Defendant Karma Automotive, LLC (formerly known as Fisker Automotive and Technology Group, LLC)?s motion to quash Plaintiff Ashwin Balan?s deposition subpoenas for production of business records (e.g., billing records) served upon Defendant?s counsel Vedder Price and Heather M. Sager is granted for several reasons.
Here, the records sought are (1) ?[a]ll records that relate to Attorneys Fees charged to Karma Automotive, LLC, et al in this case?; (2) ?[a]ll records that reflect payment by KARMA to VEDDER PRICE for work performed in this case?; (3) ?[a]ll records that state the amount of the bills sent to VEDDER PRICE for work performed for KARMA in this case?; and (4) ?[a]ny ledgers that who [sic] the amounts billed to KARMA by VEDDER PRICE and the amount KARMA paid.? ??Because of the nature of the subpoenas, the discovery motion cut-off deadline does not appear to be applicable.? Defendant has adequately met and conferred.
First, the documents requested in the subpoenas at issue are the personal records of a consumer under Code of Civil Procedure section 1985.3. Plaintiff failed to address whether he served a consumer notice.? Plaintiff cannot evade the consumer notice required under section 1985.3. (See Code Civ. Proc., ? 1985.3, subd. (a)(1) [defining ?personal records? to include writing maintained by any ?witness,? including an attorney]; Sasson v. Katash (1983) 146 Cal.App.3d 119, 124 [?[A]s we see it, the purpose of section 1985.3 is to protect a consumer’s right to privacy (Cal. Const., Art. I, ? 1) in his personal records maintained, or kept, by his attorney, accountant, doctor, banker, etc.?].) Plaintiff?s failure to serve the consumer notice invalidates the service of the subpoena. (Code Civ. Proc., ? 1985.3, subd. (k).)
Second, and more importantly, depositions of opposing counsel are ?presumptively improper, severely restricted, and require ?extremely? good cause ? a high standard.?? (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562.) The following factors determine whether an opposing-counsel deposition is allowable:
- whether the party seeking the deposition has other practical means to obtain the information sought;
- whether it is crucial to preparation of the case; and
- whether the information sought is subject to a privilege claim.
(See id. at p. 1563.)? The party seeking the deposition has the burden of proving the first two factors, above. However, the burden of proving the third factor (information subject to a privilege claim) lies with the party opposing the deposition. (Id. at pp. 1563-1564.)
Here, Plaintiff asserts that the billing records are relevant as to the amount of reasonable attorney?s fees that should be awarded to Plaintiff.? This assertion seems somewhat incredible because the subpoenas were served upon Defendant?s counsel on October 14, 2016, before Plaintiff could even assert that he had prevailed on any of his claims.? This Court had not even ruled on the cross motions for summary judgment and/or adjudication.? The motions were initially denied.? Not until November 9, 2016, did the Court determine that Plaintiff was entitled to severance.
Nevertheless, even if Plaintiff now asserts that the billing records are relevant, he has not shown that they are crucial for the Court?s determination of reasonable attorney fees.? In Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154, the Court explained:
The determination of what constitutes a reasonable fee generally ?begins with the ?lodestar,? i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.? (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095, 95 Cal.Rptr.2d 198, 997 P.2d 511.) ?[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.? (Ketchum v. Moses(2001) 24 Cal.4th 1122, 1132, 104 Cal.Rptr.2d 377, 17 P.3d 735 (Ketchum), citing Serrano v. Priest (1977) 20 Cal.3d 25, 49, 141 Cal.Rptr. 315, 569 P.2d 1303 (Serrano III); see also Serrano v. Unruh (1982) 32 Cal.3d 621, 626, fn. 6, 186 Cal.Rptr. 754, 652 P.2d 985 (Serrano IV ) [lodestar figure may be enhanced or diminished based on factors as those set out in Serrano III ].) This approach ?anchors the trial court’s analysis to an objective determination of the attorney’s services, ensuring the amount awarded is not arbitrary.? (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095, 95 Cal.Rptr.2d 198, 997 P.2d 511.)
The Court recognizes that how much opposing counsel billed for the same or similar tasks in the same case may be probative.? (See In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 584-585.)? However, the billing records for opposing counsel are not crucial for a lodestar analysis. There may not be other practical means to obtain opposing counsel?s billing records, but there are other ways to address the factors for a lodestar analysis.
Moreover, the information in billing records are protected by the attorney-client privilege.? (See Los Angeles County Board of Supervisors v. Superior Court (Dec. 29, 2016, S226645) __ Cal.5th __ [2016 WL 7602131] at p. *6 [when a legal matter remains pending and active, the attorney-client privilege encompasses everything in the invoice]; Evid. Code, ? 950, et seq.)? Plaintiff has not met his burden of proving extremely good cause to obtain the billing records of opposing counsel.
Here, it appears that Plaintiff subpoenaed Defendant?s counsel to harass opposing counsel.? The Court orders Plaintiff?s counsel to pay $3,195 to Vedder Price, LLP in sanctions within 30 days of the notice of ruling.? (Estate of Ruchti (1993) 12 Cal.App.4th 1593, 1602-1603; Code Civ. Proc., ? 2023.010.)
In both the memorandum of points and authorities in support of the motion to quash and in the reply, Defendant cited and provided to the Court a copy of an unpublished California Court of Appeal opinion (Walley v. Superior Court).? Defendant?s counsel is admonished that counsel is prohibited from citing unpublished California opinion.? (Cal. Rules of Court, rule 8.115(a).)
Defendant shall give notice of the ruling.