Yates v. Yee Mei Cheung & Family et al

Filing 42

ORDER re 41 Blueprints filed by Craig Yates. Signed by Judge Maria-Elena James on 4/10/2012. (cdnS, COURT STAFF) (Filed on 4/10/2012)

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TIMOTHY S. THIMESCH, Esq. (No. 148213)
158 Hilltop Crescent
Walnut Creek, CA 94576-3452
Direct: [phone]
Facsimile: [phone]
[e-mail]

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Attorneys for Plaintiff CRAIG YATES

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RICHARD L. BECKMAN, ESQ.
SBN 148375
BECKMAN MARQUEZ & DOWLING LLP
[e-mail]
Central Tower Building
703 Market Street, Suite 1610
San Francisco, CA 94103
Tel: [phone]
Fax: [phone]

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Attorneys for Defendants VILLAGE PIZZERIA; VILLAGE PIZZERIA,
INC.; and MACIEL CICERO

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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CRAIG YATES,

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CASE NO. CV-10-05404 MEJ
Civil Rights

Plaintiff,

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v.

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YEE MEI CHEUNG & FAMILY; YEE
MEI CHEUNG; TAT CHEUNG; MACIEL
CICERO; LAGHAEI FARID; WAI BING
CHEUNG; YOUNG NG YING; VILLAGE
PIZZERIA; VILLAGE PIZZERIA,
INC.; THIDWICK BOOKS; LEA GREY;
PERIOD GEORGE; GIBSON LINES,
LLC; DONALD GIBSON; AND DOES 1
THROUGH 50, INCLUSIVE,

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Defendants.

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STIPULATION AND [Proposed]
ORDER RE BLUEPRINTS

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TO THE COURT:

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WHEREAS the construction history of the building and public

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158 HILLTOP CRESCENT
WALNUT CREEK, CA
94597-3452
[phone]

sidewalk

at

Nos.

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–

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Clement

Stipulation and Proposed Order Re Blueprints: Case No. CV-10-05404 MEJ

Street,

San

Francisco,

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California, (hereafter “Subject Building”) is at issue in this

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case;
WHEREAS, the Custodians of Records Of The City and County of

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San

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Planning Department (AKA The “City of San Francisco Building and

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Planning Departments”) are in possession of certain blueprints,

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schematics and drawings related to the design and construction of

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the

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construction history and liability issues in this case, or will

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Francisco

subject

Department

building

of

that

Building

are

Inspection

potentially

and

relevant

of

to

the

the

lead to the discovery of admissible evidence on such issues,
WHEREAS the Parties desire to obtain certified copies from

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the

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discovery and evidentiary purposes,
WHEREAS

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Building

and

Planning

Plaintiff

has

Department

served

a

of

these

subpoena

documents

on

the

for

Building

Department and Planning Departments at Exhibits 1 and 2,
WHEREAS building departments in California typically assert

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that

blueprints,

schematics

and

drawings

are

allegedly

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“privileged” material, and that such departments are constrained by

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Health & Safety Code Section 19851 from producing copies of such

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documents, even when served with a federal subpoena, i.e., unless,

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inter alia, they are ordered by the Court to do so (see example

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from the City of Los Angeles Building Department at Exhibit 3),

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California Health and Safety Code Section 19851 provides

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that the official copy of building plans maintained by the

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building department of a city “may not be duplicated in

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whole or in part except (1) with the written permission,

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which permission shall not be unreasonably withheld as

158 HILLTOP CRESCENT
WALNUT CREEK, CA
94597-3452
[phone]

Stipulation and Proposed Order Re Blueprints: Case No. CV-10-05404 MEJ

—2—

WHEREFORE,

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HEREBY

ALL

PARTIES

REQUEST

that

WHO

HAVE

the

Court

SO

FAR

order

APPEARED
the

IN

THIS

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ACTION

Building

and

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Planning Departments to produce all blueprints, schematics and

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drawings and any other allegedly privileged material requested by

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specified in subdivision (f), of the certified, licensed

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or registered professional or his or her successor, if

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any, who signed the original documents and the written

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permission of the original or current owner of the

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building, or, if the building is part of a common interest

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development, with the written permission of the board of

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directors or governing body of the association established

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to manage the common interest development, or (2) by order

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of a proper court or upon the request of any state

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agency.”

