Judge Curtis A. Kin, Case Number: 24STCP00546, Date: 2024-10-03 Tentative Ruling

Judge: Curtis A. Kin, Case: 24STCP00546, Date: 2024-10-03 Tentative Ruling

Case Number: 24STCP00546 Hearing Date: October 3, 2024 Dept: 86

MOTION TO QUASH OR MODIFY SUBPOENA

Date: 10/1/24 (1:30 PM)

Case: Christian Arturo Llamas Corona v. Claudia Llamas et al. (24STCP00546)

TENTATIVE RULING:

Plaintiff Christian Arturo Llamas Corona’s Motion to Quash or Modify Subpoena is DENIED.

Plaintiff moves to quash or modify the subpoena that defendants Claudia Llamas and Jessica Llamas issued to Corporate Kit Supply (“CKS”). Defendants seek production of the following documents:

1. All documents relating to Yellow Owl Properties Managements, Inc.

2. All purchase orders for products relating to Yellow Owl Properties Managements, Inc.

3. All invoices for purchases of products relating to Yellow Owl Properties Managements, Inc.

4. All receipts for purchases of products relating to Yellow Owl Properties Managements, Inc.

5. All purchase confirmations for products relating to Yellow Owl Properties Managements, Inc.

6. All communications regarding purchases of products relating to Yellow Owl Properties Managements, Inc.

7. All records of requests for products bearing the name “Yellow Owl Properties Managements, Inc”

8. All documents regarding products bearing the name “Yellow Owl Properties Managements, Inc”

9. All documents reflecting mailing or delivery information for purchases of products relating to Yellow Owl Properties Managements, Inc.

10. All documents relating to orders placed by CHRISTIAN LLAMAS.

11. All documents exchanged with CHRISTIAN LLAMAS.

12. All communications with CHRISTIAN LLAMAS.

13. All documents relating to orders placed by Oliver Cisneros.

14. All documents exchanged with Oliver Cisneros.

15. All communications with Oliver Cisneros.

16. All documents relating to orders placed by Emilio Cordova Lopez.

17. All documents exchanged with Emilio Cordova Lopez.

18. All communications with Emilio Cordova Lopez.

(Biggins Decl. ¶ 1 & Ex. 1.)

Before addressing plaintiff’s arguments concerning the subpoena, it is important to discuss the context in which defendants issued the challenged subpoena. Plaintiff alleges that he is the sole shareholder and rightful owner of Yellow Owl Properties Managements, Inc. (“Yellow Owl”). (Compl. ¶¶ 1, 6.) Plaintiff seeks a determination that defendants are not officers and directors of Yellow Owl. (Compl. ¶ 7; Prayer ¶ 1.) In support of plaintiff’s contention that he is the sole shareholder of Yellow Owl, plaintiff relies on a black and white stock certificate issued to him. (Gregory Decl. ¶¶ 2-4 & Exs. 1-3 [response to Form Interrogatory No. 17.1 with respect to Request for Admission No. 2 and Stock Certificate on page 42].) The certificate bears a copyright notice from “CORPORATE KIT SUPPLY CKS 2.” (Gregory Decl. ¶ 4 & Ex. 3 at 42.) Defendants sought to inspect the stock certificate presented by plaintiff, but, according to plaintiff’s counsel, neither plaintiff nor his counsel have the original or color copy of the certificate. (Burstein Decl. ¶ 2 & Ex. 1.) Defendants subsequently issued a subpoena to CKS seeking the documents listed above.

There can be no serious doubt the subpoena to CKS seeks relevant documents. Because plaintiff contends that he is sole shareholder and owner of Yellow Owl, relies on a stock certificate purportedly issued by CKS (Gregory Decl. ¶¶ 2-4 & Exs. 1-3), but does not have the original or color copy of that certificate (Burstein Decl. ¶ 2 & Ex. 1), defendants has good cause to seek CKS records that may bear on the authenticity of the certificate. (See CCP § 2017.010 [discovery may relate to claim of party]; Compl. ¶¶ 1, 6.) The requested documents are reasonably calculated toward this goal.

Notwithstanding the clear relevance of the documents sought by the subpoena, plaintiff raises a series of arguments as to why the subpoena ought to be quashed nonetheless.

Plaintiff first asserts that the subpoena was not served on a third party whose records are sought. CCP § 1985.3 requires notice to be served on a “consumer” whose “personal records” are being sought from the “witness” named on the subpoena. (CCP § 1985.3(b), (e).) Here, plaintiff contends that, under § 1985.3, defendants were required to have served Oliver Cisneros, because he is an accountant and because the subpoena seeks his personal records and records of his clients. (Mtn. at 2:8-17, citing Biggins Decl. ¶ 3.) Plaintiff’s argument depends on a complete misread of § 1985.3. Section 1985.3 defines a “consumer” as an individual who has transacted with or used the services of a “witness.” (CCP § 1985.3(a)(2).) “[W]itness” for purposes of § 1985.3 is a list of professionals, including an accountant, and types of professional entities. (CCP § 1985.3(a).) “Personal records” are defined as books, documents, or other writings pertaining to a consumer which are maintained by any such witness. (CCP § 1985.3(a).)

