Judge: Anne Richardson, Case: BC723902, Date: 2023-05-04 Tentative Ruling

Case Number: BC723902    Hearing Date: May 4, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:              Defendants Armando Mendoza, Coastal Holdings, LLC, and Class A Realty, Inc. [Motion to Set Aside Judgment]; Defendant Armando Mendoza [Motions to Quash].

OPPOSITION:                      Plaintiffs Miguel Valencia, Jr. and Lizette Valencia [Motion to Set Aside Judgment only; Motions to Quash unopposed].

REPLY:                                 Defendants Armando Mendoza, Coastal Holdings, LLC, and Class A Realty, Inc. [Motion to Set Aside Judgment]; [No replies for Motions to Quash].

Background [From Papers and March 10th Ruling]

Proceedings Through Judgment

On October 2, 2018, Plaintiffs Miguel Valencia Jr. and Lizette Valencia sued Defendants Armando Mendoza, Coastal Holdings, Inc., Class A Realty, Inc. and Does 1-100 pursuant to a Complaint alleging causes of action for: (1) Breach of Written Contract; (2) Violation of Civil Code §§ 1102, et seq.; (3) Fraud; (4) Negligent Misrepresentation; (5) Negligence; (6) Violation of Civil Code § 2079; (7) Professional Negligence; (8) Breach of Common Law Duty to Disclose (Seller); (9) Negligence (Contractor Does); and (10) Negligence (Inspector Does). The claims arose from allegations related to the purchase of a property and failure to disclose defects therein.

On November 20, 2019, Defendants moved to compel arbitration and stay this action pursuant to an arbitration agreement between the parties.

On January 17, 2019, Plaintiffs filed a limited opposition, noting that the parties had already stipulated to an arbitration, on which ground the Court could deny the motion to compel.

Also on January 17, 2019, the parties filed a stipulation and proposed order for binding arbitration and a stay of this action pending the outcome of arbitration.

On January 25, 2019, the Court entered the proposed order, ordering the parties to arbitration.

Between July 2019 and August 2022, the Court held various post-arbitration status conferences, which the Court continued through September 28, 2022.

On August 23, 2022, arbitrator Hon. Judith C. Chirlin (Ret.) found in favor of Plaintiffs and ordered Defendants to pay monetary damages, prejudgment interest, punitive damages, attorney’s fees, and costs in the amount of $1,512,849.55 (the arbitration award).

On September 2, 2022, Plaintiffs filed a petition to confirm the arbitration award.

On September 14, 2022, Defendants opposed the September 2nd petition, noting therein their intention to file within ten to 15 days a petition to vacate the arbitration award.

On September 27, 2022, Defendants filed a petition to vacate the arbitration award on two grounds: (1) the arbitrator refusing to admit evidence that the arbitrator found critical in the form of a city inspection card that would have undercut fraud testimony against Defendants; and (2) the arbitrator refusing to allow a defense expert to address arbitration exhibit 168, which was grounded in Chapter 34 of the 2013 Building Code and should not have been relied on in calculating damages against Defendants because Chapter 34 of the Building Code involved constructions related to hospitals, not personal residences. The petition was calendared for April 3, 2023.

Later that same day, Plaintiffs filed a reply to the September 14th opposition, arguing in part that the petition should be confirmed because Defendants had failed to petition a vacatur of the arbitration award within ten days of the September 2nd petition to confirm that award.

On September 28, 2022, the Court heard the petition to confirm arbitration award and granted it on the grounds that (1) Defendants’ response to the petition to confirm arbitration award was untimely or not duly served or filed, (2) Defendants’ opposition to the petition to confirm arbitration award did not present facts or evidence showing good cause to extend the timeframe to file a response or to continue the hearing, (3) any petition to vacate the arbitration award was likely untimely, and (4) per the minutes, most importantly, the opposition to the petition to confirm arbitration award failed to set forth any grounds as to why the Arbitration Award should be vacated. The Court also advanced the petition to vacate arbitration award and vacated it.

Judgment was entered on the arbitration award on September 28, 2022, with notice thereof on October 7, 2022.

