Case Number: BC637665 Hearing Date: March 27, 2018 Dept: 46

Case Number: BC637665
THERAPUETIC LIVING CENTERS FOR THE BLINDS INC VS ALAN PURZAN

Filing Date: 10/19/2016
Case Type: Contractual Fraud

03/27/2018
MOTION #1 – Motion to Compel Further Responses to Requests for Production, Set One
MOTION #2 – Motion to Compel PMK Deposition;
MOTION #3 – Motion to Quash Business Subpoena

TENTATIVE RULING

MOTION #1 – Motion to Compel Further Responses to Requests for Production, Set One is DENIED.

MOTION #2 – Plaintiff’s Opposition is late but the court exercises its discretion to consider it on this one motion. Defendant’s Request for Judicial Notice is DENIED. The Motion to Compel PMK Deposition is DENIED.

MOTION #3 – Defendant’s Request for Judicial Notice is DENIED – Exhibit C has not been filed with the court and in that sense is not a court document or record. Defendants’ Evidentiary Objections are all SUSTAINED. For that reason the motions to quash must be continued. Motions to Quash Business Subpoenas are CONTINUED for compliance with the court’s instructions below and supplementation of evidence and argument. Motion is continued to 5/11/2018 at 8:30 a.m. in Dept. 46. Further moving papers are to be filed and served by 4/20/2018; further opposition to be served and filed by 4/30/2018; further reply to be served and filed by 5/4/2018.

See Discussion.

DISCUSSION

MOTION #1
Motion to Compel Further Responses to Requests for Production, Set One

On 10/25/17, the motion first came on for hearing in this court. The minute order from that date states in relevant part as follows:

“Motion to Compel Further Responses to Requests for Production of Documents, Sets One and Two and Request for Sanctions of $5,000 are DENIED. See discussion below.

…

Meet and Confer Efforts were inadequate

A motion to compel further responses must be “accompanied by a meet and confer declaration under Section 2016.040.” which in turn requires facts showing a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (See C.C.P. § 2033.290(b), 2016.040.) Here, D’s counsel’s declaration does not provide facts that demonstrate an adequate attempt to meet and confer was made. P served responses to D’s first request for production of documents on 5/3/17. Yet D’s counsel waited until 7/1/17 to send an email regarding D’s issues with the responses. (Adler Decl. 7, Exh. 2.) D’s counsel demanded P’s counsel respond by 7/5/17 by 5:00pm or else D would file a motion to compel. (Id.) D’s counsel sent an email on 7/6 and 7/7, demanding a response to the meet and confer. (Adler Decl., Exh. 4.) D does not provide any evidence of any meet and confer attempts occurring prior to 7/1/17. D’s last-minute attempts to meet and confer over a holiday weekend do not constitute good faith.

Separate Statement is inadequate

California Rules of Court, rule 3.1345 requires a separate statement to include the text of the question or inspection demand, the response provided, the reason for compelling an answer or the production of documents, and any other information necessary to the understanding of each request. (Cal. Rules of Court, rule 3.1345.) D’s Separate Statement does not comply with applicable rule because it fails to set forth P’s full response to each of the requests for production at issue. Instead, D describes P’s objection as either “Overbroad as to time” or just “Overbroad.” And D’s responses to the objections are terse reasons that are between one or two sentences long. Accordingly, the Court finds D’s separate statement as deficient. D did not need to file a separate statement in regard to D’S second set of document requests because P failed to provide initial responses. (Cal. Rules of Court, rule 3.1345.).”

Defendants’ separate statement continues to be inadequate, as it fails to comply with CRC Rule 3.1345(c)(4), which requires that the text of all definitions and instructions be set forth in the separate statement. Defendants’ motion is therefore DENIED.

Motion #2
Motion to Compel PMK Deposition

The papers reflect a highly inefficient and unproductive impasse regarding the scheduling of the deposition of the PMK followed by a premature motion.

On 12/1/17, Plaintiff’s counsel sent a letter suggested deposition dates for Plaintiff’s PMK and for Defendants, all in April of 2018, which Defendants’ counsel apparently did not receive until early January, 2018. (Declaration of Eric R. Adler ¶¶5-6, Exhibit C). In the meantime, on 12/7/17, Defendants’ counsel formally noticed the deposition of Plaintiff’s PMK for 1/10/18. (Id. Exhibit A). On 12/28/17, counsel for Plaintiff served a blanket objection to the production request which accompanied the notice of deposition, stated that he was unavailable on the scheduled date, and adverted to his earlier letter. (Id. Exhibit B). On receiving that letter, Defendants’ counsel called Plaintiff’s counsel to insist on earlier deposition dates. (Id. ¶ 6). Rather than call back as requested, Plaintiff’s counsel sent another letter on 1/5/18 re-asserting that the most sensible time for depositions would be after the instant motions to quash (discussed below) were ruled on. (Id. ¶ 7-8, Exhibit D).

The impasse continued with an email from Defendants’ counsel on 1/8/18 demanding a deposition date in February of 2018, on pain of this very motion. (Id. Exhibit E). Two days later, on 1/10/18, Defendants’ counsel asked for a meeting and conference on all outstanding issues. (Id. Exhibit F). On 1/19/18, Defendants’ counsel again threatened to file the instant motion. (Id. Exhibit G). On 1/25/18, Defendants’ counsel threatened Plaintiff’s counsel with the instant motion one more time. (Id. Exhibit H). On 1/31/18, Defendants’ counsel again attempted contact about the instant motion. (Id. Exhibit I). Finally, on 2/3/18, Plaintiff’s counsel sent another letter with a one-sentence response: “[t]he scheduling must follow the time frame outlined in our prior correspondence.” (Id. Exhibit J). In a final paroxysm of exasperation, on 2/7/18 Defendants’ counsel sent an email informing Plaintiff’s counsel that he actually did mean to file a motion to compel. (Id. Exhibit K). This motion followed two weeks later.

