Christian and Nicole Bettary v. Zuhair Munir

C. and N. Bettary v. Z. Munir and Does 1 through 10

CASE NO. 113CV249969

DATE: 10 July 2014

TIME: 9:00

LINE NUMBER: 13

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 9 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 10 July 2014, the motion of the Defendant to Quash Deposition Subpoena for Production of Business Records from Al Yassin Hashin & Association and Mark Scott Construction was argued and submitted.

Plaintiff filed formal opposition to the motion.

Statement of Facts

This suit arises from a fire on 06 February 2013 at 20940 Panorama Drive in Los Gatos, CA (the “Property”).  The Property is owned by Defendant, Zuhair Munir.  This fire destroyed the two structural premises on the Property.

In October 2010, one of the structures on the Property was leased to the Plaintiffs, Christian Bettray and Nicole Bettray, and as a result of the fire, Plaintiffs claim several causes of action including Breach of Contract, Breach of Warranty of Habitability; Retroactive Rent Abatement, Negligence; Negligence Per Se, Negligent Infliction of Emotional Distress; Fraud, Intentional Infliction of Emotional Distress; Constructive Eviction, and Violation of Statutory Duties.  Damages include the loss of personal property and pets.

County records provided by the Plaintiff indicate that the house was “red-tagged” for building code violations since 1998.

The Defendant’s insurer CSAA has made a subrogation claim against the Plaintiffs based upon the contention that the Plaintiffs’ space heater caused the fire.

The Defendant has retained the services of an architect (Al Yassin Hashin & Association) and a general contractor (Mark Scott Construction) to build new structures on the Property.

Discovery Dispute

Plaintiff’s caused a subpoena for production of business records from the architect and general contractor concerning work on the Property, after they were identified from the Defendant’s deposition.

On 14 April 2014, Defendant’s counsel received from Second Image National a “Records Request Form” to obtain records from the architect and contractor, but claims not to have received the actual deposition subpoena or the notice to the consumer.  In the past, Defendant’s counsel has worked with Second Image, which had provided the copies as required.

On 29 April 2014, Defendant’s counsel sent a meet and confer letter to Plaintiffs’ counsel to object to the subpoena based on grounds that the records are irrelevant to the present litigation and not reasonably calculated to lead to the discovery of admissible evidence.  Further, the letter claims that the records sought would violate the Defendant’s right to privacy.  Defendant claims that Plaintiffs sent no response.

Plaintiffs contend that they served the Defendant properly.  Additionally, Plaintiffs contend the cause of the fire and the Defendant’s awareness of building code violations are issues in this case and are the purpose for seeking these records.

Defendants seek a motion to Quash Deposition Subpoenas for Production of Business Records from Al Yassin Hashin & Association and Mark Scott Construction.

Analysis

Defendant seeks relief under Code of Civil Procedure section 1987.1. That section authorizes a party to move the court for an order quashing or modifying a subpoena duces tecum on the ground that the records sought are not within the permissible scope of discovery or that the requests are unreasonable. (Code Civ. Proc. [“CCP”], § 1987.1, subds. (a) & (b).)

Upon a motion reasonably made, the court may make an order quashing a subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as it shall declare. (CCP, § 1987.1, subd. (a).) In addition, the court may make any other order as may be appropriate to protect against unreasonable or oppressive demands, including unreasonable violations of the right to privacy. (Id.)

The party objecting to a discovery request bears the burden of explaining and justifying its objections. (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255.)

I. Relevancy of Request

Discovery is allowed for any matters that are not privileged, relevant to the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010 (a).)  Information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.  (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

Although relevance in the discovery context is to be construed liberally in favor of disclosure, the scope of civil discovery is not limitless. (See Calcor Space Facility v. Super. Ct. (1997) 53 Cal.App.4th 216, 223.) Thus, although admissibility is not a prerequisite to discovery, the test is whether the information sought might reasonably lead to other evidence that would be admissible. (See Calcor, supra, 53 Cal.App.4th at p. 223.)

Defendants state the Plaintiffs demand records that are irrelevant to the subject matter of the lawsuit and are not reasonably calculated to lead to the discovery of admissible evidence because new construction does not have bearing on the past fire.

The Plaintiffs claim to seek information from the architect and general contractor concerning the property’s building permit history to corroborate their position that the Defendant was well aware of the subject property’s illegal status and chose to ignore the County’s 1998 notices that the violations be abated.  Plaintiffs also observe that the new structures being built on the property are different than where the original structures were emplaced.  This is relevant because it is possible that the reason for not utilizing the same building pad may have something to do with what caused the fire.

