Tentative Rulings

Case Number: EC066729    Hearing Date: November 08, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

Plaintiffs Zachary J. McDonald and Hugo Vargas each commenced a wage-and-hour lawsuit against Defendants Michael Russell McMillan, M&M Custom Flooring, and M&M Custom Floors, Inc. This consolidated action also includes various cross-complaints. Mike McMillan filed a cross-complaint against Zachary McDonald, Daniel McDonald, Evelyn McDonald for assault and battery, wherein he alleges he was physically attacked by Daniel McDonald on December 24, 2016.

On October 2, 2017, Cross-Complainant M&M Custom Floors, Inc. (“M&M”) filed a cross-action against Zachary McDonald, Daniel McDonald, Evelyn McDonald, and Livin’ Right Floors, Inc. (“LRF”) (together, “Cross-defendants”) based on allegations that Daniel McDonald wrongfully took possession of tools and equipment and its trade secrets were misappropriated. M&M asserts causes of action for: (1) conversion (against all Cross-defendants), (2) constructive fraud (against all Cross-defendants), (3) breach of fiduciary duty (against Cross-defendants Zachary McDonald and Daniel McDonald), (4) misappropriation of trade secrets (against all Cross-defendants), (5) intentional interference with a prospective economic advantage (against all Cross-defendants), and (6) indemnity and contribution (against Cross-defendant Daniel McDonald).

On October 15, 2019, M&M filed 2 motions for a court order compelling compliance with civil subpoenas duces tecum for production of business records at trial from: (1) Gould & Associates and (2) the Law Offices of Meyers and Burnett. M&M also seeks sanctions against Evelyn McDonalds and her attorney of record, Jonathan Nguyen, Esq., to pay monetary sanctions for bringing the motions.

On October 28, 2019, Evelyn McDonald filed a single opposition to both motions.

DISCUSSIOn

1. Timeliness

In the opposition, Evelyn McDonald argues that the motions are untimely because Trial is set for November 12, 2019 and the motions are set for hearing November 8, 2019. She relies on CCP §2024.020, arguing that the motions violate the discovery cut-off period.

CCP §2024.020 states: “any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (CCP §2024.020.) CCP §2024.020 is under the provisions of Title 4—“Civil Discovery Act.” CCP §2016.010 states: “This title may be cited as the ‘Civil Discovery Act.’” Differently, CCP §1987 is under Title 3—“Of the Production of Evidence.”

Evelyn McDonald has not cited any case law or code sections showing that M&M’s subpoenas are subject to the discovery cut-off proscribed in the Civil Discovery Act. The Court also notes that M&M field these motions pursuant to CCP §§1985, 1987, 1987.1(a), and 1987.5, which are not part under a different title of the code.

As such, M&M’s subpoenas and its motions to compel compliance thereto, are not subject to the cut-off periods provided for in the Civil Discovery Act.

1. Discussion of Merits

M&M seek records from Gould & Associates and Meyers and Burnett, arguing that Evelyn McDonald objected to each category of documents requested to be produced at trial.

The subpoenas request that the custodian of records from the two law firms appear in person as witnesses to Department B on November 12, 2019 at 9:30 a.m. The subpoenas request that following documents be produced: (1) a fully executed settlement agreement in two cases that Evelyn McDonald was involved in; (2) settlement payments made to Evelyn McDonald in those cases; (3) copies of all checks made to Evelyn McDonald thereto; and (4) copies of all checks to her counsel in those cases. Evelyn McDonald was involved in two prior lawsuits: (1) Evelyn McDonald v. Dunlap Property Group, Inc. (Orange County Superior Court, Case No. 30-2010-00415726-CU-OE-CJC, “Dunlap case”) where she was represented by Gould & Associates, and (2) Evelyn McDonald v. Robbie Gaze (Orange County Superior Court, Case No. 30-2011-00443395-CU-PA-CJC, “Gaze case”) where she was represented by Meyers and Burnett.

Evelyn McDonald argues that the motion is premature since the date to comply with the subpoenas is November 12, 2019, which is after the hearing on the motions. However, even if the compliance date is later, Evelyn McDonald does not deny that she has objected to the subpoenas. Thus, the Court does not find that the motions are necessarily premature. (The Court notes that since Evelyn McDonald is a party to this action, she should have moved to quash the subpoenas.)

M&M seeks the records pertaining to two settlements Evelyn McDonald entered into as a result of the Gaze and Dunlap cases. It argues there is good cause for the documents because they will tend to show whether Zachary McDonald needed money or made an effort to see a doctor. M&M cites to Zachary McDonald’s deposition where he testified that he began working for M&M in 2011 and started suffering from emotional distress thereafter, but did not seek medical treatment for his emotional distress claim because he did not have money to afford a doctor his parents. He also states that his parents (Daniel and Evelyn McDonald) not have money. (Murphy Decl. re Meyers and Burnett, Ex. 1 [Z. McDonald Depo. at pp.153-159].) Evelyn McDonald also testified in her deposition she had no money to give Zachary McDonald to assist him with his emotional distress. (Id. at Ex. 3 [E. McDonald Depo. at pp.32-33, 65-66, 68-69, 182].)

However, the Court does not find that M&M has established good cause for these documents. The requests violate Evelyn McDonald’s right of privacy in her individual financial information and M&M has not shown why such privacy rights should be disregarded. Evelyn McDonald has not put her finances at issue in this case. In addition, the pretrial discovery of financial information is not permitted. (See Civ. Code, §3295.)

A need for the information may come up in the event that Plaintiff offers testimony by Evelyn McDonald or Zachary McDonald to the effect that she did not have money for medical care. Nevertheless, the Court will wait to see if such evidence develops at trial. Generally, the Court would discourage such evidence. Attempting to do so by way of looking into Evelyn McDonald’s finances is attenuated at best.

CONCLUSION AND ORDER

M&M’s motions to compel compliance with the subpoenas issued on Gould & Associates and the Law Offices of Meyers and Burnett are denied. M&M’s request for sanctions is denied. Evelyn McDonald’s request for sanctions will be deferred until after trial when it is determined whether her testimony that might make such documents relevant is offered.

Evelyn McDonald shall provide notice of this order.