Judge: Craig Griffin, Case: Strelkova v. Allen, Date: 2023-05-15 Tentative Ruling
The motion by non-party Pavel Parshin to quash the deposition subpoena issued by Defendant Douglas Allen to KC Lending, Inc. is DENIED as MOOT. Defendant’s request for sanctions is GRANTED.
The motion to quash was filed on 2/2/23 and seeks to quash the subpoena to KC Lending, Inc., a copy of which is attached as Exhibit A to the motion. The subpoena was dated 11/7/22 and had a deposition date of 12/29/22. There were no other subpoenas attached to or mentioned in the motion.
Mr. Parshin asserts that the basis for the motion is that he “was not served with a copy of any Defendant’s subpoena or a notice to consumer related to KC Lending Inc.” (Parshin Decl. at ¶6) Allen’s counsel states that “Based upon the information disclosed in discovery, I did not contemplate that Parshin might have dealings with any of the mortgage lenders independent of Strelkova’s applications.” (Tomlin Decl at ¶13) He concedes that “No separate notice to consumer identifying Parshin as a ‘consumer’ was served as a result.” (Tomlin Decl. at ¶13)
Mr. Parshin contacted Allen’s counsel regarding the subpoena on 11/14/22 to discuss the subpoena. (Tomlin Decl. at ¶14) After Mr. Parshin contacted him, and they were unable to informally resolve the matter, Allen’s Counsel “cancelled service of the subpoena upon KC Lending, Inc., who had not been served at the time of my discussion with Parshin.” (Tomlin Decl. at ¶16.) Mr. Parshin acknowledges in a supplemental declaration filed on 4/21/23 that he was informed on February 2, 2023, that the subject subpoena to KC Lending, Inc. was not served on KC Lending. (Parshin Supp. Decl. at ¶1)
Accordingly, the motion is MOOT as to the deposition subpoena to KC Lending, Inc. Mr. Parshin discusses in his supplemental declaration and reply a subpoena that was issued to Right Choice Mortgage which had a deposition date of 12/7/22. However, the Right Choice Mortgage subpoena was not part of the motion to quash and is therefore not properly before the Court.
Although the motion is MOOT as to the subpoena, Mr. Allen requests sanctions for having to file an opposition to the motion to quash after having withdrawn the subpoena. Code of Civil Procedure §1987.2 provides that in making an order on a motion to quash, “the court may in its discretion award the amount of the reasonable expenses incurred in ... opposing the motion, including reasonable attorney's fees, if the court finds the motion was made ... in bad faith or without substantial justification …. ”
Here, continuing to pursue the motion to quash after receiving notice the subpoena was withdrawn was not justified, and, in fact, there does not appear to have been a justification for filing the motion in the first instance, given it was brought well after the time for production had passed. Specifically, the subpoena to KC Lending, Inc. was dated 11/7/22 and set a date for the deposition on 12/29/22. The subpoena was sent on 11/7/22 to the Law Offices of Pavel Kouprine which is the same address that Mr. Parshin lists as his mailing address, and which is his apparent employer. Mr. Parshin then spoke with Mr. Tomlin on 11/14/22 and the subpoena was withdrawn thereafter. The motion was not filed until 2/2/23, long after the time for the deposition had passed. Filing a motion to quash a deposition subpoena after the date for the deposition is not made within a reasonable time as required by CCP §1987.1(a). Further, before filing the motion, Mr. Parshin could have contacted the deposition officer to find out the status of the subpoena given that more than one month had passed since the deposition date. This single phone call would have eliminated the need for the motion.
Critically, Mr. Parshin acknowledges that he was aware month before the defendant filed his opposition that the subpoena to KC Lending had been withdrawn but did not withdraw the motion, thus necessitating preparation of the opposition. Continuing to pursue a pending motion to quash after it becomes clear that it is unjustified may be considered “making” a motion under CCP §1987.2(a). (See, e.g., Cal. Civ. Proc. Code § 1987.2(a); id. § 2023.010(e); Evilsizor v. Sweeney (2014) 230 Cal.App.4th 1304, 1306 [“We . . . hold that a trial court may impose sanctions under Code of Civil Procedure section 1987.2 against a litigant for pursuing a motion to quash that, even though legitimately filed, was rendered unnecessary by a subsequent amendment or withdrawal of the subpoena.”]
Accordingly, Defendant’s request for sanctions is GRANTED. Mr. Pavel Parshin is ordered to pay sanctions in the amount of $3,300 to Defendant Douglas Allen, by and through his attorneys of record, not later than June 15, 2023.
Counsel for Douglas Allen is ordered to give notice of this ruling.