OSC re Dismissal
At bar, Birnberg formerly represented Plaintiffs in the action and in a related case, and Birnberg was involved in the construction project dispute. Pruna Decl., ¶ 3. Further, on June 2, 2025, Birnberg filed a Notice of Charging Lien asserting a lien against any recovery obtained by Plaintiffs for attorney’s fees and costs. Pruna Decl., Ex. B. Therefore, Birnberg has put at issue his own financial interest in the case. Additionally, Birnberg’s prior representation of Plaintiffs in the action put at issue professional liability matters making his insurance documents relevant.
Next, Birnberg argues the deposition subpoena violates his privacy rights by requesting insurance documents. The Court again disagrees.
“A party may obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.” Code Civ. Proc. § 2017.210. “Insurance policies are subject to a request for production...” which is limited to discovery of the “contents” of the insurance policies. Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 734-735.
Therefore, the content of insurance policies for the subject time period are not shown to be privileged and may lead to admissible evidence. Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579, 598. “Liability insurance policies are discoverable “to avoid a situation where any party argues language in the policy precludes coverage in this matter.” Ibid. To the extent the deposition subpoena seeks the contents of the insurance policies (namely Request Nos. 1-4, 8, 10), the motion to compel is granted and the motion to quash is denied, subject to a protective order in a form submitted by counsel and approved by the Court, or any privilege log Birnberg may file.
To the extent the deposition subpoena seeks documents, communications, or correspondence exceeding the contents of insurance policies (namely Request Nos. 5-7, 9) the motion to compel is denied and the motion to quash is granted.
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Sanctions
Both parties request sanctions in connection with their respective motions. Although both parties have been successful in part, the respective actions do not constitute a misuse of the discovery process and both were unsuccessful, in part. Therefore, each of the parties’ requests for monetary sanctions are denied.
In light of the Court’s addressing both the Motion to Quash and the Motion to Compel simultaneously, the Court directs counsel for Plaintiffs’ to prepare an order after hearing as to both motions setting forth the Court’s ruling herein verbatim and to file and serve a corresponding notice of entry which, again, shall be deemed to pertain to ruling on both motions.
5. CU0001498 Robin Fladeboe et al vs. Gail H Beardsley et al
Appearance required by Plaintiffs to show cause as to why this case should not be dismissed and/or Plaintiffs sanctioned for failure to file a Request for Dismissal despite the fact a Notice of Settlement was filed nine (9) months ago indicating a request for dismissal would be filed no later than April 30, 2026. Absent good cause being shown, the Court intends, on its own motion, 5
to set the matter for dismissal pursuant to CCP section 583.420 and sanction each plaintiff $250.00.
6. CU0001584 Matthew Coulter vs. Mark Olsen et al
Plaintiff Matthew Coulter’s demurrer to Defendants’ answer to the Third Amended Complaint (TAC) is OVERRULED with respect to the first, eighth, and eleventh affirmative defenses, and otherwise SUSTAINED with thirty (30) days leave to amend.
Legal Standard
A party against whom an answer has been filed may object by demurrer on the following grounds: (a) the answer does not state facts sufficient to constitute a defense, (b) the answer is uncertain, or (c) where the answer pleads a contract and it cannot be ascertained from the answer whether the contract is written or oral. Code Civ. Proc. § 430.20. A demurrer may be taken to the entire answer or to any one or more of several defenses in it. Code Civ. Proc. § 430.50(b). “A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732. The allegations of the pleading demurred to are regarded as true. Ibid.
“Unlike the usual general demurrer to a complaint the inquiry is not into the statement of a cause of action. Instead it is whether the answer raises a defense to the plaintiff's stated cause of action.” Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880 (emphasis in original). The analysis of whether an answer states a defense is governed by the same principles as that of whether a complaint states a cause of action. South Shore Land Co., supra, 226 Cal.App.2d 725, 732.
The sufficiency of an answer is evaluated with reference to the complaint it purports to answer. South Shore Land Co., supra, 226 Cal.App.2d 725, 733. A defendant must set forth only the “essential facts” of the affirmative defense, “sufficient to acquaint [plaintiff] with the nature, source and extent” of the defense. Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608. This is known as the “fair notice” test. Ibid. “There is no need to require specificity in the pleadings because “modern discovery procedures necessarily affect the amount of detail that should be required in a pleading.” Ibid.
Code of Civil Procedure § 431.30(b) provides that an answer to a complaint shall contain: (1) the general or specific denial of the material allegations of the complaint controverted by the defendant, and (2) a statement of any new matter constituting a defense. “The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff. Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as ‘new matter.’” State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725, internal citations omitted. Where, however, the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not ‘new matter,’ but only a traverse.” State Farm Mut. Auto. Ins. Co., supra, 228 Cal.App.3d at 725. Traverse need not be specifically alleged. Ibid.
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