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DERICK E. KONZ, ESQ., SB No. 286902
ANGELO, KILDAY & KILDUFF, LLP
Attorneys at Law
601 University Avenue, Suite 150
Sacramento, CA 95825
Telephone: (916) 564-6100
Telecopier: (916) 564
Attorneys for Nonparty SANDRA L. McLEAN
PUBLIC ENTITY, FILING FEES WAIVED PURSUANT TO GOV’T CODE §6103
SUPERIOR COURT OF CALIFORNIA
COUNTY OF BUTTE
JOSEPH ROBINSON, Case No.: 19CV03693
Plaintiff, NONPARTY SANDRA L. McLEAN’S
AMENDED(AS TO DATE ONLY)
vs. NOTICE OF MOTION AND MOTION
TO QUASHPLAINTIFF’S SUBPOENA
CHARLES DURAN, et al., FOR PERSONAL APPEARANCE AND
PRODUCTION OF DOCUMENTS AT
Defendants. TRIAL
Date: March 10, 2021
Time: 9:00 a.m.
Dept: TBD
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on March 10, 2021, at 9:00 a.m. or as soon thereafter as this
matter may be heard, in a Department TBD of the above-captioned Court, 1775 Concord Ave.
Chico, CA SANDRA L. MCLEAN, Judge of the Superior Court of California, County of Butte
(“JUDGE MCLEAN”), will and hereby does move for an order quashing two subpoenas issued
by Plaintiff JOSEPH ROBINSON (“ROBINSON”) to JUDGE MCLEAN requesting that she
appear and testify and produce documents at the April 26, 2021 trial in this case.
NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S
SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL
This motion is brought pursuant to Code of Civil Procedure n the following
grounds:
JUDGE MCLEAN is precluded from testifying pursuant to Evidence Code section
and
he proffered evidence, whether testimonial or documentary, is protected by the
deliberative process privilege.
PLEASE TAKE FURTHER NOTICE that JUDGE MCLEAN will and hereby does request
a stay of compliance with the subpoena nding a determination of this motion.
Said motion will be based upon this Notice, the accompanying Memorandum of Points and
Authorities, the Declaration of Derick E. Konz, the pleadings and papers on file in this action, and
upon such other and further matters as the Court may consider at or before the hearing.
Tentative rulings on law and motion matters will be available on the Court’s website at
www.buttecourt.ca.gov and by telephone at (530) 532 7022 by 3:00 p.m. on the court day
preceding the hearing.
Dated: February 1, 2021 ANGELO, KILDAY & KILDUFF, LLP
By:________________________________
DERICK E. KONZ
Attorneys for Non Party
SANDRA L. MCLEAN
Plaintiff ROBINSON and counsel for JUDGE MCLEAN have met and conferred over this issue
by telephone and email, but could not come to an agreement and thus now require Court
intervention. See Declaration of Derick Konz at ¶ 4 and Exhibit C
NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S
SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL
MEMORANDUM OF POINTS ANDAUTHORITIES
INTRODUCTION
Non Party JUDGE MCLEAN respectfully requests an Order quashing two subpoena
served on her Plaintiff ROBINSON in the above entitled action. Both subpoena request that
JUDGE MCLEAN testify at the April 26, 2021 trial in this matter as to her issuance of an arrest
warrant in 2005 and basis for its issuance
JUDGE MCLEAN is precluded from testifying trial pursuant to Evidence Code section
703.5. Additionally, the proffered evidence, whether testimonial or documentary, is protected by
the deliberative process privilege.
FACTS
This is a civil action in which Plaintiff ROBINSON alleges a single cause of action for
“Intentional Tort” against Defendant CHARLES DURAN. Court trial is currently set for April
On January 6, 2021, ROBINSON served JUDGE MCLEAN with a subpoena requesting
that she appear as a witness at the April 26, 2021 trial in this matter. (Konz Declaration at Exhibit
.) The subpoena indicates that JUDGE MCLEAN will be asked to testify as to “the cause for
your Arrest Warrant in case number SCR105957.” (Id.)
