Case Number: KC066276 Hearing Date: February 27, 2018 Dept: J

Re: USA Waste of California, Inc. etc. v. City of Irwindale, etc., et al. (KC066276)

MOTION TO QUASH NOTICE OF DEPOSITION AND DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE SERVED ON ATTORNEY FRED GALANTE AND, IN THE ALTERNATIVE, FOR PROTECTIVE ORDER

Moving Parties: City of Irwindale and Subpoenaed Parties Fred Galante and William Tam

Respondent: Plaintiff USA Waste of California, Inc.

POS: Moving OK; Opposing OK

(“Dispatch”) filed its Chapter 7 bankruptcy petition; on 9/1/16, Dispatch filed a “Notice of Stay of Proceedings.” On 11/8/16, a Declaratory Judgment was entered. On 11/28/16, plaintiff dismissed its second and fourth causes of action, with prejudice.
On 9/21/17, Commodity Trucking Acquisition LLC (“CTA”) filed its Complaint in Intervention, asserting a cause of action therein for Declaratory Relief, The Second Amended Complaint, filed 10/10/17, asserts causes of action against Defendants Dispatch and CTA for:

Intentional Interference with Contractual Relations
Unfair Competition (Business & Professions Code §§ 17200 et seq.)

The Final Status Conference is set for 4/30/18. A jury trial is set for 5/8/18.

The City of Irwindale and Subpoenaed Parties Fred Galante (“Galante”) and William Tam (“Tam”) (collectively, “City”) move for an order quashing the deposition subpoenas for personal appearance and notices of deposition served on City Attorney Galante on 1/24/18 and 1/16/18 and, in the alternative, for a protective order limiting the deposition to the morning of 2/28/18 or afternoon of 3/2/18 and that certain matters, including but not limited to any attorney client privileged communications (including closed sessions under the Brown Act), confidential settlement negotiations, and deliberative process, not be inquired into. A reasonable duration limit is requested. It is requested that the Galante deposition be stayed pending the outcome of this hearing and a stay of depositions of Galante or Tam set for 2/13/18 or 2/14/18, dates they are unavailable. A protective order and/or modification of subpoena changing the date of the deposition of Tam is also sought.

At the outset, the court notes that some of the above issues have been resolved; namely, the parties have stipulated to move the noticed dates of Tam’s and Galante’s depositions to 2/26/18 and 3/1/18, respectively. (See 2/1/18 Carson Decl., ¶ 2(a)&(b); 2/7/18 Tucker Decl., ¶ 4(a)&(b).

CALIFORNIA RULES OF COURT (“CRC”) RULE 3.1116 NON-COMPLIANCE:

At the outset, the court admonishes City for failing to comply with CRC Rule 3.1116(c) (i.e., “[t]he relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony”).

REQUEST FOR JUDICIAL NOTICE:

City’s request for judicial notice is denied. The court declines to consider any new arguments and evidence submitted in the City’s reply papers. See American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 (i.e., “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument”).

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, 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 § 1987.1(a). “The following persons may make a motion pursuant to subdivision (a): (1) A party. (2) A witness…(4) An employee.” CCP § 1987.1(b).

On 1/16/18, plaintiff substitute-served deposition notices and deposition subpoenas for Tam and Galante, noticing Tam’s deposition for 2/13/18 and Galante’s deposition for 2/14/18 (Tucker Decl., ¶ 3, Exhibit “B”). Galante is the City Attorney and Tam is the City Engineer and Development Services Director. (Motion, 1:9 and 1:19-20). On 1/18/18, City’s counsel sent a meet and confer letter to plaintiff’s counsel, along with objections, and advised, inter alia, that the subpoenas were improperly sub-served and that Galante’s proposed deposition improperly sought attorney-client privileged communications and attorney work product. (Id., Exhibit “C”). On 1/24/18, plaintiff served the receptionist at Aleshire & Wynder with a deposition subpoena and notice of deposition for Galante. (Id., ¶ 4, Exhibit “E”). Plaintiff also sub-served a notice of deposition and deposition subpoena on Tam on that date. (Id., Exhibit “F”). On 1/24/18, City’s counsel served a meet and confer letter. (Id., ¶ 4, Exhibit “G”). On 1/25/18, City served objections and advised of Galante’s and Tam’s unavailability for the scheduled dates. (Id., ¶ 5, Exhibit “H”). Counsel thereafter unsuccessfully met and conferred on 1/25/18 and 1/26/18, thus prompting the instant motion. (Id., Exhibits “I” and “J”).

It is undisputed that Galante is the City Attorney. The subject deposition subpoena and notice of deposition are devoid of any particular matters upon which Galante is to be examined; facially, then, said documents would trigger application of the attorney-client privilege and work product doctrine. “’The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship. [Citations.] Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply. [Citations.]’ (Costco [Wholesale Corp. v. Superior Court (209)] 47 Cal.4th [725,] at p. 733).” Bank of America, N.A. v. Superior Court of Orange County (2013) 212 Cal.App.4th 1076, 1099.

The motion to quash is granted, without prejudice to plaintiff reissuing a deposition subpoena setting forth the non-privileged particular matters upon which it seeks to depose Galante.