While it may be true that Cisneros is an accountant, that does not matter for purposes of applying § 1985.3, because Cisneros is not a “witness” under the subpoena. The subpoenaed witness here is CKS. CKS is not an accountant or any of the types of professions or entities listed in CCP § 1985.3(a)(1). Therefore, insofar as Cisneros might be a “consumer” of CKS, he has not used the services of a “witness” as defined in CCP § 1985.3(a). Accordingly, § 1985.3 has no application here, and no notice was required to be given to Cisneros.

Second, plaintiff argues that the subpoena improperly seeks the products, as opposed to the business records, of CKS. “Business records” refer to “an item, collection, or grouping of information about a business entity,” including journals and books of account. (Urban Pacific Equities Corp. v. Superior Court (1997) 59 Cal.App.4th 688, 693.) While a business records subpoena cannot be used to obtain a product that the business sells (see Urban Pacific, 59 Cal.App.4th at 693 [business records subpoena cannot be used to obtain deposition transcript from court reporter]), what defendants here seek are “purchase orders for products” (No. 2), “invoices for purchases of products” (No. 3), “receipts for purchases of products” (No. 4), “purchase confirmations for products” (No. 5), “communications regarding purchases of products” (No. 6), “records of requests for products” (No. 7), “documents regarding products” (No. 8), and “documents regarding mailing or delivery information for purchases of products” (No. 9). Defendants do not seek to subpoena CKS’s products as an end run around having to pay for them. Rather, defendants seek business records concerning CKS’s purported issuance of Yellow Owl shares to plaintiff.

In Reply, plaintiff further argues that Request No. 1, which seeks all documents relating to Yellow Owl, necessarily includes CKS’s corporate kit prepared for Yellow Owl, which, in plaintiff’s view, was a product of the company. While it is true that Request No. 1 seeks records related to the corporate kit presumably sold to Yellow Owl, which might include a copy of the kit actually sold, the request is still properly viewed as seeking CKS’s business records relating to Yellow Owl and does not implicate the concerns of improperly using a subpoena to obtain CKS’s product without having to pay for it. (See Urban Pacific, 59 Cal.App.4th at 693.)

Third, plaintiff contends that the requests in the subpoena are burdensome. The Court disagrees. The instant subpoena contains 18 requests and 2 definitions, one defining “DOCUMENT” and the other defining “CHRISTIAN LLAMAS” to refer to plaintiff. (Biggins Decl. ¶ 1 & Att. 3 to Ex. 1.) By contrast, the subpoena in Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, cited by plaintiff, contained 32 requests, expanded by three pages of definitions and another three pages of instructions, which the Court of Appeal determined to be inadequately particular. (Calcor, 53 Cal.App.4th at 219-20, 223.)

In Reply, plaintiff raises a new argument that Request Nos. 10-18 are overbroad because they may encompass CKS records relating to more than just Yellow Owl. The Court is unpersuaded by plaintiff’s newly raised argument. Request Nos. 10-18 encompass documents and communications between CKS, on the one hand, and plaintiff Christian Llamas, Emilio Cordova Lopez, and Oliver Cisneros, on the other hand. Defendants contend that the categories of documents sought by the subpoena are intended to capture “records related to orders placed by Plaintiff, records relating to orders placed via an alias used by Plaintiff, and records related to orders placed by Oliver Cisneros—the original statutory agent for Yellow Owl.” (Opp. at 3.) Plaintiff does not meaningfully argue otherwise. That Request Nos. 10-18 could theoretically reach CKS records not relating to Yellow Owl does not render the requests impermissibly overbroad or unduly burdensome (to the extent plaintiff’s new argument is actually meant to imply the scope of the requests renders them burdensome). Indeed, plaintiff presents no evidence that Request Nos. 10-18 will actually capture and cause CKS to produce documents and records that are not relevant to the issues in this litigation.

Fourth, plaintiff contends that the subpoena was untimely served. A business records subpoena “shall command compliance in accordance with Section 2020.430 on a date that is no earlier than 20 days after the issuance, or 15 days after the service, of the deposition subpoena, whichever date is later.” (CCP § 2020.410(c).) The subpoena was issued on 7/25/24 and personally served on CKS on 7/30/24. (Biggins Decl. ¶ 1 & Ex. 1; Gregory Decl. ¶ 7 & Ex. 6.) The date of compliance on the subpoena was 8/15/24, 21 days after issuance and 16 days after service on CKS. (Biggins Decl. ¶ 1 & Ex. 1.) The issuance and service of the subpoena on CKS was timely.

Plaintiff appears to contend that the timing requirements of Section 2020.430 relate to service upon plaintiff. The timing requirements set forth in Section 2020.430(c) refer to service of the deposition subpoena and the custodian of records or other person qualified to certify the records. Plaintiff cites no authority for the proposition that these timing requirements should apply to service upon him in addition to the deponent. In any event, even if the deadlines set forth in CCP § 2020.410(c) applied to service on an opposing party, as opposed to service on a subpoenaed party, plaintiff was served with notice of the subpoena on 7/26/24, which was more than 15 days (i.e., 20 to be exact) before the 8/15/24 date of compliance. (Gregory Decl. ¶ 6 & Ex. 5.) Even adding two court days for electronic service pursuant to CCP § 1010.6(a)(3)(B), plaintiff was still served more than 15 days before the 8/15/24 date of compliance.

Because plaintiff fails to demonstrate any basis on which to quash the subpoena, the motion is DENIED. Non-party deponent Corporate Kit Supply is ordered to comply with the subpoena dated 7/25/24 by no later than 10/18/24.