Judge Christopher K. Lui, Case Number: 23SMCV02418, Date: 2025-05-06 Tentative Ruling

The following
tentative ruling is issued pursuant to Rule of Court 3.1308 at 2:10 PM on May 5, 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 May 5, 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.

Defendant Ross Tarkhan moves to quash the deposition subpoena issued to JPMorgan Chase Bank, N.A. for records relating to Tigran Ghuylan. If Ghuylan is simply an alias of Tarkhan, then Plaintiff must serve Tarkhan in this capacity as a consumer.

Defendant Ross Tarkhan’s motion to quash the subpoenas as to the accounts for Tarkhan and Mnatsakanyan is GRANTED IN PART and DENIED IN PART. The subpoenas shall be limited to October 1, 2022 to the present.

Defendant Ross Tarkhan moves to quash the deposition subpoena issued on February 20, 2025 to JPMorgan Chase Bank, N.A. for the following records:

Defendant argues that the subpoena seeks information that is (1) neither relevant to the subject matter of the action nor is calculated to lead to the discovery of admissible evidence; and (2) overly broad.

Defendant argues that the subpoena seeks documents any and all records pertaining to Tarkhan starting from January 2022, nearly a year before the loan proceeds were disbursed, to the present, well over two years after the loan proceeds were disbursed.

In the motion, Defendant Tarkhan admits that Raz Mnatsakanyan is his prior name. (Motion, Page 2:28-3:1.) However, Defendant claims he does not know the identity of Tirgran Ghuylan. In the Reply, Defendant points out that the notice to consumer was never served on Ghuylan, as required by Civ. Proc. Code, § 1985.3(b). (McCaskill Decl., ¶ 13.) This argument appears to be well-taken. If Plaintiff contends Ghuylan is simply an alias of Tarkhan, then Plaintiff must serve Tarkhan in this capacity as a consumer. The motion to quash is GRANTED as to the subpoena for records pertaining to Tigran Ghuylan.

Plaintiff argues that the motion is defective for failure to provide a separate statement. While this argument is true, it is Plaintiff, not Defendant, who must demonstrate good cause for the requested production. Thus, Wilshire’s comparison of Defendant’s instant motion to quash a subpoena, to the Court’s past denial of Wilshire’s motion to enforce a subpoena is not an apt comparison. The failure to provide a separate statement does not require a denial of the motion.

(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.

There is no meet and confer requirement set forth in Civ. Proc. Code, § 1987.1.

However, case law has imposed the “good cause” requirement for subpoena document requests propounded upon non-parties, that is, the propounding party must articulate specific facts relating to each category of materials sought to justify production:

In the course of the litigation, Thiem served a subpoena under section 2020 on Calcor's custodian of records demanding Calcor, a nonparty and Thiem's competitor, to, in effect, produce all materials in its possession relating to gun mounts, going back nearly 10 years. The subpoena fails to identify any specific document but merely describes broad categories of documents and other materials.

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 [*224] 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.) Section 2020, the statute at issue, contains no such specific requirement. However, since both sections are part of a single statutory scheme, and since it is unlikely the Legislature intended to place greater burdens on a nonparty than on a party to the litigation, we read a similar requirement into the latter section.

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 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.) The concerns for avoiding undue burdens on the "adversary" in the litigation expressed in Greyhound apply with even more weight to a nonparty.

Had the Greyhound court been able to anticipate the tremendous burdens promiscuous discovery has placed on litigants and nonparties alike, it might well have taken a stronger stand against such "fishing." Greyhound's optimism in noting the then new discovery system would be "simple, convenient and inexpensive," would "expedite litigation," and "expedite and facilitate both preparation and trial," has certainly proven to have been considerably off the mark. (56 Cal. 2d at p. 376.)

The issues in this litigation may essentially be reduced to the question whether Thiem's work met Delco's specifications. This may be determined without any reference to the contract between Delco and Calcor or the specifications which are part of that contract. Another issue which may exist is whether Delco may recover the excess of the cost of the gun mounts procured from Calcor as damages for "cover" under California Uniform Commercial Code section 2712. (See Gerwin v. Southeastern Cal. Assn. of Seventh Day Adventists (1971) 14 Cal. App. 3d 209, 217-218 [92 Cal. Rptr. 111].) If so, differences in specifications issued to Thiem and to Calcor may be relevant. However, discovery by Thiem from Delco should normally provide it with this evidence. As between parties to litigation and nonparties, the burden of discovery should be placed on the latter only if the former do not possess the material sought to be discovered. An exception to this may exist where a showing is made the material obtained from the party is unreliable and may be subject to impeachment by material in possession of the nonparty. Thiem has not even attempted to demonstrate why it cannot obtain the needed materials from Delco or why such materials might be unreliable.

