Who You Givin’ Only One Star?

Yelp Inc. v. Superior Court, No. G054358 (D4d3 Nov. 13, 2017)

Discovery of anonymous poster information from Internet companies has been a hot topic in Court of Appeal lately. In the past year or so, there’s been a case about Google, and a pair of cases involving Glassdoor. This time it’s Yelp.

Following the first Glassdoor case—the court finds that Yelp had standing to raise its customer’s interest in remaining anonymous, because Yelp’s ability to maintain its reviewers anonymity is part and parcel of its very business. But then following the test from the second Glassdoor case, the court finds that the plaintiff has nonetheless made a sufficient prima facie showing of defamation to get at the information. So the court affirms the trial court’s order to produce the info. It reverses, however, on discovery sanctions. Given that the Glassdoor cases were decided after the trial court’s order, the issues presented in the dispute were novel enough that Yelp’s arguments in resisting the discovery were substantially justified.

Writ denied, sanctions order reversed.

Fast and Loose Doesn’t Look Good on You

Padron v. Watchtower Bible & Tract Society of N.Y., Inc., No. D070723 (D4d1 Nov. 9, 2017)

In a child sex abuse case against a Church, the Church is stonewalling about producing documents detailing other abuse incidents. In another, related case, it previously convinced the Court of Appeal that terminating sanctions weren’t appropriate, in lieu of a coercive monetary penalty that could exceed the propounding party’s costs of litigating the discovery issue. See Lopez v. Watchtower Bible and Tract Society of New York, Inc., 246 Cal. App. 4th 566 (2016). So when the Church kept stonewalling in this case, following Lopez, the trial court found a willful refusal to comply with its discovery orders to produce exactly the same documents and by fined it $4,000 per day of noncompliance. The Church appeals, again.

But this time it doesn’t end well.

A Little Meta, But the Code Still Applies

City of L.A. v. Superior Court, No. B269525 (D2d7 Mar. 20, 2017)

Discovery in a public records act case is kind of confusing. After all, the whole purpose of the case is basically discovery. In this writ, the issue is whether, and to what extent, the Civil Discovery Act applies in cases brought under the Public Records Act.
 

Too Creative . . .

Haniff v. Superior Court, No. H043345 (D6 Mar. 1, 2017)

The trial court ordered a personal injury to submit to a vocational rehabilitation exam to examine his capacity for other work in the future. The exam is basically an interview, along with some aptitude and interest testing. Defendants wanted it to show mitigation against Plaintiff’s wage loss claims.

But Plaintiff took a writ, which the Court of Appeal grants. Discovery in California is a creature of statute; parties can’t get forms of discovery that aren’t authorized. Code of Civil Procedure § 2019.010 lists those methods: “(1) oral and written depositions; (2) interrogatories to a party; (3) inspections of documents, things, and places; (4) physical and mental examinations; (5) requests for admissions; and (6) simultaneous exchanges of expert trial witness information.” Submitting to a vocational rehabilitation exam is not one of them. Nor, contrary to Defendant’s argument, was the exam authorized by § 2017.010, which broadly defines the scope, not the methods, of discovery.

Writ granted.

A Deposition Is a Business Records Subpoena Is a Deposition

Naser v. Lakeridge Athletic Club, No. A138353 (D1d5 June 27, 2014)

Losing plaintiff appeals denial of motion to tax costs. The court decides two issues: First, jury fees are recoverable costs even if the case doesn’t make it to jury trial. Code of Civil Procedure § 631, as recently amended, requires a non-refundable deposit of $150 in jury fees on before the first CMC. Since there’s no chance for a refund even if, for instance, the defendant wins on summary judgment, the fee that can be recovered as cost under § 1033.5(a)(1). Second, the defendant can recover the cost of subpoenaing documents under the provision that allows recovery of deposition costs. Somewhat anomalously, the Discovery Act calls a third party document subpoena where no testimony is sought a “deposition” subpoena. See § 2020.010. So, although it seems semantically wacky, costs incurred in issuing and enforcing such a subpoena are thus costs of “[t]aking, video recording, and transcribing necessary depositions including . . . travel expenses to attend depositions” under § 1033(a)(3).

Affirmed.

Trial Courts Have Inherent Authority to Police Bad Conduct in Expert Disclosure

Cottini v. Enloe Med. Cntr., No. C068915 (D3 May 21, 2014)

The critical question we must resolve is whether or not the trial court, on the objection of a party who has made a complete but untimely compliance with the expert witness exchange requirements of Code of Civil Procedure section 2034.260, has the authority to exclude from evidence expert testimony offered by a party who has completely and unreasonably failed to comply with these same requirements prior to the discovery cutoff date.

 (footnote omitted).

The answer, according to the court, is yes.

Fun Times with the Interstate & International Depositions & Discovery Act

Digital Music News LLC v. Superior Court, No. B242700 (D2d1 May 14, 2014)

 The court here grants a writ. It orders the trial court to vacate an order compelling the production of documents subpoenaed by a party in an out-of-state litigation.

A Funny Business Records Subpoena ...

Dodd v. Cruz, No. B247493 (Feb. 5, 2013)

The court of appeal holds that the merits of a motion to quash a deposition subpoena seeking business records can be addressed as part of an interlocutory appeal of sanctions awarded along with a quashal. The court then reverses the quashal because the documents sought were, in fact, discoverable. 

So Much for the Routine Protective Order

Nativi v. Deutsche Bank National Trust Company, No. H037715 (D6 Jan 23, 2014)

This meat of case deals with a significant issue in mortgage foreclosure law: when is a foreclosing bank required to honor a tenant’s lease to the foreclosed property. (You’ll have to read the opinion if you want the answer to that question.) But it also addresses an interesting issue about protective orders. It holds that the trial court abused its discretion by granting a contested motion for protective order. Notably, the order the court gets reversed for entering contained many of the stock provisions that are common fare in the routine protective orders to which parties regularly stipulate.

The Discovery Act Is Not a Suicide Pact.

Certainteed Corp. v. Superior Court, No. B253308 (D2d3 Jan 8, 2014)

In a case that spanned barely two weeks from writ petition to writ granted, the court of appeal grants a peremptory writ ruling that the trial court has the discretion to permit a terminally ill plaintiff’s deposition to extend beyond the newly-imposed fourteen hour limit in Code of Civil Procedure § 2025.290(b)(3).