158 HILLTOP CRESCENT
WALNUT CREEK, CA
94597-3452
[phone]

(Emphasis added.)

Stipulation and Proposed Order Re Blueprints: Case No. CV-10-05404 MEJ

—3—

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Plaintiff in the Subpoenas at Exhibits 1 and 2.
SO STIPULATED.

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Dated: March 31, 2012

TIMOTHY S. THIMESCH
THIMESCH LAW OFFICE

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Attorneys for Plaintiff
CRAIG YATES

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Dated: March 31, 2012

RICHARD L. BECKMAN, ESQ.
BECKMAN MARQUEZ & DOWLING LLP

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/s/ Authorized Signed
Attorneys for Defendants
VILLAGE PIZZERIA; VILLAGE PIZZERIA,
INC.; and MACIEL CICERO

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ORDER

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SO ORDERED.

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.

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Dated:

April 10, 2012
HON. MARIA-ELENA JAMES
MAGISTRATE Judge
U.S. District Court

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158 HILLTOP CRESCENT
WALNUT CREEK, CA
94597-3452
[phone]

Stipulation and Proposed Order Re Blueprints: Case No. CV-10-05404 MEJ

—4—

EXHIBIT 1

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT
for the
__________District of California
Northern District of __________
Craig Yates
Plaintiff

v.
Yee Mei Cheung & Family, et al.
Defendant

)
)
)
)
)
)

Civil Action No.

CV-10-05404 MEJ

(If the action is pending in another district, state where:
__________ District of __________

)

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
To: San Francisco Department of Building Inspection, 1660 Mission Street, San Francisco, CA 94103
’ Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the
material: Certified Copies of the Records Listed in Exhibit 1

Place: San Francisco Department of Building Inspection, 1660

Date and Time:

Mission Street, San Francisco, CA 94103

05/03/2012 10:00 am

’ Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Place:

Date and Time:

The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule
45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are
attached.
Date:

03/31/2012

CLERK OF COURT
OR
Signature of Clerk or Deputy Clerk

Attorney’s signature

The name, address, e-mail, and telephone number of the attorney representing (name of party)
Plaintiff Craig Yates
, who issues or requests this subpoena, are:
TIMOTHY S. THIMESCH, ESQ. (NO. 148213); THIMESCH LAW OFFICES, 158 Hilltop Crescent, Walnut Creek, CA
04597-3452; 925-588-0401

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No. CV-10-05404 MEJ
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
This subpoena for (name of individual and title, if any)
was received by me on (date)

.

’ I served the subpoena by delivering a copy to the named person as follows:
on (date)

; or

’ I returned the subpoena unexecuted because:
.
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
tendered to the witness fees for one day’s attendance, and the mileage allowed by law, in the amount of
$
My fees are $

.
for travel and $

for services, for a total of $

0.00

I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

Print

Save As...

Add Attachment

Reset

.

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)
(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or
attorney responsible for issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena. The issuing court must enforce this
duty and impose an appropriate sanction — which may include lost
earnings and reasonable attorney’s fees — on a party or attorney
who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or
to permit the inspection of premises, need not appear in person at the
place of production or inspection unless also commanded to appear
for a deposition, hearing, or trial.
(B) Objections. A person commanded to produce documents or
tangible things or to permit inspection may serve on the party or
attorney designated in the subpoena a written objection to
inspecting, copying, testing or sampling any or all of the materials or
to inspecting the premises — or to producing electronically stored
information in the form or forms requested. The objection must be
served before the earlier of the time specified for compliance or 14
days after the subpoena is served. If an objection is made, the
following rules apply:
(i) At any time, on notice to the commanded person, the serving
party may move the issuing court for an order compelling production
or inspection.
(ii) These acts may be required only as directed in the order, and
the order must protect a person who is neither a party nor a party’s
officer from significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must
quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party’s officer
to travel more than 100 miles from where that person resides, is
employed, or regularly transacts business in person — except that,
subject to Rule 45(c)(3)(B)(iii), the person may be commanded to
attend a trial by traveling from any such place within the state where
the trial is held;
(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by
a subpoena, the issuing court may, on motion, quash or modify the
subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information;
(ii) disclosing an unretained expert’s opinion or information that
does not describe specific occurrences in dispute and results from
the expert’s study that was not requested by a party; or
(iii) a person who is neither a party nor a party’s officer to incur
substantial expense to travel more than 100 miles to attend trial.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(c)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under
specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably
compensated.

