Case Number: BC682495 Hearing Date: January 07, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

shelsee parada,

Plaintiff,

v.

julian pablo valdez,

Defendant.

Case No.: BC682495

Hearing Date: January 7, 2019

[TENTATIVE] order RE:

defendant’s Motion to Compel Non-Party Parker Stanbury, LLP to Comply with a Deposition Subpoena for Production of Documents

Background

Plaintiff Shelsee Parada (“Plaintiff”) alleges that she suffered injuries in a motor vehicle collision with Defendant Julian Pablo Valdez (“Defendant”). In response to Defendant’s interrogatories, Plaintiff admitted that she sustained injuries in a prior motor vehicle collision, which was the subject of a different lawsuit. Third party Parker Stanbury, LLP (“Deponent”) appeared as her counsel in the other lawsuit. Defendant seeks to compel Deponent to comply with a deposition subpoena for the production of any non-privileged documents about Plaintiff. The motion is granted.

Discussion

Code of Civil Procedure section 1987.1 provides that “[i]f 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 [a party or a witness] . . . 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.” (Code Civ. Proc., § 1987.1, subd. (a).) Defendant personally served deponent with a subpoena for the production of records about Plaintiff on August 6, 2018. (Declaration of Heather M. Roth, Exhibit B.) Service of that subpoena compels Deponent to make the requested records available for inspection and copying. (See Code Civ. Proc., § 2020.020, subd. (b).) If Deponent believes it has grounds to refuse to comply with the subpoena because, for instance, all documents it prepared about Plaintiff are privileged, it should have moved for a protective order, or objected to the deposition subpoena. Alternatively, Deponent could have appeared at the time set for the inspection of its records, and raised its objections then. (Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1290.) In this case, however, it appears that Deponent simply ignored Defendant’s subpoena, which is not permissible.

Per Code of Civil Procedure section 1985.3, any records or data about an individual in the possession of an attorney are personal records. (See Code Civ. Proc., § 1985.3, subd. (a)(1).) Prior to serving a subpoena on a third party for the production of personal records, the party seeking the discovery must serve a copy of the subpoena on the individual to whom the records pertain, in this case Plaintiff. (Code Civ. Proc., § 1985.3, subd. (e.) The party must serve the copy of the subpoena on the individual to whom the records pertain at least ten days before the date set forth in the subpoena for production of the records, and at least five days before service of the subpoena on the third party. (Code Civ. Proc., § 1985.3, subd. (b)(2)-(3).) Defendant served Plaintiff by mail on July 27, 2018. That is more than ten days for the date set for inspection of the documents, and more than five days before Defendant served Deponent. (Declaration of Healther M. Roth, Exhibit B.) Plaintiff did not object to the production. Accordingly, Deponent should have complied with the subpoena, objected to the subpoena, or filed a motion to excuse its compliance.

Defendant seeks sanctions against Deponent. The Court declines to impose sanctions at this time. As Deponent is a law firm, the Court assumes that all responsive documents were prepared in the course of representing Plaintiff in the prior action and therefore are subject to attorney-client privilege, as well as attorney work product protection. For this reason, the Court cannot conclude that Deponent refused to comply with the subpoena in bad faith or without justification. The Court therefore declines to award sanctions. (Code Civ. Proc., § 1987.2.) However, if Deponent does not comply with this Court’s order, the Court will revisit the issue of discovery sanctions.

Conclusion and Order

Based on the foregoing, Defendant’s motion to compel third party Parker Stanbury, LLP to comply with the deposition subpoena for the production of documents is granted. Parker Stanbury, LLP must make any non-privileged documents about Plaintiff that it created in the ordinary course of business available for inspection. If no such documents exist, or if all responsive documents are subject to attorney work product protection, Parker Stanbury, LLP

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must so state under oath. Parker Stanbury, LLP is ordered to respond within twenty (20) days of receiving notice of this order. Defendant is ordered to provide notice of this order and file proof of service of such.

DATED: January 7, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Super