Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of mandate L.A.S.C. No. BC365455, Michael L. Stern, Judge.
A. Tod Hindin and Karen L. Hindin for Petitioners.
No appearance for Respondent.
Steptoe & Johnson, Ruth D. Kahn, Matthew A. Williams; Burris & Schoenberg, Don Burris and Laura G. Brys for Real Parties in Interest.
OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
INTRODUCTION
Where a motion to quash a subpoena is “reasonably made,” must the superior court consider the motion on its merits? We conclude that it must.
FACTS
Gail Hollander and Stanley Hollander (hereinafter the Hollanders) sued XL Specialty Insurance Group (and various other parties, including additional insurance carriers), alleging XL breached its contracts with the Hollanders, committed torts, and violated Insurance Code statutes in failing to reimburse the Hollanders for the loss of three works of fine art, each appraised at a value exceeding $100,000. The Hollanders set forth causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, promissory fraud, violation of Insurance Code section 785, and negligence.
Discovery commenced. The Hollanders served deposition subpoenas on the broker from whom the Hollanders purchased their policies, DeWitt Stern of California Insurance Services and DeWitt Stern Group (hereinafter DeWitt Stern). The subpoena sought production of all documents relating to the Hollanders and XL Specialty Insurance. That subpoena is not the subject of this petition.
XL then served deposition subpoenas on DeWitt Stern, basically requesting that DeWitt Stern provide tangibles documenting, inter alia, all its communications with the Hollanders and their lawyers and accountant.
With a date of June 19 set for the deposition, XL served subpoenas on the Hollanders’ counsel on May 30, 2007. On June 14, the Hollanders filed their motion to quash; the hearing was set for July 16. The Hollanders contended that the documents were protected from disclosure by the attorney-client privilege and their right to privacy.
In opposition to the motion to quash, XL Specialty Insurance’s lawyer, Edward Gartenberg, stated in his declaration: “On Wednesday, June 13, 2007 I attended a deposition in an unrelated case. After leaving the deposition, I learned that Mr. Hindin had called my office. I promptly returned his call from my car and then called him again, together with Kristin Sciarra, an associate at my firm, after having arrived at my office. As I recall, the conversation took place in the late afternoon. Mr. Hindin stated that he wanted to meet and confer with respect to the subpoenas issued on behalf of the XL Defendants to DeWitt Stern of California, Inc. and De Witt Stern Group, Inc. (collectively referred to herein as ‘DeWitt Stern’). I explained that I would be happy to ‘meet and confer’ with him on the matter later that week but that I wanted an opportunity to consider the issues in order to engage in a meaningful meet and confer process. Mr. Hindin refused and said he was filing his motion to quash the next morning.”
Respondent court denied the motion, stating at the hearing and in the minute order that there was “insufficient meet and confer.”
DISCUSSION
Code of Civil Procedure section 1987.1 requires that a motion to quash a subpoena be “reasonably made,” but does not require that the parties first resolve the issue informally. Section 1987.1 provides in its entirety: “When 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 the party, the witness, or any consumer described in Section 1985.3, 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 such 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 parties, the witness, or the consumer from unreasonable or oppressive demands including unreasonable violations of a witness’s or consumer’s right of privacy. Nothing herein shall require any witness or party to move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer served under paragraph (1) of subdivision (b) of Section 1985.3.”
We need not reach the issue of whether the records sought are “consumer” records. However, if the records sought are consumer records, then, section 1985.3, subdivision (g), authorizes the consumer to move to quash under section 1987.1: “Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.”
We note that subdivision (g) of section 1985.3 expressly requires a party moving to enforce the subpoena—but not to quash it—to include “a declaration showing a reasonable and good faith attempt at informal resolution of the dispute between the party requesting the personal records and the consumer or the consumer’s attorney.” (§ 1985.3, subd. (g).) There is no such burden on the party trying to quash the subpoena of consumer records.
Section 1987.1 requires that a motion to quash be reasonably made, but does not require a party seeking to quash a subpoena to make reasonable or good faith efforts to meet and confer.
The Hollanders’ motion to quash was reasonably made as they asserted in the motion that the documents were protected from disclosure by the attorney-client privilege (Evid. Code, § 954) and their right to privacy (Cal. Const., art. I, § 1); and the motion was filed timely. (Lee v. Swansboro Country Property Owners Assn. (2007) 151 Cal.App.4th 575, 583.) Accordingly, respondent court abused its discretion in denying the motion on this basis.
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.” (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the court’s intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
That real party in interest denominates the opposition as “preliminary” does not change this fact.
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its July 16, 2007 order, denying the motion to quash in Los Angeles Superior Court case No. BC365455, and, as soon as practicable, to conduct a new hearing to consider the motion on its merits.
The temporary stay order is hereby terminated.
The parties shall bear their own costs.
MALLANO, Acting P. J. VOGEL, J. ROTHSCHILD, J.