(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information.
These procedures apply to producing documents or electronically
stored information:
(A) Documents. A person responding to a subpoena to produce
documents must produce them as they are kept in the ordinary
course of business or must organize and label them to correspond to
the categories in the demand.
(B) Form for Producing Electronically Stored Information Not
Specified. If a subpoena does not specify a form for producing
electronically stored information, the person responding must
produce it in a form or forms in which it is ordinarily maintained or
in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One
Form. The person responding need not produce the same
electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored
information from sources that the person identifies as not reasonably
accessible because of undue burden or cost. On motion to compel
discovery or for a protective order, the person responding must show
that the information is not reasonably accessible because of undue
burden or cost. If that showing is made, the court may nonetheless
order discovery from such sources if the requesting party shows
good cause, considering the limitations of Rule 26(b)(2)(C). The
court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed
information under a claim that it is privileged or subject to
protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents,
communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will enable the
parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may notify any
party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has; must not use
or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it
before being notified; and may promptly present the information to
the court under seal for a determination of the claim. The person
who produced the information must preserve the information until
the claim is resolved.
(e) Contempt. The issuing court may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena. A nonparty’s failure to obey must be excused if the
subpoena purports to require the nonparty to attend or produce at a
place outside the limits of Rule 45(c)(3)(A)(ii).

“Exhibit 1” TO SUBPOENA IN A CIVIL CASE:

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YOU and YOUR as used herein refer to CUSTODIAN OF RECORDS,

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CITY

AND

COUNTY

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INSEPCTION

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BUILDING AND SAFETY”).

(AKA

OF

SAN

THE

FRANCISCO

“CITY

OF

SAN

DEPARTMENT
FRANCISCO

OF

BUILDING

DEPARTMENT

OF

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PLEASE PRODUCE ANY AND ALL DOCUMENTS WHATSOEVER IN

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YOUR POSSESSION, CUSTODY, CARE AND/OR CONTROL THAT RELATE TO

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the building located at or near Nos. 1 – 11 Clement Street, San

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Francisco, California, Block 1433, Lot 037, and Assessor Volume

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#10.

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(including,

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entrances, hallways, tenant spaces, public restrooms, etc., at

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such location, and/or any part thereof).

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includes any and all documents related to YOUR communication

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with

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property, and its agents, employees and attorneys, including,

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but not limited to, the following:

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This includes the building and the surrounding premises

the

but

not

owners,

a)

limited

operators,

Building,

to,

the

managers,

Planning,

sidewalk,

walkway,

The subpoena also

and

Zoning

lessors,

and

of

such

Permits,

Applications, and Inspection Records;

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b)

Correspondence;

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c)

Memorandums;

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d)

Notes;

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e)

Your Reports Concerning the Subject Property;

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f)

Your

Billings,

Invoices,

and

Receipts,

Contracts, Etc.;

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g)

Surveys;

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h)

Historical Data;

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i)

Photographs;

"Exhibit 1" to Deposition Subpoena:
Case No. CV-10-05404 MEJ

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— 1 —

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j)

Construction Invoices, Billings, Etc.

