Judge: Armen Tamzarian, Case: 22STCV19363, Date: 2022-10-27 Tentative Ruling

Case Number: 22STCV19363    Hearing Date: October 27, 2022    Dept: 52

Tentative Ruling:

Plaintiff Dorit Manusevitz’s Motion to Compel Production of Documents

Plaintiff Dorit Manusevitz moves to compel defendants Kamyar Mateen, Shervin Mateen, and CB Chicago to produce documents.

Plaintiff electronically served defendants’ attorney a deposition subpoena for production of business records on form SUBP-010. The subpoena is defective for four reasons.

First, a deposition subpoena must be issued and signed by the clerk of the court (CCP § 2020.210(a)) or “an attorney of record for any party” (CCP § 2020.210(b)). The subpoena is signed by plaintiff herself, not the clerk of court or an attorney of record. (Lewiston Decl., Ex. A, p. 1.)

Second, the subpoena was improperly directed to defendants CB Chicago, Kamyar Mateen, and Shervin Mateen. (Lewiston Decl., Ex. A, p. 1.) A deposition subpoena “may be used to obtain discovery within the state from a person who is not a party to the action.” (CCP § 2020.010(a).) Moreover, a deposition subpoena for business records “shall be directed to the custodian of those records or another person qualified to certify the records.” (CCP § 2020.410(c).)

The defendants are parties to the action, not a custodian of records. The appropriate method to request documents from a party is a demand for inspection and copying under Code of Civil Procedure section 2031.010.

Third, the subpoena does not include a proper deposition officer. “The officer for a deposition seeking discovery only of business records for copying… shall be a professional photocopier registered under Chapter 20 (commencing with Section 22450) of Division 8 of the Business and Professions Code, or a person exempted from the registration requirements of that chapter under Section 22451 of the Business and Professions Code. This deposition officer shall not be financially interested in the action, or a relative or employee of any attorney of the parties.” (CCP § 2020.420.)

Instead of a registered professional photocopier or other exempt deposition officer, plaintiff made herself the deposition officer. (Lewiston Decl., Ex. A, ¶ 1.) Also, as the plaintiff, she is financially interested in the action.

Finally, the subpoena does not allow adequate time for production of the records. A deposition subpoena for business records “shall command compliance in accordance with Section 2020.430 on a date that is no earlier than 20 days after the issuance, or 15 days after the service, of the deposition subpoena, whichever date is later.” (CCP §

2020.410(c).) The subpoena is dated July 26, 2022, and demands production of records on August 5, 2022—only 10 days later. (Lewiston Decl., Ex. A, p. 1.)

Sanctions

In the opposition, defendants seek $2,100 in sanctions against plaintiff. Unsuccessfully moving to compel discovery without substantial justification is a misuse of the discovery process subject to monetary sanctions. (CCP §§ 2023.010(h), 2025.480(j).) The court finds plaintiff did not act with substantial justification and sanctions are just under the circumstances.

The court finds defendants did not reasonably incur $2,100 in attorney fees in opposing this motion. They seek six hours of attorney fees at $350 hourly. (Lewiston Decl., The court finds defendants reasonably incurred four hours of fees at $350 hourly for a total of $1,400.

Disposition

Plaintiff Dorit Manusevitz’s motion to compel production of documents is denied.

Plaintiff Dorit Manusevitz is ordered to pay $1,400 jointly to defendants Kamyar Mateen, Shervin Mateen, and CB Chicago Partners Ltd. within 15