On January 8, 2021, ROBINSON served JUDGE MCLEAN with a second subpoena,
requesting that she appear as a witness at the April 26, 2021 trial in this matter and produce
“[i]nformation that caused [JUDGE MCLEAN] to sign [an] Arrest Warrant in SCR105957
(Konz Declaration at Exhibit .) (Id.)
NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S
SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL
ARGUMENT
UTHORITY TO UASH UBPOENA
Motions to quash are governed by Code Civ. Proc. section 1987.1, which provides, in
pertinent part:
(a) If a subpoena requires the attendance of a witness or the
production of books, documents, or other things before a court, or at
the trial of an issue therein…the court, upon motion reasonably
made by [a witness], or upon the court’s own motion after giving
counsel notice and an opportunity to be heard, may make an order
quashing the subpoena entirely, modifying it, or directing
compliance with it upon those terms or conditions as the court shall
declare, including protective orders. In addition, the court may make
any other order as may be appropriate to protect the person from
unreasonable or oppressive demands[]…
Here, the challenged subpoenas request the attendance of JUDGE MCLEAN at the April
26, 2021, trial in this matter. Counsel for JUDGE MCLEAN has informally attempted to resolve
the issue with ROBINSON since receipt of the subpoenas, but to no avail. (Konz Declaration at ¶
.) Accordingly, JUDG E MCLEAN is bringing this motion as soon as practicable and well before
the date for compliance, and requesting a stay of compliance pending a ruling on the motion.
HE UBPOENAS HOULD UASHED ECAUSE UDGE EAN IS RECLUDED ROM
ESTIFYING URSUANT TO VIDENCE ODE 703.5.
Under Evidence Code section and subject to extremely narrow exceptions not
relevant here:
No person presiding at any judicial or quasi judicial proceeding, and
no arbitrator or mediator, shall be competent to testify, in any
subsequent civil proceeding, as to any statement, conduct, decision,
or ruling, occurring at or in conjunction with the prior
proceeding
Thus, the Legislature has disqualified judges from testifying as witnesses in subsequent judicial
proceedings about matters they presided over , including statements, conduct, decisions or rulings
occurring at or in conjunction with prior proceeding. (Evid. Code § 703.5.) Here, ROBINSON
seeks testimony and documents from JUDGE MCLEAN in a subsequent civil proceedingthe
NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S
SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL
April 26, 2021 trial of this matterregarding her decisions and rulings and issuance of warrant
for his arrest approximately five (5) years ago in connection with a prior proceeding, in her role as
a Judge of the Superior Court of California, County of Butte Such testimony is precluded under
section 703.5.
JUDGE MCLEAN also has no recollection of the case or anything to add regarding her
signing of an arrest warrant in 2015 Further, her statements and rulings are set forth in the records
and files in the case and are the best evidence thereof.
Accordingly, JUDGE MCLEAN respectfully requests that the Court grant this motion and
quash the two subpoenas.
HE UBPOENA HOULD UASHED ECAUSE THE ELIBERATIVE ROCESS
RIVILEGE ROTECTS UDGE EAN ROM ESTIFYING RODUCING
OCUMENTS ELATED TO ER ECISION AKING
he U.S. Supreme Court has ruled that a judge is not subject to questioning in subsequent
proceedings regarding the mental processes by which he/she reached a decision. See U.S. v.
Morgan, 313 U.S. 409 (1941); Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325
(establishing privilege); Rogers v. Superior Court (1993) 19 Cal.4th 469; San Joaquin County
Local Agency Formation Commission v. Superior Court (San Joaquin LAFCO) (2008) 162 Cal.4th
159, 170 (noting common law privilege extends to all three branches of government); Magness
Petroleum Co. v. Warren Resources of Cal., Inc.(2002) 103 Cal.4th 901, 911 912 (written orders
and findings must stand on their own); Horning v. Superior Court (2000) 81 Cal.4th 1095, 1098
1099 (noting in dictum, a judge cannot be subjected to scrutiny about mental processes) Copley
Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106 (court’s internal memoranda cannot be the
subject of public inspection).