Appeal

On November 22, 2022, Defendants filed a notice of appeal to (1) the September 28, 2022 ruling dismissing the petition to vacate arbitration award and (2) the September 28, 2022 judgment entered on the petition to confirm arbitration award.

On March 24, 2023, the Court entered a notice of default against Defendants, indicating that their appeal had been placed in default pursuant to California Rules of Court, rule 8.140, subdivision (a) for failure to pay Clerk’s Transcript fees and giving Defendants until April 12, 2023 to correct the deficiency.

It is, as of this date, unclear whether Defendants paid the Clerk’s Transcript fees in support of their appeal required by the March 24, 2023 notice of default against them. No filings have been made in this case since that date.

Motion to Set Aside and Vacate Judgment

On October 20, 2022, Defendants moved to set aside the September 28th judgment pursuant to the mandatory provision of Civil Procedure section 473, subdivision (b) on the ground that judgment was entered against Defendants based on counsel’s error in failing to timely petition a vacatur of the arbitration award, believing himself to have had more time to do so, i.e., thinking he had 100 days from the service of the award rather than ten days from service of the petition to confirm the arbitration award to file a petition to vacate. The hearing on the motion was set for April 19, 2023.

On November 1, 2022, Defendants filed an ex parte application for an order specially setting an earlier hearing date for the motion to set aside.

On November 4, 2022, the Court granted the ex parte application in part, advancing and continuing the hearing date on the motion to set aside to January 26, 2023.

On January 12, 2023, Plaintiffs filed an opposition to the motion to set aside.

On January 19, 2023, the Court, of its own motion, rescheduled the motion to set aside to May 4, 2023.

Also on January 19, 2023, Defendants replied to the January 12th opposition.

Writ of Execution, Levy, and Claim of Exemption

On October 7, 2022, Plaintiffs obtained a writ of execution against Defendant Mendoza in the full amount of the arbitration award.

On October 27, 2022, Plaintiffs served a Notice of Levy on E*Trade Securities aimed at levying Mendoza’s known bank accounts.

On December 27, 2022, Defendant Mendoza’s counsel, Christopher E. Delaplane of Delaplane Law Group, APC, filed a claim of exemption based on “Code of Civ. Proc., section 704.115 et seq.” regarding two Roth IRA accounts in Mendoza’s name held with and levied at E*Trade Securities, LLC.

On January 17, 2023, Plaintiffs filed a notice of hearing on the claim of exemption, with the hearing originally set for February 9, 2023.

On February 9, 2023, the Court, of its own motion, continued the hearing on the claim of exemption to March 10, 2023.

On February 21, 2023, Plaintiffs filed an opposition to Defendant Mendoza’s claim of exemption.

On March 10, 2023, the Court heard the claim of exemption, denying it for failure to comply with requirements set forth in Code of Civil Procedure sections 703.520 (contents required in the exemption claim) and 703.530 (required financial statement).

Motions to Quash

On or around November 30, 2022, Plaintiffs served subpoenas duces tecum on E*Trade Securities, LLC and Citibank, N.A., seeking the appearance of the custodian of records for these institutions at a January 12, 2022 hearing at Stanley Mosk Courthouse to produce account statements, wire transfer records, call logs, payment records, check history, and/or other bank record information for Defendants Armando Mendoza—individually and as trustee of the Lumbee Family Trust—Coastal Holdings, LLC, and Class A Realty, Inc.

On January 6, 2023, Defendant Armando Mendoza filed motions to quash the E*Trade and Citibank subpoenas as directed against his records. The hearings therefor were set for May 4, 2023.

As of this date, Plaintiffs have failed to oppose the January 6th motions to quash.

Debtor Examination

On November 4, 2022, Plaintiffs made an application and order for appearance and examination of Defendant Armando Mendoza as the judgment debtor, which the Court granted and set on January 12, 2023 before Department 40.

On December 29, 2022, Plaintiffs made an application and order for appearance and examination in relation to the enforcement of judgment against Defendant Armando Mendoza as the judgment debtor, which the Court granted for February 9, 2023 before Department 40.

