Opinion
A169651
10-25-2024
BROTHERS SMITH, LLP, Petitioner, v. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY, Respondent; JANICE L. ALAMILLO, Real Party in Interest.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Case No. MSC20-01810
BROWN, P. J.
Petitioner Brothers Smith LLP (Brothers Smith), a law firm, is a nonparty to the case Alamillo v. Alamillo Rebar et al. (Super. Ct. Contra Costa County, No. C20-01810), in which real party in interest Janice Alamillo filed suit against numerous defendants alleging they engaged in fraud to deprive her of certain assets from a family business after her marriage ended. Alamillo served Brothers Smith with third-party discovery seeking records related to the law firm's communications with various defendants. After Brothers Smith responded to the discovery with only objections, the trial court granted Alamillo's motion to compel the firm's compliance. Brothers Smith now seeks a writ of mandate directing the trial court to reverse its order. We shall issue a peremptory writ granting the petition in part.
FACTUAL AND PROCEDURAL BACKGROUND
In the litigation underlying this discovery dispute, Alamillo alleges her former husband and other defendants engaged in a fraudulent scheme designed to deny her assets from a family business she and her former husband had founded. She claims the scheme perpetrated by defendants caused her shares in the business to decrease by over $10 million. Brothers Smith served as corporate counsel to some of the defendant businesses.
On June 17, 2022, Alamillo served Brothers Smith with a deposition subpoena for production of business records seeking 46 categories of documents generally related to its communications with various defendants and any documents Brothers Smith provided them (the "First Subpoena"). On July 1, 2022, Brothers Smith responded with only objections, without producing documents.
In a letter dated August 24, 2022, Alamillo initiated a meet and confer with Brothers Smith over its objections. Alamillo noted that on August 11 and 12, she had reached out to Brothers Smith to obtain an extension of time to move to compel in advance of the approaching deadline, which she determined was September 4, 2022. In its August 31, 2022 letter response, Brothers Smith noted that Alamillo's motion to compel deadline was in fact the day prior, August 30, 2022, as that date was 60 days from the date of Brothers Smith's July 1 objections. The firm anticipated that any motion to compel brought by Alamillo would ultimately be denied as untimely.
On September 2, 2022, pursuant to local rules, Alamillo filed a request for an informal conference in the trial court regarding her discovery dispute with Brothers Smith.
To resolve her discovery dispute, Alamillo also engaged the efforts of the appointed discovery referee, but Brothers Smith challenged the referee's jurisdiction over it as a nonparty. On September 2, 2022, following a discovery management conference, the discovery referee filed a recommendation with the trial court, recommending that any discovery dispute involving Brothers Smith be heard by him pursuant to his appointment order. The referee also asserted that any briefing schedule for a motion to compel by Alamillo should be deferred to resolve Brothers Smith's jurisdictional objection. On September 22, 2022, the trial court adopted the referee's recommendation authorizing his jurisdiction over discovery disputes involving Brothers Smith.
On October 22, 2022, following another discovery management conference at which Brothers Smith did not appear, the discovery referee filed a memorandum report and order with the trial court. The referee noted the trial court had signed his recommended order directing the discovery dispute between Alamillo and Brothers Smith to be heard by the referee and directed Alamillo to provide Brothers Smith the order. Subsequently, the referee set Alamillo's motion to compel against Brothers Smith for hearing before the referee.
On January 6, 2023, Alamillo moved to compel Brothers Smith's compliance with the First Subpoena she had served on June 17, 2022. Brothers Smith opposed the motion on multiple grounds, including untimeliness.
Following the hearing on the motion, the referee filed his recommendation with the trial court. Noting Brothers Smith's objections were deficient, the referee recommended the trial court order Brothers Smith to comply with Alamillo's subpoena. Given that many of the documents requested likely implicated privilege and privacy concerns, the referee recommended Brothers Smith be required to produce a privilege log for documents not produced. The referee further recommended the court grant a request for sanctions against Brothers Smith that Alamillo had included in the motion.
Brothers Smith filed extensive objections to the referee's recommendations, emphasizing the untimeliness of the motion. Alamillo responded to the objections.
On July 24, 2023, the trial court (Hon. Jill Fannin) issued an order denying Alamillo's motion to compel Brothers Smith's compliance with her third-party discovery due to untimeliness. The court explained, "Based on Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th, 1030-1035 and Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 321, among others, the court finds that plaintiff's failure to file her motion to compel within the 60-day window made the motion untimely. The 60-day deadline is mandatory. See, e.g., Weinstein." At the conclusion of its order, the court added: "The Court [r]ecommends that plaintiff immediately serve the deposition subpoena, or one substantially similar, on [Petitioner] and be ready with its motion to compel/meet and confer letter should [Petitioner] elect to serve objections again. Then the parties can simply end up with the same order the Discovery Referee has already prepared. Alternatively, [Petitioner] could simply accept the order, sans the sanctions, and move on without additional expense."
