Case Number: BC627364 Hearing Date: December 26, 2017 Dept: 93

MOVING PARTY: Defendant Todd Morgan

RESPONDING PARTY: Plaintiff Patrick Rauber

Motion to Compel Production of Documents Responsive to Business Records Subpoena

The court considered the moving, opposition, and reply papers.

BACKGROUND

In BC627364, on July 15, 2016, Patrick Rauber filed a complaint against Todd Morgan for motor vehicle negligence based on an incident that occurred on November 6, 2015. Trial is set for January 16, 2018.

On October 3, 2017, defendant Morgan filed a notice of related case in BC627364, identifying BC626811 (Dept. 92) as related.

In BC626811 (Dept. 92), on July 13, 2016, plaintiff Rauber filed a complaint against Megan Eilers for motor vehicle negligence based on an incident that occurred on March 11, 2015. Trial is set for January 16, 2018.

Defendant Morgan has not filed a notice of related case in the earlier filed case in BC626811 (Dept. 92).

DISCUSSION

Defendant Todd Morgan requests that the court compel the production of plaintiff’s employment records with Great King of America, LLC.

CCP § 1987.1(a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, 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.”

CCP § 1985.3(b) states that, prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e) (notice to consumer), and proof of service as indicated in paragraph (1) of subdivision (c).

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” Lee v. Swansboro Country

Property Owners Ass’n (2007) 151 Cal. App. 4th 575, 582-83. Either the nonparty witness who has been subpoenaed or any party to the action may challenge the deposition subpoena. Weil & Brown, Civ. Proc. Before Trial, ¶ 8:597.

A deposition subpoena may be quashed for: (1) defects in form or content of the subpoena (e.g., inadequate description of requested records); (2) defects in service of the subpoena (e.g., failure to satisfy the requirements of providing notice to consumer; (3) requesting production of records not within the permissible scope of discovery; and (4) being unjustly burdensome or oppressive. Weil & Brown, Civ. Proc. Before Trial, ¶ 8:598.

Defendant Morgan contends that the records are relevant to determine the essential duties and physical requirements of plaintiff’s job and whether he requested any accommodation due to his asserted injuries and current complaints.

In opposition, plaintiff argues that the subpoena is overly broad, violates his constitutional right to privacy, and that defendant has not shown a compelling need for the records. Plaintiff contends that he is not asserting a loss of earnings or loss of earnings capacity claim.

The motion is DENIED WITHOUT PREJUDICE. Defendant has not served a notice of related case in the earlier filed case BC626811 to allow Dept. 92 to rule on it. Further, defendant failed to personally serve Great King of Americas, LLC with the motion, as required by Cal. Rules of Court, Rule 3.1346, which states that, “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”

Defendant Morgan is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: December 26, 2017