This is precisely what ROBINSON is attempting to do by subpoenaing JUDGE MCLEAN
i.e.,he is seeking testimony and documents related to JUDGE MCLEAN’s deliberations and
information she relied upon in issuing a warrant for ROBINSON’s arrest in 2015 Testimony
regarding JUDGE MCLEAN’s mental processes or deliberations, and documents reflecting those
mental processes or deliberations if any, are privileged and protected from disclosure based on
NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S
SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL
the deliberative process privilege. Accordingly, JUDGE MCLEAN respectfully requests that the
Court grant this motion and quash ROBINSON’s subpoenas.
IV.CONCLUSION
JUDGE MCLEAN respectfully requests that the Court grant this motion quash Plaintiff
ROBINSON’s two subpoenas and excuse JUDGE MCLEAN from having to appear and testify
or produce documents at the April 26, 2021 trial in this matter.
Dated: February 1, 2021 ANGELO, KILDAY & KILDUFF, LLP
By:_________________________________
DERICK E. KONZ
Attorneys for Non Party
SANDRA L.MCLEAN
NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S
SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL
CASE NAME:Robinson v. Duran
COURT: Butte County Superior Court
CASE NO. 19cv03693
PROOF OF SERVICE
I am a citizen of the United States, employed in the County of Sacramento, State of
California. My business address is 601University Avenue, Suite 150, Sacramento, California
95825. I am over the age of 18 years and not a party to the above entitled action.
On February 1, 2021, I served the parties in this action listed below the following
document(s) described as: NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF
MOTION AND MOTION TO QUASH PLAINTIFF’S SUBPOENA FOR PERSONAL
APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL
The above named document(s) were served by the following means (specify
MAIL I am readily familiar with Angelo, Kilday & Kilduff’s practice for collection and
processing of correspondence for mailing with the United States Postal Service. Pursuant to said
practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage
is placed thereon and the sealed envelope is placed in the office mail receptacle. Each day’s mail
is collected and deposited in a U.S. mailbox at or before the close of each day’s business. (Code
Civ. Proc. section 1013a(3)) or Fed.R.Civ.P. 5(a) and 4.1; USDC (E.D. CA) L.R. 5 135(a).)
SERVICE LIST
Attorneys for Plaintiff, pro per:
Joseph Robinson
1324 ½ Chestnut St.
Chico, CA 95928
(State) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
Executed on February 1, 2021at Sacramento, California.
MELANIE FITZPATRICK
NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S
SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL
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DERICK E. KONZ, ESQ., SB No. 286902 ANGELO, KILDAY & KILDUFF, LLP Attorneys at Law 601 University Avenue, Suite 150 Sacramento, CA 95825 Telephone: (916) 564-6100 Telecopier: (916) 564 Attorneys for Nonparty SANDRA L. McLEAN PUBLIC ENTITY, FILING FEES WAIVED PURSUANT TO GOV’T CODE §6103 SUPERIOR COURT OF CALIFORNIA COUNTY OF BUTTE JOSEPH ROBINSON, Case No.: 19CV03693 Plaintiff, NONPARTY SANDRA L. McLEAN’S AMENDED(AS TO DATE ONLY) vs. NOTICE OF MOTION AND MOTION TO QUASHPLAINTIFF’S SUBPOENA CHARLES DURAN, et al., FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT Defendants. TRIAL Date: March 10, 2021 Time: 9:00 a.m. Dept: TBD TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 10, 2021, at 9:00 a.m. or as soon thereafter as this matter may be heard, in a Department TBD of the above-captioned Court, 1775 Concord Ave. Chico, CA SANDRA L. MCLEAN, Judge of the Superior Court of California, County of Butte (“JUDGE MCLEAN”), will and hereby does move for an order quashing two subpoenas issued by Plaintiff JOSEPH ROBINSON (“ROBINSON”) to JUDGE MCLEAN requesting that she appear and testify and produce documents at the April 26, 2021 trial in this case. NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL This motion is brought pursuant to Code of Civil Procedure n the following grounds: JUDGE MCLEAN is precluded from testifying pursuant