On July 25, 2023, Alamillo served Brothers Smith with a second deposition subpoena for production of business records (the "Second Subpoena"). This one sought 73 categories of records. The first 46 requests were substantively similar to the first 46 requests in the First Subpoena. The remaining 27 categories of records sought, however, were entirely new. On August 17, 2023, as before, Brothers Smith responded to the Second Subpoena with only objections and without producing documents or a privilege log.
On September 28, 2023, Alamillo withdrew the Second Subpoena, indicating her intent to cure a deficiency identified in Brothers Smith's objections - the lack of notice to consumers whose records were being sought through a third-party subpoena - and to serve a new subpoena.
On September 28, 2023 - the same day Alamillo withdrew her Second Subpoena - Alamillo served Brothers Smith with a third deposition subpoena for production of business records seeking the 73 categories of records it had sought in the prior subpoena (the "Third Subpoena"). This subpoena purportedly corrected the prior lack of notice defect, but the 73 categories of records sought were otherwise substantively similar to those in the prior subpoena. On October 20, 2023, Brothers Smith again responded with objections, including untimeliness, and produced neither documents nor a privilege log.
On November 9, 2023, Alamillo filed directly in the trial court a motion to compel Brothers Smith's compliance with the Third Subpoena. On January 17, 2024, following briefing and a hearing, the trial court (Hon. Terri Mockler) granted the motion to compel. The court ordered Brothers Smith to provide a privilege log and detailed schedule for producing the requested documents within 30 days of the order.
Brothers Smith then filed the instant writ petition challenging the court's order granting the motion to compel. We stayed the trial court's January 17, 2024 order compelling compliance, requested informal briefing, issued a notice pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 which advised the parties that this court was considering issuing a peremptory writ in the first instance, and granted Alamillo's request to augment the record.
DISCUSSION
Brothers Smith argues Alamillo's motion to compel filed in response to the Third Subpoena was untimely. According to Brothers Smith, Alamillo's failure to file timely motions to compel responses to her first two subpoenas foreclosed her ability to move to compel compliance with her duplicative third subpoena. We agree in part.
I. General Law
In California, discovery may be obtained from a nonparty through an oral deposition, a written deposition, or a deposition for the production of business records and things. (Code Civ. Proc., § 2020.010, subd. (a).) "A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired." (§ 2020.410, subd. (a).)
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
"If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production." (§ 2025.480, subd. (a).) "This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration." (§ 2025.480, subd. (b), italics added.) In Board of Registered Nursing v. Superior Court, supra, 59 Cal.App.5th 1011 (Nursing), one of the cases cited by Judge Fannin in her July 24, 2023 order, the court explained that the nonparty's service of objections triggers the requesting party's window in which to force the nonparty to comply with the production requests. (Id. at p. 1032 ["The deposition was therefore complete when these objections were served, and the 60-day period to file a motion to compel began on that date"]; see also Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127, 136 [objections served in response to a business records subpoena constituted a" 'record of deposition'" (italics omitted) under § 2025.480, subd. (b), triggering the 60-day deadline for subpoenaing party to move to compel].)
In Weinstein v. Blumberg, supra, 25 Cal.App.5th 316 (Weinstein), the other case cited by Judge Fannin, the court noted that "discovery deadlines are mandatory" and have been "treated [by courts] as jurisdictional." (Id. at p. 322, fn. 3.) "Where a party does not obtain trial court relief from the statutory deadline, 'failure to move for further answers within the statutory time forecloses further relief.'" (Ibid.; see also O'Brien v. Superior Court (1965) 233 Cal.App.2d 388, 391 ["The conclusion that failure to move for further answers within the statutory time forecloses further relief is supported by the rule which requires a party to make his objections to the [discovery requests] within the statutory time, or be thereafter precluded from asserting them"].)
"In general, we review the trial court's ruling on a motion to compel discovery for an abuse of discretion, because the trial court is vested with wide statutory discretion to manage discovery." (Pomona Valley Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692.)
II. Analysis
Here, we agree that Alamillo did not timely move to compel responses to requests Nos. 1 through 46 in the Third Subpoena ("Requests 1-46"). However, we do not agree that her motion to compel was untimely with respect to requests Nos. 47 through 73 in that subpoena ("Requests 47-73").
