Judge Christopher K. Lui, Case Number: 22STCV41098, Date: 2025-02-20 Tentative Ruling

Judge: Christopher K. Lui, Case: 22STCV41098, Date: 2025-02-20 Tentative Ruling

Case Number: 22STCV41098 Hearing Date: February 20, 2025 Dept: 76

The following tentative ruling is issued pursuant to Rule of Court 3.1308 at 2:30 PM on February 19, 2025.

Notice of intent to appear is REQUIRED pursuant to California Rule of Court 3.1308(a)(1). The Court does not desire oral argument on the motion addressed herein.

As required by Rule 3.1308(a)(1), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 by 4:00 p.m. on February 19, 2025.

Notice to Department 76 should be sent by email to smcdept76@lacourt.org, with opposing parties copied on the email. The high volume of telephone calls to Department 76 may delay the Court’s receipt of notice, so telephonic notice to 213-830-0776 should be reserved for situations where parties are unable to give notice by email.

Per Rule of Court 3.1308, the Court may not entertain oral argument if notice of intention to appear is not given

Plaintiff alleges that a grant deed was forged conveying Plaintiff’s properties, which was then encumbered, all without Plaintiff’s authorization. Plaintiff brings a quiet title action.

Defendants Wilshire Quinn Income Fund REIT, LLC and Wilshire Quinn Income Fund, LLC move to enforce the subpoena served upon JPMorgan Chase and requests the imposition of sanctions against non-party Ross Tarkhan.

TENTATIVE RULING

Defendants Wilshire Quinn Income Fund REIT, LLC and Wilshire Quinn Income Fund, LLC’s motion to enforce the subpoena served upon JPMorgan Chase and requests the imposition of sanctions against non-party Ross Tarkhan is DENIED.

ANALYSIS

Motion To Enforce Subpoena

Non-party Ross Tarkhan argues that this motion was never served upon him. The proof of service reflects e-mail service upon attorney David R. Euredjian as counsel for Ross Tarkhan. However, electronic service is not permitted upon a non-party absent their consent. On the other hand, moving parties argue that the Opposition was untimely filed and served six days after the statutory deadline.

The Court intends to consider the motion and the Opposition on the merits, so if either party needs additional time to address the defect in service and the late opposition, the Court will continue the hearing. Otherwise, the Court will proceed to address the merits of the motion.

Discussion

Civ. Proc. Code, § 1987.1(a) provides: “If a subpoena requires the attendance of a witness or the production of . . . documents . . . at the taking of a deposition, the court, upon motion . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare. . . .” (Civ. Proc. Code, § 1987.1.)

§ 1987.1 does not contain a meet and confer requirement. As such, the adequacy of any meet and confer efforts is not a reason to deny this motion.

However, case law has read a good cause requirement as to requests for production of documents from a nonparty. (Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 223-24.)

“Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223 [61 Cal. Rptr. 2d 567].) Discovery devices must “be used as tools to facilitate litigation rather than as weapons to wage litigation.” (Id. at p. 221.) A party seeking to compel discovery must therefore “set forth specific facts showing good cause justifying the discovery sought.” (§ 2031.310, subd. (b)(1); see Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th at p. 223.) To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.

(Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224 (bold emphasis and underlining added), overruled on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, n. 8.)

Although the scope of civil discovery is broad, it is not limitless. . . . [Former] Section 2031, subdivision (l), which applies to document production requests served on a party, requires a party seeking to compel such production to “set forth specific facts showing good cause justifying the discovery sought by the inspection demand . . . .” (Italics in original.) . . .

In law and motion practice, factual evidence is supplied to the court by way of declarations. Thiem provided argument but no evidence at all to permit the court to conclude the material sought was “admissible in evidence or appear[ed] reasonably calculated to lead to the discovery of admissible evidence.” The only justification for the request is contained in Thiem’s “Statement Pursuant to Rule 335(a)” and in a document entitled “Combined Opposition to Calcor Space Facility, Inc.’s Motion for Protective Order and Reply Brief in Support of Motion to Compel Calcor Space Facility, Inc. to Comply with Deposition Subpoena for Production of Business Documents.” Neither document is verified, and thus they do not constitute evidence.

Even were we to ignore that the statements purporting to justify an order compelling Calcor to produce its documents and other materials are unverified, they still fail. There is an absence of specific facts relating to each category of materials sought to be produced; the justifications offered for the production are mere generalities. The very vice of the subpoena’s promiscuity is well illustrated by Thiem’s inability to provide focused, fact-specific justifications for its demands. The noted generality of the subpoena’s definitions, instructions and categories which merely add up to a demand Calcor produce everything in its possession having anything to do with gun mounts, precludes Thiem from demonstrating any particular item or category in fact constitutes or contains matter which “is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (§ 2017, subd. (a).) The purported justification for imposing this great burden on Calcor necessarily suffers from the same generality as the subpoena itself.

Although appellate courts have frequently stated “fishing expeditions” are permissible in discovery, there is a limit. As noted in Gonzalez v. Superior Court (1995) 33 Cal. App. 4th 1539 [39 Cal. Rptr. 2d 896], “These rules are applied liberally in favor of discovery ( Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal. 3d 785, 790), and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Id. at p. 1546.) However, early in the development of our discovery law our Supreme Court recognized the limits on such “fishing expeditions.” In [*225] Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355 [15 Cal. Rptr. 90, 364 P.2d 266], the seminal case in California civil discovery, the court gave examples of improper “fishing” “The method of ‘fishing’ may be, in a particular case, entirely improper (i.e., insufficient identification of the requested information to acquaint the other party with the nature of information desired, attempt to place the burden and cost of supplying information equally available to both solely upon the adversary, placing more burden upon the adversary than the value of the information warrants, etc.). Such improper methods of ‘fishing’ may be (and should be) controlled by the trial court under the powers granted to it by the statute.” ( Id. at pp. 384-385.) . . .

(Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 223-25 [bold emphasis and underlining added].)

In the separate statement, moving parties have not made a fact-specific showing of good cause for each of the categories of documents set forth in the deposition notice. There are 5 categories, which have no temporal or subject matter limitation.

The 2AC alleges that the forged signature which fraudulently transferred title to the subject property occurred in October 28, 2022. (2AC, ¶ 15.) Moving parties proffered good cause in the separate statement, incorporated by reference as to each category, is as follows:

[D]ocuments regarding BHG and Tarkhan’s finances are relevant to determine the full extent of Tarkhan and BHG’s involvement in the scheme, the current location of the stolen funds, and the identities of any other co-conspirators in the scheme. This is more than sufficient to show good cause for the discovery.

(Separate Statement, Pages 4:26 – 5:2.)

There is no explanation what facts are expected to be uncovered, why an unlimited time or scope is appropriate, nor how such facts will prove an issue of consequence in this action. As such, moving parties have not demonstrated that their need to discovery the broad category of documents outweighs Tarkhan’s privacy right in his financial records. “Undoubtedly, individuals have a privacy interest in their financial information. (Citation omitted.) (In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1087.)

As such, Tarkhan’s objections on the ground of overbreadth and right of privacy are SUSTAINED.

The motion to enforce the business records subpoena and for sanctions is DENIED.