On February 2, 2023, Plaintiffs made an application and order for appearance and examination of Defendant Armando Mendoza as the judgment debtor. The application and order were filed with Department 32, which granted the application and order for April 5, 2023 before Department 32.

On February 27, 2023, Department 32 advanced and continued the April 5th examination of Defendant Armando Mendoza before Department 32 to March 10, 2023 before Department 40.

On March 2, 2023, Department 32 issued a nunc pro tunc order advancing and continuing the April 5th examination of Defendant Armando Mendoza before Department 32 to April 5, 2023 before Department 40.

On March 22, 2023, Plaintiffs made an application and order for appearance and examination in relation to the enforcement of judgment against Defendant Armando Mendoza as the judgment debtor, which the Court granted for June 16, 2023 before Department 40.

Instant Proceedings

Now before the Court are (1) Defendants’ opposed motion to set aside the September 28th judgment, (2) Defendant Armando Mendoza’s unopposed motion to quash the E*Trade Securities, LLC subpoena duces tecum, and (3) Defendant Armando Mendoza’s unopposed motion to quash the Citibank, N.A. subpoena duces tecum.

Motion to Set Aside and Vacate Judgment: DENIED.

Legal Standard

Unless a listed exception applies, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a), emphasis added; see Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198 [“[S]ection 916, as a matter of logic and policy, divests the trial court of jurisdiction over the subject matter on appeal—i.e., jurisdiction in its fundamental sense”]; In re Anna S. (2010) 180 Cal.App.4th 1489, 1499 [The “filing of a notice of appeal deprives the trial court of jurisdiction of the cause and vests jurisdiction with the appellate court until the reviewing court issues a remittitur”]; see also Vosburg v. Vosburg (1902) 137 Cal. 493, 496 [“[S]ection 916, when triggered, generally divests the trial court of the “‘power to amend or correct its judgment …’”]; Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 666 [“[A]n appeal from a judgment order strips the trial court of any authority to rule on the judgment”].)

“The purpose of the automatic stay … ‘is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided’” and to “‘prevent[ ] the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’” (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 198; accord. LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 872.)

“‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the “effectiveness” of the appeal.’” (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 189.) “The fact that the postjudgment or postorder proceeding may render the appeal moot is not, by itself, enough to establish that the proceeding affects the effectiveness of the appeal and should be stayed under section 916”; “[r]ather, something more is needed.” (Ibid.) “For example, the trial court proceeding must directly or indirectly seek to ‘enforce, vacate[,] or modify [the] appealed judgment or order’” while the appeal is pending or “substantially interfere with the appellate court’s ability to conduct the appeal.” (Id. at pp. 189-190; LAOSD Asbestos Cases, supra, 28 Cal.App.5th at p. 872; see, e.g., Hollaway v. Scripps Memorial Hosp. (1980) 111 Cal.App.3d 719, 723-724 [holding that a pending appeal precludes the trial court from issuing an order relieving the parents as plaintiff’s guardians and appointing new counsel for plaintiff because the order interferes with the conduct of the appeal].).) “A trial court proceeding also affects the effectiveness of an appeal if the possible outcomes on appeal and the actual or possible results of the proceeding are irreconcilable.” (Id. at p. 190.) For example, “an appeal from a judgment on the pleadings precludes a trial court from granting leave to amend the complaint because affirmance of the judgment is irreconcilable with an order granting leave to amend.” (Ibid., citing to Olson v. Superior Court (1969) 274 Cal.App.2d 311, 314 for this proposition.)

Analysis

Defendants make this motion seeking “an Order relieving Defendants from the judgment entered against Defendants on September 28, 2022.” (Vacate Mot., pp. 2, 6.)

In opposition and relevant part, Plaintiffs argue that the Court does not have the authority to set aside and vacate the September 28th judgment because Defendants’ November 22, 2022 appeal divested the Court of jurisdiction to grant such relief. (Vacate Opp’n, pp. 7-8.)