Plaintiffs concede in their reply brief they will be prohibited from the introduction of evidence of re-construction that took place from a remedial perspective, but will not be prohibited from introducing documents or information corroborating their position that Defendant was aware of previous building code violations and leased the premises anyway.

“When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.”  (Evidence Code, §1151.)

The policy of encouraging safety measures is the primary reason for the rule providing, in an action based on negligence or culpable conduct, for the exclusion of evidence of remedial measures taken after the occurrence of the event leading to the action.  (Sanchez v. Bagues and Sons Mortuaries (1969) 271 Cal.App.2d 188, 190.)

As an exception to the rule excluding evidence of remedial measures taken after the occurrence of the event leading to an action based on negligence or culpable conduct (Evidence Code, §1151), such evidence, in appropriate cases, may be admitted if it tends to impeach the testimony of a witness.   (Sanchez v. Bagues and Sons Mortuaries, id. at  190-191.)

Here, the evidence is being sought only to show what knowledge may have been possessed concerning building code violations and defects.  This is a discovery issue and does not bar the issue of Evidence Code, section 1151 being raised at trial.  Thus, Defendant’s contention that Evidence Code Section 1151, prohibiting the introduction of evidence based remedial measures, does not apply here to quash the motion.  The Plaintiff has established relevancy to allow for the discovery of information.

II. Privacy Implications by Defendant

Where the right to privacy is implicated, the party seeking discovery must show that the discovery sought is directly relevant to a particular cause of action or defense. (Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 859-862.) “Direct relevance” is a higher standard than the “relevancy to the subject matter” standard generally applicable to discovery requests. (Id., at p. 859.) According to the California Supreme Court, direct relevance means that the discovery sought is essential to the fair resolution of a matter in dispute. (Id.) Once direct relevance has been demonstrated, the proponent of the discovery must show that the information sought is not available through less intrusive means. (Allen v. Super. Ct. (1984) 151 Cal.App.3d 447, 449.) The Court must then carefully balance the right to privacy on the one hand, and the right of civil litigants to discover facts, on the other. (Pioneer Electronics, Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 371.)

Defendant implicates a right to privacy by claiming that the records pertaining to the building of the new home on the Property clearly relate to “intimately personal and sensitive affairs and are maintained in utmost confidence by the custodian.” [Defendant’s Memorandum of Points and Authorities].   Defendant is concerned that the request is overly broad and a request for all documents is irrelevant.  Specifically, Defendant is concerned about his financial privacy, and how much he plans to spend on the construction has “absolutely nothing to do with this litigation.” [Defendant’s Response to Plaintiffs’ Opposition Brief].

The Defendant also claims the documents between his insurer and the architect/contractor have nothing to do with the present litigation.  Defendant believes these are examples that are outside the scope of permissible discovery, not reasonably calculated to lead to the discovery of admissible evidence, and would violate his rights of privacy.

Defendant proposes a scope of subpoena language that will limit the documents to only those the Plaintiff purports to seek as outlined in the Plaintiff’s opposition brief and would protect the Defendant’s rights of privacy.  The proposed language is:

“Any and all records which evidence, refer, relate to or depict any defect in the home that led to, and/or the actual cause of the fire that occurred on February 6, 2013 at 20940 Panorama Heights Drive in Los Gatos, California.”

As discussed in the previous section, the Plaintiffs’ provided the relevance needed for the discovery request to corroborate their theory that the defendant may have been aware of previous and current building code violations and rented the premises anyway.  Additionally, the Plaintiffs’ subpoenas specifically request the records relating to the work of the architect and general contractor for the subject Property only.   Although the Plaintiffs do not show that the information sought is not available through less intrusive means, a request for the production of records is a reasonable code compliant approach to seek this information.

This Court must balance the right to Defendant’s privacy and the right of the Plaintiffs to discover facts.  Here, the defendant fails to identify with specificity what information is private and sensitive in nature contained within the files of his architect and building contractor.  The Plaintiff has demonstrated direct relevance to the requested records that pertain to the specific Property, its history of building code violations, and the possibility that the Defendant was aware of the violations which may be corroborated in the requested records.  The balance is in favor of the Plaintiff, and the Motion to Quash Deposition Subpoena for Production of Business Records from Al Yassin Hashin & Association and Mark Scott Construction is DENIED on the grounds of privacy, without prejudice to a stipulation  between parties to identify particular information for attorney’s eyes only.

Order

Defendant’s Motion to Quash Deposition Subpoena for Production of Business Records from Al Yassin Hashin & Association and Mark Scott Construction is DENIED without prejudice.

Accordingly, the Ay Yassin Hashin Association and Mark Scott Construction shall respond to Plaintiff’s deposition subpoena for the production of business records within 20 calendar days of the filing of this Order.

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