Judge: Armen Tamzarian, Case: 23STCV28538, Date: 2024-05-31 Tentative Ruling
Case Number: 23STCV28538 Hearing Date: May 31, 2024 Dept: 52
Non-Party
Sunlight Financial, LLC’s Motion to Quash Deposition Subpoena for Production of
Business Records
Non-party
Sunlight Financial, LLC (Sunlight) moves to quash a deposition subpoena for
production of business records served by plaintiff Magdalena Lopez. A court “may make an order quashing [a]
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, including unreasonable violations of the right of
privacy of the person.” (CCP §
1987.1(a).)
Service
Plaintiff properly served the
subpoena for business records on Sunlight.
Sunlight argues that, because it is not a resident of California,
service on its registered agent for service in this state was not valid. Corporations Code section 2210(c) provides, “Delivery
by hand of a copy of any process against a foreign corporation … if the
corporation has designated a corporate agent, to any person named in the latest
certificate of the corporate agent filed pursuant to Section 1505 shall
constitute valid service on the corporation.”
Section 2105(a)(7)(A) provides, “A foreign corporation shall not
transact intrastate business without having first obtained from the Secretary
of State a certificate of qualification” that requires the corporation’s “irrevocable
consent to service of process directed to it upon the agent designated.”
It
is undisputed that plaintiff personally served the subpoena on CSC Lawyers,
Inc., the corporate agent for service Sunlight designated as its agent for
service in California. (Hider Decl., Ex.
B.) This service was valid.
Sunlight
argues the above provisions of the Corporations Code do not apply because a
deposition subpoena is not “process.” It
is. “ ‘Process’ signifies a writ or
summons issued in the course of a judicial proceeding.” (CCP § 17(b)(7).) “The process by which the attendance
of a witness is required is the subpoena. It is a writ or order directed to a
person” that requires a witness to attend or “bring any books, documents,
electronically stored information, or other things under the witness’s control.” (CCP § 1985(a), italics added.)
Sunlight
contends the definition of “process” under the Code of Civil Procedure section
does not apply to Corporations Code section 2110. It does.
Corporations Code section 2110 expressly states it applies to “any
process.” Section 2110.1 further
provides, “In addition to the provisions of Chapter 4 (commencing with Section
413.10) of Title 5 of Part 2 of the Code of Civil Procedure, process may be
served upon a foreign corporation as provided in this chapter.” Sunlight fails to identify any other definition
of “process” unique to the Corporations Code or section 2110 thereof.
Sunlight
also argues “even if the service itself was proper, the court still lacks
jurisdiction over the documents at issue.”
(Reply, p. 3.) An order
compelling Sunlight to comply with the subpoena requires personal jurisdiction
over Sunlight, not “jurisdiction over the documents.” Sunlight does not argue it lacks sufficient
minimum contacts for personal jurisdiction in California. It registered with the California Secretary
of State for the purpose of doing business in California. Plaintiff seeks documents regarding
Sunlight’s business involving California residents and photovoltaic systems
located in this state. Sunlight is
subject to personal jurisdiction in California.
This court has the power to order it to comply with a subpoena for
business records.
Code
of Civil Procedure sections 1987.3 and 1989 govern records-only subpoenas to
out-of-state witnesses. Section 1987.3
provides: “When a subpoena duces tecum is served upon a custodian of records .
. . and his personal attendance is not required by the terms of the subpoena,
Section 1989 shall not apply.” Section
1989 states: “A witness, including a witness specified in subdivision (b) of
Section 1987, is not obliged to attend as a witness before any court, judge,
justice or any other officer, unless the witness is a resident within the state
at the time of service.” Together these
statutes permit service of a subpoena duces tecum on an out-of-state witness
provided the court has personal jurisdiction over that witness.
Here,
plaintiff’s subpoena only demands production of business records. It does not demand a witness’s
attendance. Moreover, the court has
personal jurisdiction over Sunlight. The
subpoena served by plaintiff therefore is valid and enforceable.
Sunlight’s
reliance on Code of Civil Procedure section 2020.220 is unpersuasive. Subdivision (c) of that statute provides that
a deposition subpoena served on a deponent “who is a resident of California” may
require personal attendance and the production of documents. It does not state that a deposition subpoena
is never binding on a nonresident of California.
Notice
to Consumer
Sunlight
objects to the subpoena on the basis that it seeks consumers’ personal records
without giving notice to the consumers. When
a party serves a “subpoena duces tecum for the production of personal records,
the subpoenaing party shall serve or cause to be served on the consumer whose
records are being sought a copy of the subpoena duces tecum” and a specified
notice to the consumer. (CCP §
1985.3(b).)
That
procedure does not apply. Lopez does not
seek “personal records” under Code of Civil Procedure section
1985.3(a)(1). That subdivision defines “
‘Personal records’ ” as copies of documents “pertaining to a consumer and which
are maintained by any ‘witness’ which is” one of numerous categories of service
providers or institutions, such as healthcare providers, banks, attorneys,
accountants, and schools. (Ibid.) Sunlight has not shown that it falls within
any of those categories. Its papers
never identify any category that applies.
Lopez
therefore was not required to follow the procedure under Code of Civil
Procedure section 1985.3.
Sunlight’s
objections on this basis are overruled.
Undue
Burden
Finally, Sunlight argues the
subpoena seeks electronically stored information that is not readily
accessible. “The subpoenaed person
opposing the production, inspection, copying, testing, or sampling of
electronically stored information on the basis that information is from a
source that is not reasonably accessible because of undue burden or expense
shall bear the burden of demonstrating that the information is from a source
that is not reasonably accessible because of undue burden or expense.” (CCP § 1985.8(e).)
Sunlight
does not meet its burden. “An ‘objection
based upon burden must be sustained by evidence showing the quantum of work
required.’ ” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) To
sustain this objection, the court must make “a comparative judgment that any
responsive burden would be undue or excessive, relative to the likelihood of
admissible evidence being discovered.” (Ibid.)
Justin
Carpenter, Sunlight’s managing director and associate general counsel
(Carpenter Decl., ¶ 1), states, “In order to comply fully with Requests No. 5
and No. 8 of the Deposition Subpoena for Production of Business Records (the ‘Subpoena’)
purportedly served by Plaintiff Magdalena Lopez, Sunlight would be required to:
(i) run large-scale searches in these databases of every current and former
employee of Sunlight to identify email communications or records related to
Lopez’s residential solar panel system; (ii) host the document collections on a
third-party ediscovery platform; and (iii) engage outside counsel to manually
review the documents to evaluate whether each is responsive, privileged, or
otherwise require redactions.” (Id.,
¶ 6.) This declaration makes generic
statements without estimating the amount of time it would take to respond or the
expenses Sunlight would incur. On the
other hand, plaintiff adequately shows this subpoena is likely to result in
discovering admissible evidence. The
court therefore finds responding to this subpoena will not result in undue
burden or expense.
Sunlight’s objections on this basis
are overruled.
Disposition
Non-party Sunlight Financial,
LLC’s motion to quash deposition subpoena is denied. Sunlight Financial, LLC is ordered to
comply with plaintiff’s subpoena for business records within 30 days.