In reply, while Defendants cite the relevant case law regarding a trial court’s lack of jurisdiction to rule on a motion seeking to vacate an appealed judgment, they do not explain why the motion at issue here, seeking to vacate the September 28th judgment, falls outside that scope. Specifically, while Defendants note that caselaw provides that the Court may proceed on any matter “not affected by the judgment,” they do not present any argument how that may be the case here, where the judgment they seek to vacate is the precise subject of the November 22, 2022 appeal. Rather, Defendants make a section 473 attorney mistake, inadvertence, surprise, or neglect argument for why this Court should vacate the judgment based on counsel’s error in failing to timely petition vacatur of the arbitration award. (Vacate Reply, p. 2.)

The Court finds that it is divested of jurisdiction to set aside and vacate the arbitration award. Defendants ask that this Court vacate a judgment pending on appeal, which the Court may not do. (Vacate Mot., pp. 2, 6; Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at pp. 189-190.) If this Court were to vacate the September 28th judgment, such a ruling would affect the effectiveness of the November 22, 2022 appeal because vacatur of the judgment would be irreconcilable with the court of appeal affirming the same judgment. (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 190.)

Defendants’ motion to vacate and set aside the September 28, 2022 judgment in this action is accordingly DENIED.

Motion to Quash Subpoena Duces Tecum, E*Trade Securities, LLC: DENIED.

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], disapproved on other grounds in Internat. Federation of Prof. and Technical Engineers, Local 21, AFC-CIO v. Superior Court (2007) 42 Cal.4th 319, 344-345 [disapproval regarding whether disclosure of peace officers’ salaries was not prohibited by statute governing discovery of peace officers’ records].)

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, 1287-1288);

(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) 177 Cal.App.4th 1139, 1150-1151 [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

Defendant Armando Mendoza makes a motion to quash a November 30, 2022 subpoena duces tecum served by Plaintiffs on E*Trade Securities, LLC, which seeks bank records relating to Defendant Mendoza. (E*Trade Quash Mot., pp. 1-5.) The motion is based on two grounds: (1) improper demand of financial records related to Defendant Armando Mendoza’s retirement accounts; and (2) failure to follow procedural requirements for third-party post-judgment discovery. (E*Trade Quash Mot., pp. 4-5.)

The motion is unopposed by Plaintiffs.

The Court first finds that Defendant Armando Mendoza is a proper movant as the party consumer whose records are sought for production. (Code Civ. Proc., §§ 1985.3, subd. (g), 1987.1, subd. (b)(3).)

The Court next moves to Defendant Mendoza’s legal arguments.

I. Protection of Retirement Accounts, Code Civ. Proc., § 704.115, subd. (e)

Defendant Mendoza’s first argument is that the E*Trade subpoena duces tecum seeks records from his retirement accounts, which are protected and exempt from the enforcement of money judgments pursuant to Code of Civil Procedure section 704.115. (E*Trade Quash Mot., pp. 4-5.) Accordingly, argues Defendant Mendoza, the records pertaining to the E*Trade retirement accounts are irrelevant because “none of the assets contained within any account can be garnished, and information related to the accounts will not assist in the collection or enforcement of the judgment,” such that “Plaintiffs’ pursuit of information related to [those] accounts is solely for the purpose of harassing Defendant.” (E*Trade Quash Mot., p. 4.)

The Court does not find this argument availing. Most importantly, Defendant Mendoza does not provide evidence—even a declaration from him, signed under penalty of perjury or otherwise—showing that his E*Trade accounts are solely retirement accounts. Though the motion to quash provides a declaration from counsel indicating that he is “personally familiar with this matter” and “[i]f called upon as a witness, [he] could and would competently testify to the matters stated [t]herein,” the Court finds such statement insufficient for the purpose of evidencing the nature of the E*Trade accounts. (See E*Trade Quash Mot., Goldberg Decl., ¶ 2.) Second, the Court notes that on March 10, 2023, the Court denied a claim of exemption made by Defendant Mendoza for protection of levies made against seemingly the same E*Trade accounts. (See 3/10/23 Minutes, pp. 1-8.) Last, the Court notes that Code of Civil Procedure section 704.115 protects individual retirement accounts only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that are likely to be available for the support of the judgment debtor when the judgment debtor retires. (Code Civ. Proc., § 704.115, subd. (e).) Again, insufficient evidence is attached to the motion to quash to support this position. (See E*Trade Quash Mot., Goldberg Decl. generally.)

