Judge: Anne Richardson, Case: 22STCV04358, Date: 2023-04-20 Tentative Ruling

Case Number: 22STCV04358    Hearing Date: April 20, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:              Doe 4, Defendant Niza Hacker.

OPPOSITION:                      Plaintiff Karyna Myres.

REPLY:                                 Doe 4, Defendant Niza Hacker.

Background

Plaintiff Karyna Myres brings this habitability suit against Defendants (1) Ernst Hacker, (2) Kape Property Management, Inc., (3) Doe 1 Tamir Hacker, as Successor Co-Trustee of the Survivor’s Trust established under The Hacker Family Trust dated March 24, 1988, and as Successor Trustee of Survivor’s Trust established under the Ernst Hacker and Bila Hacker Trust, restated March 16, 2012, (4) Doe 2 Ronen Hacker, as Successor Co-Trustee of the Survivor’s Trust established under The Hacker Family Trust dated March 24, 1988, (5) Doe 3 Adi Samuel Hacker, as Successor Co-Trustee of the Survivor’s Trust established under The Hacker Family Trust dated March 24, 1988, (6) Doe 4 Niza Hacker, as Successor Trustee of the Ernst Hacker Survivor’s Trust, and (7) Does 5-100. The operative February 3, 2022 Complaint alleges claims of (1) Nuisance, (2) Breach of Contract, (3) Breach of the Implied Covenant of Good Faith and Fair Dealing, (4) Negligence, (5) Breach of Statutes, (6) Breach of Warranty of Habitability, (7) Breach of the Covenant Quiet Enjoyment, (8) Constructive Eviction, (9) IIED, and (10) NIED. The claims arise from allegations that, in February 2020, while a tenant of a residential apartment unit located at 718 North Hayworth Avenue, Los Angeles, California 90046 (Subject Premises), seemingly unlicensed contractors performed construction and demolition work on the unit adjacent to Plaintiff Myres’s unit, which caused portions of the ceiling in her unit to collapse, with debris at one point falling on her head, causing Plaintiff injuries and leading to a diagnosis of post-concussion syndrome. The claims are also supported by allegations of ongoing harassment by Defendants’ agents—including allegations of unpaid rent by Defendants’ agents and threats to Plaintiff’s person by construction workers—and allegations that the construction and demolition work caused a gas leak at the Subject Premises, leading SoCal Gas to deem the Premises uninhabitable in December 2020, and forcing Plaintiff to move out of her unit.

On December 23, 2022, Defendant Ronen Hacker (Doe 2; hereafter, Ronen) served a subpoena duces tecum on Wells Fargo Bank, seeking, in relevant part, bank records for Defendant Niza Hacker (Doe 4).

On January 25, 2023, Defendant Niza Hacker (hereafter, Niza) filed a motion to quash the December 23rd subpoena.

On February 8, 2023, Ronen served another subpoena duces tecum on Wells Fargo Bank, again seeking bank records for Niza.

On February 17, 2023, Niza made an amended motion to quash. The amended motion appears to consider the January 25, 2023 as separate from the amended motion

On April 6, 2023, Ronen opposed the amended motion to quash, arguing that “the motion” before the Court is moot because the subpoenas at issue were withdrawn by Ronen on April 2, 2023.

On April 13, 2023, Niza replied to the opposition, seeking a grant of her motion on the ground that Ronen should be restrained from issuing similar subpoenas in the future.

The amended motion to quash is now before the Court.

Motion to Quash Subpoena: MOOT.

Legal Standard

A motion to quash a deposition subpoena or deposition notice is used to strike, modify, or impose conditions on a subpoena or notice that is procedurally or substantively defective. (See Code Civ. Proc., §§ 1987.1, subd. (a), 2025.410, subd. (c); see, e.g., Catholic Mut. Relief Soc’y v. Superior Court (2007) 42 Cal.4th 358, 365 [motion based on ground that subpoenas sought information outside scope of discovery]; John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186 [motion based in part on ground that subpoenas violated right of privacy]; McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386, 391 [motion based on ground that subpoenas were unreasonable and oppressive]; Far W. S&L Assn. v. McLaughlin (1988) 201 Cal.App.3d 67, 71 [motion based on ground that subpoena was not properly served]; City of Los Angeles v. Superior Court (2003) 111 Cal.App.4th 883, 888 [procedural remedy for a defective subpoena is generally a motion to quash under § 1987.1].)

Such a motion may be made by:

(1) Any party to the action (Code Civ. Proc., 1987.1, subd. (b)(1));

(2) The subpoenaed witness (e.g., a custodian of another person’s personal records) (Code Civ. Proc., § 1987.1, subd. (b)(2); Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1287-88);

(3) A person (party or nonparty) whose consumer, governmental, or employment information or records have been subpoenaed (see Code Civ. Proc., § 1985.3, subd. (g) [party consumer], 1985.4 [state or local-agency employee or any other natural person], 1985.6, subd. (f)(1) [employee], 1987.1, subd. (b)(3) [consumer], 1987.1, subd. (b)(4) [employee]; see also Code Civ. Proc., §§ 1985.3, subd. (g), ¶ 2, 1985.6, subd. (f)(2) [nonparty consumer can make written objections instead of motion to quash]);

(4) A person whose “personally identifying information” within the meaning of Civ. Code § 1798.79.8, subd, (b), subpoenaed in connection with an action involving that person’s exercise of free-speech rights; and

(5) The Court, on its own motion, after giving the parties notice and the opportunity to be heard (Code Civ. Proc., § 1987.1, subd. (a).)

