Judge: Christian R. Gullon, Case: 22PSCV00970, Date: 2024-07-18 Tentative Ruling

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Case Number: 22PSCV00970    Hearing Date: July 18, 2024    Dept: O

Tentative Ruling

MOTION TO COMPEL NON-PARTY COMPLIANCE WITH SUBPOENA AND REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES is GRANTED, but attorney fees are reduced from $1,600 to $800.

Background

This case arises from a joint venture. Plaintiff Jose Medina alleges the following against Defendants JOSE BONILLA (“Bonilla”), an individual; JJMG, INC., a California Corporation; MEXICO LINDO RESTAURANT, a business organization, form unknown; and GLORIA BONILLA (“Gloria”): In 2017, Plaintiff and Bonilla entered into a joint venture for the operation of a restaurant. Plaintiff contributed $80,000.00 towards the restaurant and Bonilla borrowed $10,000.00 from Plaintiff for the same. In 2022, four years after the restaurant began its operation, Bonilla sought to remove Plaintiff from the partnership.

On September 1, 2022, Plaintiff filed suit against Defendants asserting the following causes of action (COAs):

On November 29, 2022, Bonilla, Gloria, and JJMG Inc. dba Mexico Lindo Restaurant (collectively, “Defendants”) filed their answer. That same day, Defendants filed a cross-complaint and a first amended cross complaint (1ACC) against Plaintiff for:

1.     Interference with Economic Advantage

2.     Intentional Infliction of Emotional Distress

On December 29, 2022, Plaintiff filed his answer to the 1ACC.

On April 29, 2022, the court held a ‘Status Conference Re: Mandatory Settlement Conference/Trial Setting.’ The minute order indicates that the matter did not settle during mediation and that “Parties inform the Court that discovery is not yet completed.”

On May 8, 2024, Plaintiff filed an IDC statement. Note: the docket indicates that the ‘court allowed the date of 7/18/24 for 1 motion to compel to be heard.’

On May 22, 2024, Plaintiff filed the instant motion.

Legal Standard

The scope of discovery is set by the pleadings, in that for information to be discoverable, it must be relevant to the subject matter, and reasonably calculated to lead to the discovery of relevant, admissible information. (Code of Civ. Proc. 2017.010.) “The scope of discovery is one of reason, logic, and common sense.” (Lipton v. Sup. Ct. (1996) 48 Cal. App. 4th 1599, 1612, quoting Weil & Brown, Civil Procedure Before Trial, supra, at ¶ 8:67, p. 8C–2, italics in original.) Pursuant to CCP section 1987.1 and C.C.P. § 2025.480, the court, upon a proper showing, is authorized to compel compliance with the deposition subpoena and order the witness to produce the documents requested in the deposition subpoena. (Motion p. 4.)[1] A subpoena for the production of business records need not be accompanied by an affidavit or declaration showing good cause for production of the records. (Code of Civ. Proc., § 2020.410, subd. (c).)   

Like other type of discovery, if objections are not timely made, the responding party waives such objections. (Monarch Health Care v. Superior Court (2000) 78 Cal. App. 4th 1282, 1288 [The protection of information from discovery on the ground that it is privileged ... is waived unless a specific objection to its disclosure is timely made . . .”]; See also C.C.P. § 2025.460.)

Lastly, as for attorney fees, monetary sanctions (as well as contempt) are available against nonparties who “flout the discovery process.” (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 476.)

Discussion

Plaintiff seeks to conduct discovery on the financial issues presented by the parties’ dispute.

On February 29, 2024, non-party Enrrique Paiz operating as and custodian of records of APG Accounting & Bookkeeping (“Deponent”) was served with a subpoena for production of business records. Documents pursuant to the subpoena were required to be served no later than April 1, 2024. However, Deponent did not contact Counsel regarding this matter; did not request an extension to comply; did not provide a custodian of records affidavit attesting that no documents existed; did not respond to Counsel’s attempt on April 5, 2024 to gain compliance; nor responded to April 23, 2023 efforts to resolve the matter.

To the extent there are defects in form or content of the subpoena, defects in service of the subpoena, or defects with the scope of discovery, the burden is usually on the person seeking to prevent disclosure to show grounds to quash or for a protective order, but no such objection has been made.

Attorney Fees

As for attorney fees, Counsel seeks $1,600 (1.5 hours drafting motion and seeking resolution with Deponent; 2.5 hours anticipated in attending hearing at $400/hour). Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court reduces the anticipated hours attending the hearing from 2.5 hours to .5 hours for total fees and costs of $800 which are properly ordered to be paid by Enrrique Paiz operating as and custodian of records of APG Accounting & Bookkeeping [calculated as follows: 2 hours (1.5 hours (motion and meet and confer efforts) + .5 hours (attending hearing) at $400/hour].

Conclusion

Based on the foregoing, the motion is granted, and attorney fees are awarded in a reduced amount.[2]