Late Opposition

As a preliminary matter, Plaintiff’s opposition is five days late. Oppositions are not due 9 calendar days before the hearing, they are due 9 court days before the hearing. CCP 1005(b). The opposition should have been served and filed on 3/14/18, not 3/19/18. Plaintiff’s prompt lodging of courtesy copies is noted and appreciated, but Plaintiff is advised that in future, late filings will not be considered. CRC Rule 3.1300(d).

There was no Refusal or Failure to Appear

The objection by Plaintiff was merely to restate counsel’s unavailability for the time unilaterally set for the deposition. CCP §2025.450(a) states in relevant part as follows:

“(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

These scheduling issues are exactly the sort of thing the parties ought to be able to sort out between themselves.

The Discovery Code does not afford either party the unqualified prerogative of deciding when a deposition should be, and both parties have a point here. On the one hand, an April deposition is still three months before the trial date, and Ds have offered no particularly compelling reason why the deposition absolutely had to be earlier. Nor was the patronizing wish expressed by Defendants’ counsel that Plaintiff’s counsel “get the help you clearly need” well-calibrated to provoke a productive discussion. On the other hand, the unusual and inefficient decision on the part of Plaintiff’s counsel to communicate only by letter certainly contributed to the exasperation of his colleague, and the insistence that Plaintiff receive discovery before the PMK testified has not yet been explained in a satisfactory manner. Under these circumstances, Defendants may be forgiven for thinking that Plaintiff is dragging his feet.

Counsel are advised to put this behind them and be more accommodating in the future, for their own sake and the sake of their clients and the court.

In spite of all, there has been no actual refusal to appear for a deposition, so Defendants’ motion is inappropriate at this time.

Therefore, the motion is DENIED.

MOTIONS ##3&4—Motion To Quash
Wells Fargo Bank
Morgan Stanley

At the outset, it should be noted that none of Defendants’ exhibits have been properly authenticated, and the separate statements are non-compliant with CRC Rule 3.1345(c)(4), which requires that the text of all definitions and instructions be set forth in the separate statement. Defendants’ motions are therefore deficient as they stand now.

Defendants make procedural arguments regarding Plaintiff’s Opposition which should be addressed. First, Defendants offer a blanket evidentiary objection to the bulk of Plaintiff’s memorandum of points and authorities. A memorandum of points and authorities is not evidence, and not subject to those objections. Second, Defendants point out that Plaintiff has not filed a separate statement. Defendant’s misread 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.

Plaintiff may be well advised to file a responsive separate statement, but it does not have to. Mills v. U.S. Bank (2009) 166 C.A.4th 871, 891 is not to the contrary; that case involved denial of the motion because the moving party filed a deficient separate statement.

Finally, Defendants raise their meet and confer difficulties, which are discussed in connection with the other motions above, and have become a very contentious point in this case. But Sections 1987.1 and 1987.2 carry no meet and confer requirement.

Turning to the merits, Defendants’ major objections appear to be mostly lacking. An objection on the grounds of burden is properly raised by the person actually tasked with making the response; Defendants lack standing to raise this objection. Defendant’s relevance objections depend on the acceptance of certain unsupported factual assertions, and are not entirely clear.

Defendants’ privacy objections require more discussion. It is agreed by both parties that Defendants are asserting privacy objections on behalf of the beneficiaries of the trust. Both parties tacitly assume that Defendants, as trustees, have standing to do so. And neither party disputes that the beneficiaries are charity corporations. Plaintiff hinges its argument on the proposition that corporations have no privacy rights. But Plaintiff is only partially correct. Corporations have no privacy rights under the California Constitution (see Zurich American Ins. Co. v. Superior Court (2007) 155 C.A.4th 1485, 1504), but they do have a generalized privacy right under the Federal Constitution. See Id. at 1504-05; Roberts v. Gulf Oil Corp. (1983) 147 C.A.3d 770, 795. That right is not equivalent to the fundamental privacy right accorded to natural persons. Id. at 795-797 (“corporations have a lesser right to privacy than human beings and are not entitled to claim a right to privacy in terms of a fundamental right…Two critical factors are the strength of the nexus between the artificial entity and human beings and the context in which the controversy arises”).

““In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (internal quotations and citations omitted).

“What suffices to justify an invasion will…vary according to the context. Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest. (Hill, at p. 34, 26 Cal.Rptr.2d 834, 865 P.2d 633.) To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, they are disapproved.” Id. at 557 & fn.8.

Neither party’s discussion of this analytical framework is helpful to the issue. Plaintiff simply says that corporations have no rights, or if they do, there is a compelling interest: that “production of these materials would be of significant assistance to the preparation of the Plaintiff’s case.” That is not a compelling interest; if it were, no privacy objection would ever be viable. On the other hand, Defendants respond with the flat statement that the information sought is not relevant to Plaintiff’s claims, and fail to present the court with an authenticated copy of the subpoena. The court is thus left completely in the dark as to what the fight is about.

For all the foregoing reasons, the motion is CONTINUED for further briefing as to the specific issue of privacy. Defendant is also be instructed to remedy the procedural defects identified above with regard to the separate statement and their exhibits.

IT IS SO ORDERED:

___________________________
Frederick C. Shaller, Judge