Discovery

In most arbitrations, the arbitrator decides any issues regarding discovery.  Not so in uninsured/underinsured motorist arbitrations under Ins. Code 11580.2(f).  The court decides discovery issues in those types of arbitration proceedings.  This decision holds that the trial court's discovery rulings cannot be challenged on an appeal from an order confirming the arbitration award because error in discovery rulings by a… Read More

The trial court did not abuse its discretion in denying plaintiff's motion to compel Yelp to produce the source code for its software that filters unreliable reviews from its website.  The battling experts disagreed as to the usefulness of the source code in proving whether Yelp's reviews were "trustworthy" as advertised.  Yelp demonstrated that production of the source code would… Read More

California's Electronic Discovery Act (CCP 1985.8) requires a trial court to protect a third party witness from undue burden and expense in producing electronically stored information in response to a third-party subpoena.  Here, the trial court properly applied the statute and did not abuse its discretion in ordering plaintiff to pay $130,000 which represented half the cost of the Department… Read More

The trial court did not abuse its discretion in awarding costs against plaintiff under CCP 2033.420 for having denied defendant's requests of admission regarding the breach of oral promise claim alleged in the complaint.  The evidence at trial showed that plaintiff could not have maintained a good faith belief, at the time he denied those requests, that he would prevail… Read More

Under the federal recalcitrant witness statute, 28 U.S.C. § 1826(a), when a witness refuses to testify or provide other information, including documentary evidence, the court “may summarily order his confinement . . . until such time as the witness is willing to give such testimony or provide such information.”  This decision holds that section 1826 applies to post-judgment as well… Read More

Though noting a split of authority on the issue, this decision follows Lossing v. Superior Court (1989) 207 Cal.App.3d 635 in holding that a civil contempt proceeding brought to enforce discovery orders (in this case, post-judgment discovery orders) cannot form the basis of a later malicious prosecution action. Read More

Noting the split of authorities on this issue, this decision follows Cooksey v. Alexakis (2004) 123 Cal.App.4th 246 in holding that a party who seeks a continuance under section 437c(h), must show why the discovery necessary to oppose the motion for summary judgment or summary adjudication could not have been completed sooner, and accordingly requires the court to grant the… Read More

Under CCP 2025.295, the deposition of a plaintiff can take no longer than 7 hours if (a) the action is for injury or illness from mesothelioma, and (b) a doctor certifies that the plaintiff suffers from mesothelioma raising a substantial medical doubt that plaintiff will survive beyond six months.  If more than 20 defendants appear at the deposition, the court… Read More

Like Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, this writ proceeding arises from Johnson & Johnson's discovery in the county's opioid UCL, FAL and public nuisance action.  J&J subpoenaed several non-party counties to produce records of opioid prescriptions and drug treatment records with intact personal identification information to J&J's third party vendor for it to de-identify… Read More

In a proceeding under 9 USC 7 to enforce a subpoena that an arbitrator has issued to a non-party witness, when no federal claim is at stake, a federal court has jurisdiction over the matter only if the requirements for diversity jurisdiction (including the amount in controversy requirement) are satisfied.  The amount in controversy exceeds $75,000, if the value of… Read More

An order compelling a non-party deponent attorney to disclose the identity of an expert non-witness consultant he hired in a prior case was not an appealable collateral order because it related to the subject matter of the plaintiff's suit against that expert for disclosing confidential material without permission.  But the court treated the appeal as a writ petition since the… Read More

The trial court did not abuse its discretion in awarding attorney fees against plaintiff under CCP 2033.420(a) for denying requests for admission denying factual allegations at the heart of the plaintiff's claims.  Plaintiff did not bear his burden of proving that he had reasonable grounds for his denial of those requests for admission.  The trial court's denial of defendant's non-suit… Read More

The trial court prejudicially erred in granting plaintiff's in limine motion to exclude defendant from introducing evidence and seeking allocation of fault to two defendants (the State of California and an adjoining landowner) which had settled out of the case before trial.  Under Prop. 51, a defndant is entitled to have the jury allocate fault (and thus the share of… Read More

Allegedly defamatory emails that Simplified sent Trinity and a co-defendant seeking documents and other information for its later-filed lawsuit were protected activity for purposes of the Anti-SLAPP statute (CCP 425.16(e)).  The emails were also protected by the absolute litigation privilege, so Trinity could not prove a probability of success on the merits.  The trial court properly granted Simplified's Anti-SLAPP motion… Read More

A subpoena served on a third party witness to produce business records is a deposition subpoena.  If the subpoenaed witness objects rather than producing the requested documents (in whole or in part), the subpoenaing party has 60 days to move to compel compliance with the subpoena.  Meet and confer efforts in the meanwhile do not continue the 60 day deadline… Read More

CCP 2019.210 provides that in a trade secret  misappropriation case under Civ. Code 3426, before commencing discovery relating to the trade secret, the party alleging the misappropriation shall identify the trade secret with reasonable particularity.  This decision holds that the plaintiff cannot wait to raise a new alleged trade secret in opposition to a summary judgment motion directed towards its… Read More

Under CCP 2023.010 and 2023.030, providing evasive or false discovery responses is a discovery abuse for which the court must grant the opposing party monetary sanctions unless it finds there was substantial justification for the discovery abuse or awarding sanctions would be unjust.  Here, the trial court found substantial abuse of discovery in providing false responses, but erroneously failed to… Read More

Three principles govern the award of monetary sanctions for discovery abuse.  First, the court must award monetary sanctions against the loser of a discovery motion unless it finds that either the loser acted with substantial justification or imposition of sanctions would be unjust under the circumstances.  Second, the monetary sanctions may only be imposed based on attorney fees and costs… Read More

This decision outlines the seven factors a trial court should consider in deciding a third party's motion to quash a subpoena served on it by a criminal defendant.  Most important of those factors, particularly when the subpoena seeks social media posts, are the defendant's proof of a plausible justification for needing the subpoenaed documents and the consideration of privacy and… Read More

Distinguishing Andrews v. Foster Wheeler (2006) 138 Cal.App.4th 96 and following Gaggero v. Yura (2003) 108 Cal.App.4th 884 instead, this decision holds that no logical inference that the plaintiff possesses no facts to support his claim can be drawn from the plaintiff's improper use of the procedure under CCP 2030.230 (pointing to documents from which an answer can be drawn)… Read More