A motion to quash may be based on various grounds, including that:

The subpoena contains error or irregularities in the deposition notice (see Code Civ. Proc., § 2025.410, subds. (a), (c));

The subpoena seeks information that is not relevant to the issues in the case (see, e.g., Catholic Mut. Relief Soc’y v. Superior Court, supra, 42 Cal.4th at p. 365 [motion to quash deposition subpoena because documents were outside the scope of discovery]; cf. Cadiz Land Co. v. Rail Cycle, L.P. (2000) 83 Cal.App.4th 74, 122-123 [motion to quash deposition notice because deposition would not lead to admissible evidence]);

The subpoena seeks information that is not relevant to the issues in the case (see, e.g., Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1314-1315 [motion to quash trial subpoena because medical records were not relevant was properly overruled]);

The subpoena makes unreasonable or oppressive demands for information (see Code Civ. Proc., § 1987.1, subd. (a); see, e.g., McClatchy Newspapers v. Superior Court, supra, 26 Cal.2d at p. 391 [motion to quash deposition subpoenas because they were unreasonable and oppressive]);

The disclosure of the records sought will violate the consumer’s constitutional right to privacy (see Cal. Const., art. I, § 1; see, e.g., Fett v. Medical Bd. (2016) 245 Cal.App.4th 211, 213 [petitions to quash to nonparties’ doctor because of privacy rights]; Manela v. Superior Court (2009) 117 Cal.App.4th 1139, 1150-51 [motion to quash a subpoena to party’s doctor because of privacy rights]); and

The disclosure of records will violate a privilege of the consumer, the witness, or a person with whom the witness has a relationship that requires the witness to assert the privilege on the person’s behalf. (See, e.g., Monarch Healthcare v. Superior Court, supra, 78 Cal.App.4th at p. 1290 [objections to subpoena for business records based on trade-secret privilege]).

Analysis

The Court reads Defendant Niza’s amended motion as a combination of the January 25th and February 17th motions to quash the December 23, 2022 and February 8, 2023 subpoenas served on Wells Fargo Bank for bank account information related to Defendant Niza. The amended motion is based on three grounds: procedural defects in the subpoenas; irrelevance of the discovery sought; and constitutional right of privacy in bank records. (Mot., pp. 3-7; see Mot., Ex. A [February 8, 2023 subpoena], Ex. B [original January 25, 2023 motion to quash and December 23, 2022 subpoena].)

According to Defendant Ronen’s opposition, this motion is moot because “[o]n April 2, 2023, by letter to Wells Fargo Bank copied to counsel for Niza Hacker, all subpoenas to Wells Fargo Bank were withdrawn.” (Opp’n, p. 2.) A copy of the April 2nd letter is attached as Exhibit A to the Quigg declaration accompanying the opposition. (Opp’n, Quigg Decl., Ex. A; see also Reply, Ex. F [same letter].)

In reply, Defendnat Niza argues that this motion “should be granted on the ground[] that Defendant Ronen Hacker will continue to try to subpoena the Well Fargo Bank records of Defendant Niza Hacker[,] [necessitating] a Court Order prohibiting [Defendant Ronen’s] counsel and this Defendant from continuing to do so in the future” because “no other remedy [is] available to” Defendant Niza. (Reply, p. 4.)

The Court finds that the amended motion to quash—read to comprise of the subject matter in the January 25th and February 17th motions filed by Defendant Niza—is MOOT because the subpoenas it seeks to quash were withdrawn on April 2, 2023. (See Opp’n, Quigg Decl., Ex. A; see also Reply, Ex. F [same letter].)

The Court briefly notes that if Defendant Niza wishes to restrain Defendant Ronen from seeking further bank records from Defendant Niza, Niza should file a forward-looking motion for protective order prohibiting discovery as to this information. A motion to quash is backward looking and does not apply to possible future discovery not yet propounded by Ronen. Nonetheless, if Defendant Ronen does seek identical or similar discovery in the future, which the Court finds not to be well-founded, such conduct may be relevant to a request for attorney fees in the future. Not only need the subpoena comply with the Code of Civil Procedure, but the documents requested must be relevant and likely to lead to the discovery of admissible evidence.

Conclusion

Doe 4, Defendant Niza Hacker’s Motion to Quash All Improper/Invalid Subpoena Duces Tecum of Bank Records is MOOT because the subpoenas at issue were withdrawn by Defendant Ronen Hacker on April 2, 2023.