A. Requests 1-46
Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490 (Career Colleges), illustrates the untimeliness of Alamillo's motion with respect to Requests 1-46. There, the plaintiff propounded a set of interrogatories, including an interrogatory seeking the addresses of students who enrolled in a program during a specified period. (Id. at p. 492.) The defendant objected, and the plaintiff made no motion to compel a further response. (Ibid.) A month and a half later, the plaintiff propounded a second set of interrogatories on the defendant with mostly new interrogatories but also including an interrogatory that sought essentially the same information as the interrogatory in the first set (i.e., addresses of students who enrolled in a program during a specific period). (Ibid.) After the defendant objected on the ground that the interrogatory in the second set was the same as the interrogatory from the first set - to which the plaintiff had not sought to compel any response - the plaintiff moved to compel. (Ibid.)
On appeal, the court concluded the motion was untimely. (Career Colleges, supra, 207 Cal.App.3d at p. 494.) The court asked, "[W]here a party has clearly failed to meet the time limits, may he reset the clock through the stratagem of asking the same question again?" (Id. at p. 493.) It concluded that such a "ploy cannot succeed," reasoning that "it would be an absurdity to say that a party who fails to meet the time limits of section 2030 may avoid the consequences of his delay and lack of diligence by propounding the same question again. Such a construction of the statute would obviously encourage delay and provide no incentive to attempt to resolve any dispute with the opposing party." (Id. at pp. 493, 494.) The court granted a peremptory writ in the first instance to vacate the trial court order granting the motion to compel and to enter a new order denying the motion. (Id. at p. 494.)
Like the plaintiff in Career Colleges, Alamillo has effectively attempted to "reset the clock" as to Requests 1-46. These requests sought substantially the same categories of records in Alamillo's First Subpoena, but Judge Fannin denied Alamillo's motion to compel compliance under the First Subpoena due to untimeliness. Judge Fannin expressly found Alamillo's motion to compel compliance with the First Subpoena untimely because she failed to file it within the 60-day deadline. As a result of her failure to timely file, Alamillo waived any right to compel responses to the same requests in the Third Subpoena. (See Weinstein, supra, 25 Cal.App.5th at p. 322, fn. 3 [party's failure to move for answers within the statutory time forecloses further relief].) Thus, under the rationale of Career Colleges, Alamillo could not move to compel compliance with Requests 146, as she had previously propounded that discovery in her First Subpoena but had failed to move to compel in a timely manner. "There is no opportunity or occasion to file multiple, piecemeal motions to compel." (Nursing, supra, 59 Cal.App.5th at p. 1035.)
Alamillo contends Career Colleges is distinguishable because that case involved interrogatories, not a deposition subpoena for records. This is not a meaningful distinction on the issue before us. Alamillo offers no compelling explanation for why the waiver consequences for failure to comply with motion to compel deadlines for one discovery method should be different from another. She points to nothing about interrogatories to persuade us that the established consequences of a party's failure to timely move to compel interrogatory responses should not apply equally to her failure to timely move to compel responses to her record requests. Indeed, in Nursing, supra, 59 Cal.App.5th 1011, the subpoenaing parties' failure to file a motion to compel within 60 days of receiving objections foreclosed their ability to later move to compel compliance with their discovery. (Id. at p. 1035.)
Alamillo also contends that Career Colleges is distinguishable because the propounding party there served identical requests twice, whereas she propounded "three entirely different sets of requests." (Bold and underline omitted.) With respect to Requests 1-46, Alamillo overstates the differences between her multiple subpoenas. Requests 1-46 in the Third Subpoena were substantially similar to the 46 categories of records sought in the First Subpoena. For instance, request No. 1 in the First Subpoena sought "Any and ALL DOCUMENTS which EVIDENCE YOUR COMMUNICATIONS with the Law Offices of John Manoogian including but not limited to John Manoogian." Request No. 1 in the Third Subpoena sought "Any and ALL DOCUMENTS (excluding DOCUMENTS which are PRIVILEGED COMMUNICATIONS, if any), created since December 31, 2015 through the present, which EVIDENCE, REFER, or RELATE TO YOUR COMMUNICATIONS with the Law Offices of John Manoogian including but not limited to John Manoogian." Contrary to Alamillo's assertion, such minor alterations did not transform Requests 1-46 into "entirely different" requests, since they effectively sought the same records as before. As a result, they did not "reset the clock" for Alamillo to move to compel after her initial deadline expired. (See Career Colleges, supra, 207 Cal.App.3d at p. 492 [slight changes in wording between interrogatories that sought to elicit the same information were for all intents and purposes the same].)
Recognizing the significance of Judge Fannin's untimeliness ruling on Alamillo's first motion to compel as to the First Subpoena, Alamillo further argues the order was "incorrectly decided." She describes the court's view on the timeliness of her motion to compel as dicta, and asserts the ruling actually extended Alamillo's deadline to move to compel to allow the parties further meet and confer opportunities as long as she served a new subpoena. Alamillo misconstrues the two-page order. As discussed earlier, the sole reason Judge Fannin denied Alamillo's motion was because she found Alamillo "fail[ed] to file her motion to compel within the 60-day window." The only two cases cited by Judge Fannin supported this position. The untimeliness of Alamillo's motion was not dicta but rather central to the order denying Alamillo relief.
