In Re Luna Owner’s Association		CASE NO. 114CV270800
DATE: 31 October 2014	TIME: 9:00	LINE NUMBER: 18

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 30 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 31 October 2014, the motion of Plaintiff Luna Owner’s Association (“Plaintiff”), Petition for the Issuance of a Court Order for Service of Subpoenas upon Third Parties, Helix Electric, Inc. and Spartan Engineering, Inc. (“Third Parties”), was argued and submitted.

Responding Party did not file formal opposition to the motion.[1]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]

1. Statement of Facts.

This petition arises from a pre-litigation dispute resolution between Plaintiff and KB Home South Bay (“KB”) relating to construction defect claims at the Luna at Terra Serena Condominium Project (“Project”) located in the City of Milpitas.

1. Discovery Dispute.

Currently, Plaintiff and KB are participating in the pre-litigation dispute resolution process, including but not limited to the exchange relevant documents in their possession, custody or control.

Plaintiff is seeking to obtain certain critical documents, records, plans and information in the possession, custody or control of Third Parties who were involved in the design, development and construction of the project.

III.     Analysis.

1. Subpoenas upon Third Parties for Document Production

California Civil Code § 6000(n)(1) states “any party may, at any time, petition the superior court in the county where the project is located, upon a showing of good cause, and the court may issue an order […] to subpoena a third party for deposition or production of documents, which is necessary to further pre[-]litigation resolution of the dispute.”

In addition, Civil Code § 6000(o)(1) states “a petition filed pursuant to subdivision (n) shall be filed in the superior court in the county in which the project is located. The court shall hear and decide the petition within 10 days after filing. The petitioning party shall serve the petition on all parties, including the date, time, and location of the hearing no later than five business days prior to the hearing. Any responsive papers shall be filed and served no later than three business days prior to the hearing. Any petition or response filed under this section shall be no more than three pages in length.”

Plaintiff correctly cited the statutes for this Court to authorize subpoenas to Third Parties pursuant to CCP § 2020.010.

1. Show of Good Cause

A party required to show “good cause” to obtain discovery under any provisions of Chapter 2 (commencing with Section 1985) or of Article 3 (commencing with Section 2016) of Chapter 3 of this title, shall show specific facts justifying discovery and mere proof of the relevance of the information sought to the subject matter of the action shall not be sufficient. CCP §2036(a).

CCP § 1985 further states that “the affidavit served with a subpoena […] issued before trial must show good cause  for the production of the matters and things described, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case. The facts that must be set forth in the affidavit other than the statutory requirements, may not be alleged on information and belief without setting forth facts in support of said information and belief (see also Pacific Auto. Ins. Co. v. Superior Court, (1969) 273 Cal. App.2d 61, 66—67; Johnson v. Superior Court, (1968) 258 Cal.App.2d 829, 836).

Here, Plaintiff stated that Third Parties were involved in the design, development and construction of the fire alarm, fire suppression, and life/safety systems at the Project. Additionally, Plaintiff states these systems are of critical importance to evaluation of the construction defect claims. Without these information, neither Plaintiff nor KB may adequately evaluate any written settlement offers that may be forthcoming during the pre-litigation dispute resolution process. Obtaining complete and accurate architectural drawings related to various components systems would be essential to the evaluation of constructions defect claims.

Accordingly, Plaintiff’s petition for the issuance of a court order for services of Subpoenas upon Third Parties is GRANTED in obtaining complete and accurate architectural drawings related to various components systems.

1. Order.

Plaintiff’s petition for the issuance of a court order for services of Subpoenas upon Third Parties is GRANTED in obtaining complete and accurate architectural drawings related to various components systems.

 

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”