(Calcor Space Facility, supra, 53 Cal.App.4th at 224-25 [bold emphasis and underlining added].)

In ruling upon a privacy objection in the contact of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams, supra, 3 Cal.5th at 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.) If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure serves. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling state interest” or “compelling need[1]” simply because discovery of any facially private information is sought. (Id. at 556-57.)

(International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 330.)

In the Opposition, Plaintiff proffers the following as good cause for the requested documents:

Tarkhan is the CEO of BHG Consulting Group, which received more than $4.1 million of the fraudulently obtained loan proceeds through its account at JPMorgan Chase. After Wilshire filed multiple motions to compel, Tarkhan finally produced documents showing his association with another member of the conspiracy, Defendant Enrique Martines, who used a shell company to funnel millions of dollars of the loan proceeds through the BHG account that Tarkhan owns.

As such, Wilshire subpoenaed records from JPMorgan Chase seeking records regarding Tarkhan (and his purported aliases “Raz Mnatsakanyan” and “Tigran Ghuylan”). Plaintiff argues that documents regarding BHG and Tarkhan’s finances are relevant to determine the full extent of Tarkhan’s involvement in the scheme, the current location of the stolen funds, and the identities of any other co-conspirators in the scheme. It is anticipated that the Subpoena will result in the production of bank statements for Tarkhan’s accounts with JPMorgan Chase. The facts to be uncovered are what accounts Tarkhan has with JPMorgan Chase, which is reasonably likely to lead to the discovery of evidence of the location of the stolen funds and how Tarkhan uses his accounts to funnel stolen funds. The Subpoena will also uncover the activity on those accounts from shortly before the loan proceeds were disbursed until the present. This will show who was making deposits into, and withdrawals from, the account(s) and in what amounts, which is relevant to identify Tarkhan’s co-conspirators. Such documents will also lead to evidence of the current location of the stolen funds. It is also expected the Subpoena will result in documents showing the extent of the relationship between Tarkhan and Enrique Martines, as well as Tarkhan’s history with other co-defendants and co-conspirators. The Subpoena is narrowly tailored to documents from a few months before the loan proceeds were dispersed in order to provide a baseline to compare the activity before and after the loan proceeds were stolen.

To the extent JPMorgan has other documents besides bank statements during the narrow time frame, Wilshire expects any such additional documents will consist of records of who opened the account(s), who holds title to the account(s), who else has signatory authority, any alerts of suspicious activity on the account(s), and any account closure documents. These records are necessary to show who else Tarkhan is conspiring with and the extent to which JPMorgan is aware of Tarkhan’s illegal activities.

The Court finds that the above only demonstrates good cause for a narrower time-frame, namely, October 1, 2022, as Defendant Marine A. Sarkisian, posing as Cynthia Beck, submitted the initial loan application for $2,250,00.00 on October 26, 2022. (Complaint, ¶ 17.) The $5,700,000 loan proceeds were first wired by Wilshire Quinn Income Fund to the escrow company on November 2, 2022. (Complaint, ¶ 28.) Funds flowing to Tarkhan/Mnatsakanyan could not have occurred prior to that date.

The Court finds good cause for production of documents only dating back to October 1, 2022 to the present, concerning Ross Tarkhan and Raz Mnatsakanyan. Tarkhan/Mnatsakanyan privacy interests in financial information prior to October 1, 2022 outweighs Plaintiff’s need to discovery information regarding possible communications with co-conspirators because presumably there would be communications with co-conspirators in the month leading up to the actual funding of the loan. Further, Plaintiff’s need to discover the identity of persons who opened the accounts (prior to October 2022) is outweighed by Tarkhan/Mnatsakanyan privacy interests. On the other hand, Plaintiff’s interest in discovery the identity of persons or entities to whom funds were transferred out of Tarkhan/Mnatsakanyan’s accounts for purposes of tracing and identifying other co-conspirators, outweighs Tarkhan/Mnatsakanyan’s privacy interests.

As such, the motion to quash the subpoenas as to the accounts for Tarkhan and Mnatsakanyan’s is GRANTED IN PART and DENIED IN PART. The subpoenas shall be limited to October 1, 2022 to the present.

[1] In this regard, Plaintiff’s repeated argument that Defendants must show a compelling need for the discovery is based on authority which has been overruled.