to Evidence Code section and he proffered evidence, whether testimonial or documentary, is protected by the deliberative process privilege. PLEASE TAKE FURTHER NOTICE that JUDGE MCLEAN will and hereby does request a stay of compliance with the subpoena nding a determination of this motion. Said motion will be based upon this Notice, the accompanying Memorandum of Points and Authorities, the Declaration of Derick E. Konz, the pleadings and papers on file in this action, and upon such other and further matters as the Court may consider at or before the hearing. Tentative rulings on law and motion matters will be available on the Court’s website at www.buttecourt.ca.gov and by telephone at (530) 532 7022 by 3:00 p.m. on the court day preceding the hearing. Dated: February 1, 2021 ANGELO, KILDAY & KILDUFF, LLP By:________________________________ DERICK E. KONZ Attorneys for Non Party SANDRA L. MCLEAN Plaintiff ROBINSON and counsel for JUDGE MCLEAN have met and conferred over this issue by telephone and email, but could not come to an agreement and thus now require Court intervention. See Declaration of Derick Konz at ¶ 4 and Exhibit C NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL MEMORANDUM OF POINTS ANDAUTHORITIES INTRODUCTION Non Party JUDGE MCLEAN respectfully requests an Order quashing two subpoena served on her Plaintiff ROBINSON in the above entitled action. Both subpoena request that JUDGE MCLEAN testify at the April 26, 2021 trial in this matter as to her issuance of an arrest warrant in 2005 and basis for its issuance JUDGE MCLEAN is precluded from testifying trial pursuant to Evidence Code section 703.5. Additionally, the proffered evidence, whether testimonial or documentary, is protected by the deliberative process privilege. FACTS This is a civil action in which Plaintiff ROBINSON alleges a single cause of action for “Intentional Tort” against Defendant CHARLES DURAN. Court trial is currently set for April On January 6, 2021, ROBINSON served JUDGE MCLEAN with a subpoena requesting that she appear as a witness at the April 26, 2021 trial in this matter. (Konz Declaration at Exhibit .) The subpoena indicates that JUDGE MCLEAN will be asked to testify as to “the cause for your Arrest Warrant in case number SCR105957.” (Id.) On January 8, 2021, ROBINSON served JUDGE MCLEAN with a second subpoena, requesting that she appear as a witness at the April 26, 2021 trial in this matter and produce “[i]nformation that caused [JUDGE MCLEAN] to sign [an] Arrest Warrant in SCR105957 (Konz Declaration at Exhibit .) (Id.) NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL ARGUMENT UTHORITY TO UASH UBPOENA Motions to quash are governed by Code Civ. Proc. section 1987.1, which provides, in pertinent part: (a) If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein…the court, upon motion reasonably made by [a witness], or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands[]… Here, the challenged subpoenas request the attendance of JUDGE MCLEAN at the April 26, 2021, trial in this matter. Counsel for JUDGE MCLEAN has informally attempted to resolve the issue with ROBINSON since receipt of the subpoenas, but to no avail. (Konz Declaration at ¶ .) Accordingly, JUDG E MCLEAN is bringing this motion as soon as practicable and well before the date for compliance, and requesting a stay of compliance pending a ruling on the motion. HE UBPOENAS HOULD UASHED ECAUSE UDGE EAN IS RECLUDED ROM ESTIFYING URSUANT TO VIDENCE ODE 703.5. Under Evidence Code section and subject to extremely narrow exceptions not relevant here: No person presiding at any judicial or quasi judicial proceeding, and no arbitrator or mediator, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding Thus, the Legislature has disqualified judges from testifying as witnesses in subsequent judicial proceedings about matters they presided over , including statements, conduct, decisions or rulings occurring at or in conjunction with prior proceeding. (Evid. Code § 703.5.) Here, ROBINSON seeks testimony and documents from JUDGE MCLEAN in a subsequent civil proceedingthe NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL April 26, 2021 trial of this matterregarding her