Nor did Judge Fannin err in finding Alamillo's motion untimely. Alamillo served Brothers Smith with the First Subpoena on June 17, 2022. Brothers Smith served its objections on July 1, 2022. At that point, Alamillo had 60 days in which to meet and confer and, if unsatisfied, file a motion to compel. (See § 2025.480, subd. (b); Nursing, supra, 59 Cal.App.5th at p. 1035.) In her initial meet and confer letter, Alamillo even acknowledged this 60-day time frame and her prior efforts to extend it, but she never secured any extension. Accordingly, her motion to compel compliance with the First Subpoena, filed on January 6, 2023 - approximately four months after her deadline expired - was untimely. Thus, Judge Fannin's untimeliness ruling provides a sound basis for our ruling here that Alamillo waived her right to compel responses to Requests 1-46 in the Third Subpoena.
We need not determine the exact date on which Alamillo's 60-day deadline expired, which was the subject of disagreement between the parties, as pinpointing the date with precision is unnecessary given that Alamillo's initial motion to compel compliance was unquestionably filed months after the 60-day deadline.
Alamillo next asserts that her motion to compel deadline was tolled by both the discovery referee and Judge Fannin's order. Again, we disagree. By the time the trial court affirmed the referee's jurisdiction over the Brothers Smith discovery dispute on September 22, 2022, the 60-day motion to compel deadline had already expired. The same applies to Judge Fannin's order, which did not discuss any deadline extensions.Alamillo identifies no order, ruling, or stipulation that ever extended her deadline to move to compel under the First Subpoena.
For this reason, we need not address the propriety of Judge Fannin's "[r]ecommend[ation]" that Alamillo should again serve the deposition subpoena or a substantially similar one and be ready with a motion to compel to "end up with the same order" the discovery referee had previously entered.
Alamillo finally contends that Brothers Smith is judicially estopped from contesting the timeliness of her first motion to compel compliance with the First Subpoena. But Alamillo includes no argument to support this claim, so we disregard it. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785) [appellant has burden to show error with reasoned argument and citation to authority]; Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [same]).
None of Alamillo's other arguments merits a different result or further discussion. (Kirchmeyer v. Helios Psychiatry Inc. (2023) 89 Cal.App.5th 352, 364).
B. Requests 47-73
Requests 47-73, however, are subject to a different analysis. We conclude the trial court did not err in compelling Brothers Smith's compliance as to these requests.
It is undisputed that Requests 47-73 were not included in the First Subpoena. Those requests were thus not subject to Judge Fannin's order finding Alamillo's motion to compel untimely. Alamillo had not previously failed to meet her motion to compel deadline with respect to Requests 47-73 and did not waive her ability to do so when she filed her November 9, 2023 motion to compel compliance with the Third Subpoena.
Brothers Smith argues Alamillo lost the right to compel responses to these newer requests because she never moved to compel compliance after the firm had made timely objections to the Second Subpoena, in which these requests first appeared. We disagree. By withdrawing the Second Subpoena - thereby freeing Brothers Smith from any obligation to respond to that subpoena - Alamillo was no longer subject to the 60-day deadline for moving to compel responses, and thus did not waive her right to move to compel responses to the similar requests (Requests 47-73) in the Third Subpoena. Career Colleges does not apply to these newer requests because it did not consider the impact of withdrawn discovery on motion to compel deadlines.
C. Brothers Smith's Remaining Contentions
We do not consider Brothers Smith's remaining arguments regarding the scope of Alamillo's discovery, her meet and confer efforts, and whether her conduct warrants sanctions. These matters were expressly excluded from our request for additional briefing, as they involve routine discovery disagreements that do not merit review by extraordinary writ. (See Oceanside Union School District v. Superior Court (1962) 58 Cal.2d 180, 185-186, fn. 4; Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1396-1397.)
DISPOSITION
Let a peremptory writ of mandate issue directing respondent superior court to vacate its February 7, 2024 order granting Alamillo's motion to compel and to enter a new and different order granting the motion in part and denying the motion in part. The new order shall grant the motion with respect to Requests 47-73 in the Third Subpoena but deny the motion with respect to Requests 1-46 in the Third Subpoena. The temporary stay previously issued by this court is dissolved. Our decision is immediately final as to this court. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The parties shall bear their own costs.
WE CONCUR: GOLDMAN, J., DOUGLAS, J. [*]
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.