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k)

Inventories,

Interviews,

Copies

of

Historical

Records and Articles;

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l)

Blueprints;

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m)

Written Findings Concerning Historical Fabric;

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n)

Any and All Documents That Refer or Relate to

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Communications With the City and County of San

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Francisco Departments in charge of building and

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planning functions;
o)

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Any and All Documents That Refer or Relate to

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Communications

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Rehabilitation

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Barriers

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Architect;
p)

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With

Section

the

Mobility
and

the

State
and
Office

Department

of

Communications
of

the

State

Any and All Documents That Refer or Relate to

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Communications with the City and County of San

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Francisco Board of Supervisors;
q)

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Any and All Documents That Refer or Relate to

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Communications with the City and County of San

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Francisco City Council;
r)

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Any and All Documents That Refer or Relate to

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Exceptions Granted or Sought for ‘Unreasonable

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Hardship’ From Title 24 Requirements;
s)

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Consultation With Local Disabled Advocacy

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Any and All Documents That Refer or Relate to

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"Exhibit 1" to Deposition Subpoena:
Case No. CV-10-05404 MEJ

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Groups;

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Dated: March 31, 2012

Thimesch Law Offices

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Attorneys for Plaintiff
CRAIG YATES

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"Exhibit 1" to Deposition Subpoena:
Case No. CV-10-05404 MEJ

— 3 —

EXHIBIT 2

EXHIBIT 3

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COP

CARMEN A. TRUTANICII, City Attorney (SBN 86629)
TAYO A. POPOOLA, Deputy City Attorney (SBN 134564)
ALAN W. BLACKMAN, Deputy City Attorney (SBN 2161 43)
MICHAEL J. BOSTROM, Deputy City Attorney (SBN 211778)
700 City Hall East
200 North Main Street
Los Angeles, CA 90012
Telephone: [phone]
Facsimile:213.978.8214
E-Mail: Michael .Bostrom(,lacity.org
Attorneys for Third Party
CITY OF LOS ANGELES DEPARTMENT OF BUILDING
AND SAFETY

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA

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Case No. CV-1051 1-PA (AGRx)

HUGH MARSH, et al.
Plaintiffs,

Honorable Percy Anderson

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THIRD PARTY CITY OF LOS
ANGELES DEPARTMENT OF
BUILDING AND SAFETY’S
OBJECTIONS TO SUBPOENA FOR
PRODUCTION OF RECORDS

GRAND KYOTO HOTEL, et al.
Defendant.

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Third Party City of Los Angeles Department of Building and Safety

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(“LADB S”) hereby objects to Plaintiff Hugh Marsh’s July 4, 2010 document

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subpoena requesting “blueprints” related to the hotel property located at 120 South

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Los Angeles Street.
California Health and Safety Code Section 19851 provides that the official

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copy of building plans maintained by the building department of a city “may not be

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duplicated in whole or in part except (1) with the written permission, which

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permission shall not be unreasonably withheld as specified in subdivision (f), of the

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certified, licensed or registe.red professional or his or her successor, if any, who

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signed the original documents and the written permission of the original or current

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owner of the building, or, if the building is part of a common interest development,

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with the written permission of the board of directors or governing body of the

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association established to manage the con-imon interest development, or (2) by order

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of a proper court or upon the request of any state agency.”
Plaintiff has not provided LADBS with authorization from the building owner

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or the design professional who signed the blueprints at issue in the subpoena. Nor

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has Plaintiff provided LADBS with a Court Order pursuant to California Health and

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Safety Code Section 19851. As such, state law prohibits LADBS from providing a

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copy of the requested blueprints in response to the subpoena. LADB S may only

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make the blueprints available for inspection.
LADBS takes no position on whether or not the Court in this action should

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issue an order under California Health and Safety Code Section 19851 authorizing

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the release of the requested blueprints.

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/1

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II
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Should the Court issues such an Order, LADBS will produce the requested
blueprints within a reasonable period of time.

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Dated: July 8, 2010

CARMEN A. TRUTANICH, City Attorney
TAYO A. POPOOLA, Deputy City Attorney
MICHAEL J. BOSTROM, Deputy City Attorney
ALAN W. BLACKMAN, Deputy City Attorney

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By____
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MYCHAEL J. BOSTROM
Deputy City Attorney
Attorneys for Third Party
CITY OF LOS ANGI1ES DEPARTMENT OF
BUILDING AND SAFETY

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M:\REAL PROP ENV_LAND USE\LAND USE\MTCHAEL
BOSTROM\MARSFf\PLEADINGS\OBJECTIONS TO SUBPOENADOC