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Fox Johns Lazar Pekin & Wexler, APC v. Superior Court (Brewer Corporation)

California Court of Appeals, Fourth District, First Division

September 24, 2013

FOX JOHNS LAZAR PEKIN & WEXLER, APC, et al., Petitioners,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent BREWER CORPORATION, Real Party in Interest.

Original proceeding on a petition for a writ of mandate challenging orders of the Superior Court of San Diego County, No. 37-2007-00074230- CU-BC-CTL William R. Nevitt, Jr., Judge.

Fox Johns Lazar Perkin & Wexler, George C. Lazar, and R. Gordon Huckins for Petitioner.

No appearance for Respondent.

Marks, Finch, Thornton & Baird, Jeffrey B. Baird and Jon F. Gauthier for Real Party in Interest.

HUFFMAN, J.

Fox Johns Lazar Perkin & Wexler (Fox Johns) represents Point Center Financial, Inc. (Point). Brewer Corporation (Brewer), among others, obtained a money judgment against Point, which is presently on appeal in a related case before this court. As part of its efforts to enforce the judgment, Brewer has proceeded with third party, postjudgment discovery against Fox Johns and Michael Wexler, the attorney at Fox Johns primarily responsible for representing Point during the underlying trial. To this end, Brewer served Fox Johns with a subpoena duces tecum for the production of documents and sought a third party judgment debtor examination of Wexler under Code of Civil Procedure[1] section 708.120.

After Fox Johns and Wexler objected to Brewer's examination of Wexler, Brewer moved to compel. The court granted Brewer's motion in part, ordering Wexler to answer certain questions at his examination. Fox Johns and Wexler subsequently moved to quash the order for Wexler to appear for examination, which the court denied. In addition, the court granted Brewer's motion, in part, to compel Fox Johns to produce documents under the subpoena duces tecum.

Fox Johns and Wexler appeal the order denying their motion to quash the order to appear as well as the order granting, in part, Brewer's motion to compel further responses and documents to the subpoena. Although they raise multiple issues, we focus on their contention that the requested discovery exceeds the limited scope and purpose of a third party examination as permitted under section 708.120. This is a matter of first impression.

We agree that the discovery Brewer seeks here is beyond the scope of what section 708.120 permits. In addition, although we are not convinced that the superior court's orders are appealable, nonetheless, under the unusual circumstances of this case, we reach the merits by treating the appeal as a petition for a writ of mandate.

FACTUAL AND PROCEDURAL HISTORY

Brewer, among other plaintiffs, pursued certain claims against Point involving bond stop notices. At trial, Wexler was Point's counsel. After a trial of this action, a money judgment of more than $2.7 million was entered against Point. Point has appealed that judgment, which is currently pending in this court.

The plaintiffs, including Brewer, wasted little time enforcing the judgment. They examined Point's chief financial officer under section 708.110 and received a voluminous document production of financial and other records by Point. They also engaged in third party discovery. To this end, they sought to examine Wexler, who continues to represent Point in this matter and is Point's "lead appellate counsel" as well.

Under section 708.120, Brewer obtained an order to examine Wexler. At the examination, Wexler refused to answer a number of questions. Wexler's refusal led to Brewer's motion to compel further answers. The superior court granted in part and denied in part Brewer's motion. The order, dated July 5, 2012, stated that Wexler was to answer 10 questions. The order does not list the specific questions, but instead, refers to portions of the examination transcript containing the questions.

In response to the order, Wexler offered to appear at a resumed examination and only answer the 10 questions referred to in the order. Once he answered these questions, Wexler would terminate the examination. Although they met and conferred, the parties could not agree on the scope of the examination. Accordingly, Brewer obtained a new order to appear requiring Wexler to appear for examination on July 25, 2012. Brewer also served Wexler with a subpoena duces tecum for personal appearance and the production of documents for the same date. In response, Fox Johns and Wexler applied ex parte for a continuance of the examination and to set a hearing date for a motion to quash the order for appearance and the subpoena. Fox Johns and Wexler also served a written response to the subpoena.

The court continued the examination and set a hearing on Fox Johns and Wexler's motion to quash the order for appearance and the subpoena for August 24, 2012. Brewer filed a motion to compel further responses to the subpoena as well as production of additional documents, which was set to be heard on September 7, 2012. The court consolidated the proceedings and heard both motions on September 7, 2012.

After considering the pleadings, evidence, and oral argument, the court issued two minute orders wherein it denied Fox Johns and Wexler's motion to quash the order of appearance, but granted in part and denied in part, both the motion to quash the subpoena and Brewer's motion to compel further responses and additional documents. The second order, however, required Fox Johns to produce certain documents in response to the subpoena.

Fox Johns and Wexler appealed the orders.

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