decisions and rulings and issuance of warrant for his arrest approximately five (5) years ago in connection with a prior proceeding, in her role as a Judge of the Superior Court of California, County of Butte Such testimony is precluded under section 703.5. JUDGE MCLEAN also has no recollection of the case or anything to add regarding her signing of an arrest warrant in 2015 Further, her statements and rulings are set forth in the records and files in the case and are the best evidence thereof. Accordingly, JUDGE MCLEAN respectfully requests that the Court grant this motion and quash the two subpoenas. HE UBPOENA HOULD UASHED ECAUSE THE ELIBERATIVE ROCESS RIVILEGE ROTECTS UDGE EAN ROM ESTIFYING RODUCING OCUMENTS ELATED TO ER ECISION AKING he U.S. Supreme Court has ruled that a judge is not subject to questioning in subsequent proceedings regarding the mental processes by which he/she reached a decision. See U.S. v. Morgan, 313 U.S. 409 (1941); Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325 (establishing privilege); Rogers v. Superior Court (1993) 19 Cal.4th 469; San Joaquin County Local Agency Formation Commission v. Superior Court (San Joaquin LAFCO) (2008) 162 Cal.4th 159, 170 (noting common law privilege extends to all three branches of government); Magness Petroleum Co. v. Warren Resources of Cal., Inc.(2002) 103 Cal.4th 901, 911 912 (written orders and findings must stand on their own); Horning v. Superior Court (2000) 81 Cal.4th 1095, 1098 1099 (noting in dictum, a judge cannot be subjected to scrutiny about mental processes) Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106 (court’s internal memoranda cannot be the subject of public inspection). This is precisely what ROBINSON is attempting to do by subpoenaing JUDGE MCLEAN i.e.,he is seeking testimony and documents related to JUDGE MCLEAN’s deliberations and information she relied upon in issuing a warrant for ROBINSON’s arrest in 2015 Testimony regarding JUDGE MCLEAN’s mental processes or deliberations, and documents reflecting those mental processes or deliberations if any, are privileged and protected from disclosure based on NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL the deliberative process privilege. Accordingly, JUDGE MCLEAN respectfully requests that the Court grant this motion and quash ROBINSON’s subpoenas. IV.CONCLUSION JUDGE MCLEAN respectfully requests that the Court grant this motion quash Plaintiff ROBINSON’s two subpoenas and excuse JUDGE MCLEAN from having to appear and testify or produce documents at the April 26, 2021 trial in this matter. Dated: February 1, 2021 ANGELO, KILDAY & KILDUFF, LLP By:_________________________________ DERICK E. KONZ Attorneys for Non Party SANDRA L.MCLEAN NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL CASE NAME:Robinson v. Duran COURT: Butte County Superior Court CASE NO. 19cv03693 PROOF OF SERVICE I am a citizen of the United States, employed in the County of Sacramento, State of California. My business address is 601University Avenue, Suite 150, Sacramento, California 95825. I am over the age of 18 years and not a party to the above entitled action. On February 1, 2021, I served the parties in this action listed below the following document(s) described as: NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL The above named document(s) were served by the following means (specify MAIL I am readily familiar with Angelo, Kilday & Kilduff’s practice for collection and processing of correspondence for mailing with the United States Postal Service. Pursuant to said practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the office mail receptacle. Each day’s mail is collected and deposited in a U.S. mailbox at or before the close of each day’s business. (Code Civ. Proc. section 1013a(3)) or Fed.R.Civ.P. 5(a) and 4.1; USDC (E.D. CA) L.R. 5 135(a).) SERVICE LIST Attorneys for Plaintiff, pro per: Joseph Robinson 1324 ½ Chestnut St. Chico, CA 95928 (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 1, 2021at Sacramento, California. MELANIE FITZPATRICK NONPARTY SANDRA L. McLEAN’S AMENDED NOTICE OF MOTION AND MOTION TO QUASH PLAINTIFF’S SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AT TRIAL