Judge: Ashfaq G. Chowdhury, Case: 24NNCV02154, Date: 2024-09-05 Tentative Ruling

Case Number: 24NNCV02154    Hearing Date: September 5, 2024    Dept: E

Hearing Date: 09/05/2024 – 8:30am
Case No. 24NNCV02154
Trial Date: UNSET
Case Name: HEJIA ZHU v. MINGLU MA, et al.

TENTATIVE RULING – MOTION TO QUASH

Moving Party:  Non-Party, Bad Rabbit

Responding Party: Plaintiff, Hejia Zhu

RELIEF REQUESTED¿ 
“[N]on-party BAD RABBIT INVESTMENT, LLC will move this Court for an order quashing Plaintiff’s subpoena for records issued to Bank of America on the grounds that counsel for the Plaintiff did not serve a notice to consumer to Bad Rabbit Investment, LLC, in violation of CCP Sections 1983, 1985 and 2025.210(b). Further, the Plaintiff is prohibited for serving any discovery until the parties have been served. As of today’s date, per the LASC case website, none of the Defendants have been served.

BAD RABBIT INVESTMENT, LLC, through counsel, attempted to meet-and-confer with Plaintiff’s counsel via letter and by telephone prior to the filing of the instant motion. Counsel refused to withdraw the subpoena.

Counsel for BAD RABBIT INVESTMENT, LLC’s rate is $475.00 per hour and counsel has been practicing law in the State of California for over thirty-nine (39) years. Counsel spent 3 hours working on the instant motion and anticipates spending 2 hours analyzing the Plaintiff’s opposition. Counsel anticipates spending 1 hour preparing for and appearing at the hearing on this motion. BAD RABBIT INVESTMENT, LLC seeks sanctions against Plaintiff and its counsel, Ping C. Chen, in the amount of $2910.00 (including the $60.00) filing fee for this motion

This motion is made pursuant to Code of Civil Procedure §§ 1987.1, 1985.3, 2016.040, 2025.210 and is based on this notice, the attached memorandum of points and authorities, the declaration of Timothy McGonigle in support thereof, and such further oral and documentary evidence as may be presented at the time of hearing on this motion.”

(Mot. p. 1.)

Procedural
16/21 Day Lapse (CCP § 12c and § 1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a): Ok

Moving Papers: Motion to Quash; Timothy McGonigle Declaration; Proposed Order; Renee Smith Declaration;

Opposition Papers: Opposition

Reply Papers: Reply

Sur Reply – Sur-Reply by Plaintiff

BACKGROUND
On 6/10/2024, Plaintiff, Hejia Zhu, filed a complaint.

Movant here, and non-party, Bad Rabbit Investment LLC (Bad Rabbit) moves to quash Plaintiff’s subpoena for records issued to Bank of America on the grounds that counsel for Plaintiff did not serve a notice to consumer to Bad Rabbit Investment LLC in violation of CCP §§ 1983, 1985, and 2025.210(b). Further, Bad Rabbit argues that Plaintiff is prohibited from serving any discovery until the parties have been served, and no defendants in this case have been served.

ANALYSIS
Service of Summons and Complaint
Bad Rabbit argues that Plaintiff has not served any defendant in this action prior to issuing the subpoena that is the subject of this motion to quash.

Bad Rabbit cites to CCP § 2025.210(b) which states, “ The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date.” (Ibid.)

Problematic with Bad Rabbit’s citation is that based on the chapter title in the CCP, this appears to pertain to oral depositions inside California, and the type of discovery at issue here is a deposition subpoena for production of business records.

However, the case of California Shellfish Inc. v. United Shellfish Co. held:

The “deposition hold” of Code Civ. Proc., § 2025, subd. (b)(2) (plaintiff may not serve deposition notice until 20 days after service of summons on, or appearance by, any defendant), applies to a deposition subpoena that seeks only business records from a nonparty under Code Civ. Proc., § 2020, subd. (d). Code Civ. Proc., § 2020, does not create an independent method of discovery; it merely sets forth procedures concerning discovery from nonparties. Code Civ. Proc., § 2019, lists all methods of discovery available, and the only depositions in that section are “oral and written.” Both types are subject to the hold. The inclusion in Code Civ. Proc., § 2025 (oral depositions), of specific provisions relating to deposition subpoenas seeking business records demonstrates that the Legislature included a Code Civ. Proc., § 2020, subd. (d), subpoena within the general category of “oral depositions” and intended the hold to apply. In this case, since no defendant had been served, the subpoena was subject to being quashed.

(California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 17.)

Further, it was held that “the deposition hold in section 2025, subdivision (b)(2) does apply to deposition subpoena seeking business records, and uphold the order quashing the subpoenas because no defendant had been served with the summons and complaint.” (California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 25.)

Plaintiff submitted an Opposition, and it was entirely off point. The Opposition simply argues about the merits of the case and does not address the merits of the motion to quash.

Further, Plaintiff submitted its opposition on 8/22/2024. On 8/23/2024, Plaintiff filed a First Amended Complaint wherein Plaintiff named Bad Rabbit Investment LLC as a Defendant. In the original complaint, Bad Rabbit was not named as a Defendant.

However, even though this FAC names Bad Rabbit as a Defendant, there is still no proof of service indicating that any defendant in this action has been served the FAC, or the original complaint.

Notice to Consumer
Bad Rabbit states that CCP § 1983.5(b) requires Plaintiff to service a notice to consumer and that Bad Rabbit has not been served a notice to consumer.

In an improperly filed sur-reply, Plaintiff show that it provided a notice to consumer to Bad Rabbit.

Here, the Court fails to see the significance of the notice to consumer. Even if the notice to consumer was served, there is no proof of service of the FAC, or the prior original complaint, on any defendants.

TENTATIVE RULING

As stated in CCP § 1987.1:

(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), 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, including unreasonable violations of the right of privacy of the person.

(b) The following persons may make a motion pursuant to subdivision (a):

(1) A party.

(2) A witness.

(3) A consumer described in Section 1985.3.

(4) An employee described in Section 1985.6.

(5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights.

(CCP § 1987.1(a)-(b).)

“We conclude that the deposition hold in section 2025, subdivision (b)(2) does apply to a deposition subpoena seeking business records, and uphold the order quashing the subpoenas because no defendant had been served with the summons and complaint.” (California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 25.)

Here, there is no proof that a single defendant has been served the summons and complaint in this action. Therefore, Bad Rabbit’s motion to quash the deposition subpoena is GRANTED.

Sanctions
“Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (CCP § 1987.2(a).)

Bad Rabbit moves for sanctions in the amount of $2,910.00.

Bad Rabbit’s counsel, Timothy McGonigle, bases his sanctions request off of the following: (1) Hourly rate of $475; (2) Three hours drafting this motion; (3) Two hours reviewing and analyzing opposition papers; (4) One hour preparing for and appearing at the hearing on this motion.

The Court will hear argument.