The motion to quash the E*Trade subpoena duces tecum, as based on this ground, lacks merit.

II. Subpoena Duces Tecum Not Tied to Debtor or Third-Party Examination

Defendant Mendoza’s second argument in favor of quashing the E*Trade subpoena duces tecum is that a third-party subpoena in a post-judgment proceeding must be tethered to a debtor’s or third-party’s examination, in which the witness providing the documents appears pursuant to Code of Civil Procedure sections 708.110 or 708.120. (E*Trade Quash Mot., pp. 4-5.) In support, Defendant Mendoza cites Shrewsbury Management, Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1225, Lee v. Swansboro County Property Owners Ass’n (2007) 151 Cal.App.4th 575, 582, and Fox Johns Lazar Pekin & Wexler, APC v. Superior Court (2017) 219 Cal.App.4th 1210, 1214. (E*Trade Quash Mot., p. 4.)

The Enforcement of Judgments Law provides several mechanisms that permit a judgment creditor to examine the judgment debtor or a third party.

“First, under section [Code of Civil Procedure section] 708.110, a judgment creditor may apply for a court order requiring the judgment debtor to appear in court or before a referee ‘to furnish information to aid in enforcement of the money judgment.’ (§ 708.110, subd. (a).)” (Shrewsbury Management, Inc. v. Superior Court, supra, 32 Cal.App.5th at p. 1223.) “‘“A judgment debtor examination is intended to allow the judgment creditor a wide scope of inquiry concerning property and business affairs of the judgment debtor.’” [Citation.]” (Ibid.)

“Second, under section 708.120, a judgment creditor may apply for a court order requiring a third party to appear before the court or a referee if the judgment creditor can prove ‘by affidavit or otherwise to the satisfaction of the proper court that [the] third person has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor in an amount exceeding’ $ 250. (§ 708.120, subd. (a).)” (Shrewsbury Management, Inc. v. Superior Court, supra, 32 Cal.App.5th at p. 1223.) “‘The purpose of the examination … is for the third party to answer questions regarding the property of the judgment debtor it possesses or the debt it owes the judgment debtor.’ [Citation.] Some courts have determined that the scope of the examination of a third party is limited to these subjects and that an examination under section 780.120 does not permit a more expansive scope of inquiry. [Citations.]” (Id. at pp. 1223-1224.)

Last, any person with knowledge leading to enforcement of the judgment (e.g., debtor’s bookkeeper, accountant, or nondebtor spouse) can be subpoenaed to testify before the court or a referee in an examination proceeding in the same manner as a trial witness. (See Code Civ. Proc., §§ 708.130, 708.140; Shrewsbury Management, Inc. v. Superior Court, supra, 32 Cal.App.5th at pp. 1219, 1224-1225 [judgment creditor permitted to serve subpoena duces tecum on third party bank under Code Civ. Proc., § 708.110 to obtain records for two entities’ accounts over which judgment debtor had signatory authority].) A literal reading of Code of Civil Procedure section 708.130 appears to mandate service of a subpoena on a third party required to testify at an examination of the judgment debtor or other third party held pursuant to Code of Civil Procedure sections 708.110 or 708.120. (See Shrewsbury Management, Inc. v. Superior Court, supra, at p. 1228.) The court may also use its power pursuant to Code of Civil Procedure section 187 to fashion an appropriate procedure for third-party examination to the extent that section 708.130 does not apply. (See Yolanda’s, Inc. v. Kahl & Goveia Comm’l Real Estate (2017) 11 Cal.App.5th 509, 514-515.)

