Case Number: EC066951 Hearing Date: February 14, 2020 Dept: E

MOTION TO COMPEL FURTHER RESPONSES

TO REQUESTS FOR PRODUCTION OF DOCUMENTS

(CCP § 2031.310)

Date: 2/14/20

Case: Aaron Kweskin, et al. v. Ronnie Charles King, et al. (EC 066951)

TENTATIVE RULING:

Plaintiff Aaron Kweskin’s Motion to Compel Further Response to Requests for Production of Documents, Set Two, Nos. 1 through 6 is GRANTED.

Kweskin has good cause to request the recording between defendant Ronnie Charles King and plumber Carlos, as it may contain evidence of a purported attempt by Kweskin to shift blame for mold on the premises to the Kings by claiming that the Kings hit the water heater with a car. Indeed, none of the parties dispute the relevance of the recording or its contents.

Defendant’s objection to producing the recording due to its potential illegality is not well taken. Penal Code § 631 does not appear to apply to the circumstances, as the recording did not involve any wiretap (or similar activity) of the conversation with Carlos. Penal Code § 632 may very well apply if King recorded his conversation with Carlos without consent. But even if King violated Penal Code § 632, thereby potentially rendering the recording inadmissible under subsection 632(d), the recording is still discoverable, as it is reasonably calculated to lead to the discovery of admissible evidence. (See CCP § 2017.010.) Certainly, the conversation that was subject to recording, including testimony about it and evidence related thereto, may be admissible at trial, even if the recording itself is not. (See Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1493.) Indeed, under certain circumstances, the recording might also potentially be used at trial, including for impeachment. (See id. at 1497.) Further, the Court does not find that counsel for defendant would be liable for complying with discovery obligations in this case, as there is no allegation or suggestion counsel is responsible for having engaged in potentially unlawful activity concerning the recorded conversation of Carlos without consent.

Accordingly, defendant/cross-complainant Ronnie Charles King is ordered to produce further verified code-compliant responses to Request for Production, Set Two, Nos. 1 through 6 within 10 days hereof. Defendant King is further ordered to affirm whether privileged documents were withheld and, if so, provide a privilege log. (CCP § 2031.240(c)(1); Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 129-30.)

Kweskin’s request for sanctions is DENIED. Given the valid concern regarding the illegality of the recording at issue, the Court finds King and his counsel opposed discovery with substantial justification.