DEPOSITION

TENTATIVE RULING

Motion is GRANTED pursuant to CCP §§1987.1 and 2025.480. Bureau of Electronic Appliance Repair, Home Furnishings, and Thermal Insulation (“BEAR”) is order to comply with the subpoena served on 11/3/2017 by Defendant Adir. BEAR is ordered to produce all responsive documents without objection within 30 days together with a declaration of compliance and business records declaration compliant with E.C. 1271. See discussion.

DISCUSSION

On 11/3/17, Defendant Adir served Respondent BEAR with a deposition subpoena for production of business records, with a production date of 11/27/17. (Declaration of Elizabeth A. Sperling [hereinafter “Sperling Dec.”] Exhibit A). On 11/17/17, Respondent Bear served objections. (Id. Exhibit B). On 11/20/17, Respondent Bear served more objections. (Id. Exhibit D). On 11/29/17, D Adir’s counsel responded with a meet and confer letter addressing the first set of objections. (Id. Exhibit C). Later that same day, D Adir’s counsel actually received the second set of objections. (Id. ¶ 5). On 12/27/17, D Adir’s counsel sent another meet and confer letter addressing all objections. (Id. Exhibit E). There was no additional response to the meet and confer letters. (Id. ¶ 7).

CCP §1987.1 provides:

“(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…”

CCP §1987.2 provides:

“[I]n making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or 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.”

Respondent BEAR has filed a form of opposition which withdraw its objections on the grounds of lack of consumer notice, lack of specificity, and inability to certify. Respondent BEAR indicates that it intends to serve verified responses, and to submit a privilege log related to its attorney-client and official information privilege objections. The only objection which Respondent BEAR indicates it would like to maintain is the burden objection to documents in Category 11.

On the basis of the opposition, Adir’s motion is GRANTED as to all categories except Category 11. The mere promise of responses does not moot the motion, but when coupled with the withdrawal of objections, it does amount to a concession that the motion is meritorious.

With regard to category 11, D Adir raises two procedural issues: (1) Respondent BEAR’s failure to file a separate statement, and (2) Respondent BEAR’s failure to support the burden objection with evidence. As to the first, D Adir misreads CRC Rule 3.1345(a), which commands that a separate statement be filed for any “motion involving the content of a discovery request or the responses to such a request.” “Responses” here plainly refers to discovery responses, not responsive memoranda, and the rule requires separate statements only for a “motion,” not an opposition. Respondent BEAR may be well advised to file a responsive separate statement, but it does not have to.

As to the second issue, an “objection based upon burden must be sustained by evidence showing the quantum of work required… objection of burden is valid only when that burden is demonstrated to result in injustice. Hence, the trial court is not empowered to sustain an objection in toto, when the same is predicated upon burden, unless such is the only method of rendering substantial justice.” West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 C.2d 407, 417. Respondent BEAR has submitted no evidence to show the quantum of work required, nor has it shown that complete sustention of the objection is the only method of rendering substantial justice. Respondent BEAR asks the court to weigh the burden against the relevance of the information, but “substantial justice” is not really a balancing test, and without evidence the court has nothing to balance anyway.

For these reasons, D Adir’s motion should be GRANTED in its entirety.

IT IS SO ORDERED:

___________________________
Frederick C. Shaller, Judge