Judge: Cherol J. Nellon, Case: BC717376, Date: 2023-11-15 Tentative Ruling

Case Number: BC717376    Hearing Date: February 28, 2024    Dept: 14

Starvox Entertainment v. June Entertainment

Case Background

 

Plaintiffs allege that Defendants defrauded them of significant sums of money by falsely asserting that Defendants were the agents of certain acting stars and receiving payments on behalf of those stars.

 

On August 10, 2018, Plaintiffs filed their Complaint for (1) Breach of Written Agreement; (2) Fraudulent Inducement; (3) Fraud; (4) Breach of Fiduciary Duty; (5) Conversion; (6) Money Had and Received; (7) Accounting; (8) Civil Conspiracy; and (9) Unjust Enrichment against Defendants June Entertainment, LLC (“June”); Rubicon Falls Entertainment, LLC (“Rubicon”); John Ryan Jr. (“Ryan”); Barry Waldman (“Waldman”); R. Scott Reid (“Reid”); One Entertainment, LLC (“One”); and DOES 1-25.

 

On March 25, 2019, the default of Defendant June was entered.

 

On April 17, 2019, Plaintiff voluntarily dismissed Defendant Waldman, without prejudice.

 

On October 2, 2019, Defendant Reid filed his Answer.

 

On January 28, 2020, Defendant Ryan filed his Answer.

 

On October 21, 2020, this court ordered the Answer of Defendant Ryan stricken and his default entered.

 

On January 3, 2022, this court dismissed the entire case, without prejudice.

 

On January 31, 2022, Plaintiff voluntarily dismissed Defendants Rubicon and Reid, with prejudice.

 

On February 1, 2022, this court vacated the order of January 3, 2022, and clarified that all defendants other than Defendants June and Ryan were dismissed and that Defendants June and Ryan remained in default.

 

On February 25, 2022, this court entered default judgment against Defendants June and Ryan.

 

On September 22, 2022, this court ordered the default and default judgment against Defendant Ryan set aside.

 

On October 3, 2022, Defendant Ryan filed his Answer.

 

Jury Trial is currently set for March 11, 2024.

 

Instant Motion

 

Defendant Ryan now moves this court for an order quashing a deposition subpoena served on third-party witness US Bank.

 

Decision

 

            The motion is TAKEN OFF-CALENDAR.

 

Discussion

 

            On December 29, 2023, Plaintiff’s counsel served a document subpoena on US Bank. (Defense Exhibit 1). The subpoena asks for bank statements issued to Defendant Ryan and Defendant June. (Id.).

 

            Defendant Ryan argues that this subpoena was served after the discovery cut-off. This is correct. However, it does not end the discussion.

 

            On April 11, 2023, this court set trial for January 29, 2024, with all discovery deadlines pegged to that date. Though the court has subsequently continued the trial, it has not continued the discovery deadlines. The parties were entitled to complete discovery “on or before” the 30th day prior to the trial. Code of Civil Procedure § 2024.020. The 30th day prior to January 29, 2024, was December 30, 2023. See Code of Civil Procedure § 12c. However, since that day was a Saturday, it is excluded pursuant to Code of Civil Procedure § 12b. Therefore, December 29, 2023, was the deadline for completion of discovery.

 

            Serving a document subpoena on the deadline date violates that deadline. Any witness has at least 15 days to respond to a record subpoena. Code of Civil Procedure § 2020.410(c). Therefore, the discovery will, by definition, not be completed before the deadline. Plaintiff therefore has no enforceable right to a response to the subpoena.

 

            This does not mean that US Bank can’t answer. It just means that US Bank may choose not to answer without facing any consequences from this court. And the rule has a flip side: there is also a cut-off date for the hearing of party discovery motions.

 

            The parties are entitled to have a discovery motion heard “on or before” the 15th day prior to trial. Code of Civil Procedure § 2024.020. The 15th day prior to January 29, 2024, was January 14, 2024. However, since that day was a Sunday, both it and January 13, 2024, are excluded pursuant to Code of Civil Procedure § 12b. Therefore, January 12, 2024, was the last day for the court to hear discovery motions.

 

This motion was not filed until January 18, 2024, after the deadline. At no point did Defendant Ryan ask this court to hear the motion before the deadline. Nor has there been a motion asking the court to re-open discovery so that this motion could be brought. Therefore, by the terms of Section 2024.020, the court is not permitted to hear this motion. See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products (2008) 165 Cal.App.4th 1568, 1585-90.

 

Conclusion

 

            Defendant Ryan has correctly concluded that Plaintiffs have no right to enforce their subpoena. Nevertheless, as provided in the very same statute, the court cannot hear a party’s motion to quash that subpoena. Therefore, the motion is TAKEN OFF-CALENDAR.