Here, a review of the subpoena served on E*Trade Securities, LLC shows that it required the appearance of E*Trade Securities, LLC’s custodian of records on January 12, 2023 at 10 a.m. at the Stanley Mosk Courthouse. (E*Trade Quash Mot., Goldberg Decl., Ex. A, SUBP-002, p. 1.) A review of the first application and order for appearance and examination of Defendant Armando Mendoza—dated November 4, 2022—shows a hearing to take place on January 12, 2023 at 10 a.m. in Department 40 of the Stanley Mosk Courthouse. (11/4/22 Application for Appearance and Examination.) It therefore appears that the subpoena served on E*Trade Securities, LLC was made in conformance with Code of Civil Procedure section 708.130, as moored in an examination of Defendant Armando Mendoza pursuant to Code of Civil Procedure section 708.110.

Based on this conclusion, the Court finds that Defendant Mendoza’s argument that the E*Trade Securities subpoena duces tecum is untethered to a proper debtor or third-party examination is not meritorious.

III. Quash Subpoena Conclusion

In light of both of Defendant Mendoza’s arguments in support of this motion failing, Defendant Mendoza’s motion to quash the E*Trade Securities subpoena duces tecum is DENIED.

The Court notes, however, that Plaintiffs should reissue their subpoena duces tecum to E*Trade Securities, LLC’s custodian of records to coincide with the debtor examination now scheduled for June 16, 2023.

Motion to Quash Subpoena Duces Tecum, Citibank, N.A.: DENIED.

Legal Standard

See above.

Analysis

Defendant Armando Mendoza makes a motion to quash a November 30, 2022 subpoena duces tecum served by Plaintiffs on Citibank, N.A., which seeks bank records relating to Defendant Mendoza. (Citibank Quash Mot., pp. 1-5.) The motion is based on one ground: the failure to follow procedural requirements for third-party post-judgment discovery. (Citibank Quash Mot., p. 4.)

The motion is unopposed by Plaintiffs. (See docket generally.)

The Court first finds that Defendant Armando Mendoza is a proper movant as the party consumer whose records are sought for production. (Code Civ. Proc., §§ 1985.3, subd. (g), 1987.1, subd. (b)(3).)

The Court next moves to Defendant Mendoza’s sole legal argument.

Defendant Mendoza’s sole argument in favor of quashing the Citibank, N.A. subpoena duces tecum is that a third-party subpoena in a post-judgment proceeding must be tethered to a debtor’s or third-party’s examination, in which the witness providing the documents appears pursuant to Code of Civil Procedure sections 708.110 or 708.120. (Citibank Quash Mot., pp. 1-5.) The motion is thus made on an identical ground as the motion to quash the subpoena duces tecum served on E*Trade Securities, LLC. (Compare E*Trade Quash Mot., pp. 4-5, with Citibank Quash Mot., p 4.)

Here, a review of the subpoena served on Citibank, N.A. subpoena duces tecum shows that it required appearance of Citibank’s custodian of records on January 12, 2023 at 10 a.m. at the Stanley Mosk Courthouse. (Citibank Quash Mot., Goldberg Decl., Ex. A, SUBP-002, p. 1.)

Because of these similarities, the Court adopts its discussion as to Defendant Mendoza’s motion to quash the E*Trade Securities, LLC subpoena duces tecum to DENY Defendant Mendoza’s motion to quash the Citibank, N.A. subpoena duces tecum.

The Court notes, however, that Plaintiffs should reissue their subpoena duces tecum to Citibank, N.A.’s custodian of records to coincide with the debtor examination now scheduled for June 16, 2023.

Conclusion

Defendants Armando Mendoza, Coastal Holdings, LLC, and Class A Realty, Inc.’s Motion to Set Aside Judgment Pursuant to Section 473(b) is DENIED because Defendants’ appeal of the September 28, 2022 judgment—i.e., the judgment that this motion seeks to set aside and vacate—divested this Court of jurisdiction to consider the judgment’s vacatur.

Defendant Armando Mendoza’s Motion to Quash Subpoenas Duces Tecum for Production of Business Records Served to E*Trade Securities, LLC is DENIED because the two arguments raised by Defendant Mendoza to quash the subpoena duces tecum are not meritorious.

Defendant Armando Mendoza’s Motion to Quash Subpoenas Duces Tecum [for] Production of Business Records Served to Citibank is DENIED because the sole argument raised by Defendant Mendoza to quash the subpoena duces tecum is not meritorious.