Judge David A. Rosen, Case 22GDCV00477 2023-01-13 Tentative Ruling

Judge: David A. Rosen, Case: 22GDCV00477, Date: 2023-01-13 Tentative Ruling

Case Number: 22GDCV00477 Hearing Date: January 13, 2023 Dept: E

Hearing Date: 01/13/2023 – 2:00pm
Case No.: 22GDCV00477
Trial Date: 10/23/2023
Case Name: LORRAINE MARIE CARUSO, indiv; v. ALMA VICTORIA SIMPSON, indiv

TENTATIVE RULING – MOTION TO QUASH

Moving Party: Defendant, Alma Victoria Simpson
Responding Party: Plaintiff, Lorraine Marie Caruso

RELIEF REQUESTED¿
Defendant moves to quash Plaintiff’s deposition subpoena for production of business records that sought records from Citibank, N.A.

Procedural
16/21 Day Lapse (CCP §12c and §1005(b): No – Technically this motion is late, and the jurisdictional requirement on timeliness is not met. Under CCP §1005(b), service requires 16 court days’ notice plus an additional two calendar days since the instant motion was served by email. Here, the proof of service states the motion was served by email on December 19, 2021. The proof of service is clearly an error. As this motion will discuss in its analysis, Defendant bases this motion on the fact that on November 22, 2022, Defendant received documents that Defendant’s counsel did not receive until December 16, 2022 when Defendant mailed the documents to Defendant’s counsel. Clearly, this motion could not have been served on December 19, 2021 since the basis for the motion is based on circumstances arising in 2022. The motion was likely served by email on December 19, 2022, the same date on which the motion was filed with the Court. If the Court were to assume service was on December 19, 2022, then 16 court days before the January 13, 2023 hearing would be December 20, 2022. However, 2 calendar days must be added for service via email. Therefore, this motion needed to have been served by email on December 18, 2022. Problematic here is that this motion was likely served by email on December 19, 2022.

Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Ok

Opposition submitted; no Reply submitted.

BACKGROUND
On 08/02/2022, Plaintiff filed a complaint alleging the following causes of action: (1) Breach of Contract, (2) Common Count – Money Lent, and (3) Financial Elder Abuse.

On 09/30/2022, Plaintiff requested entry of default of Defendant, and on 09/30/2022, the Court entered default of Defendant.

On 10/04/2022, Defendant filed an answer.

On 10/19/2022, Defendant moved for an order to set aside the default.

On 11/22/2022, Plaintiff’s counsel served Defendant, but not Defendant’s counsel, a notice to consumer and deposition subpoena for production of business records for Citibank, N.A.’s records.

According to Defendant’s counsel, when Defendant received the notice to consumer in the mail, she was confused and didn’t know what to do and mailed the documents to Defendant’s counsel, and Defendant’s counsel received them on December 16, 2022.

On 12/19/2022, Defendant’s counsel filed this motion.

On 12/30/2022 this Court granted the motion to set aside the default.

MOTION TO QUASH – LEGAL STANDARD
“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.” (CCP §1987.1(a).)

ANALYSIS

Here, Defendant moves to quash the deposition subpoena for production of business records because when the notice to consumer was sent, Defendant was in default and Defendant claims she could not appear to oppose Plaintiff’s deposition subpoena.

Defendant accurately cited Devlin v. Kearney Mesa AMC/Jeep/Renault, Inc., which stated, “The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside, or a default judgment is entered. “ (Devlin v. Kearney Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) However, the case cited by Defendant doesn’t state or support Defendant’s argument that Defendant could not oppose Plaintiff’s deposition subpoena.

While Defendant’s argument as to Devlin appears misplaced, Defendant’s counsel’s argument in its declaration that the Defendant was served with a copy of the subpoena and the Notice to Consumer but not Defendant’s counsel is persuasive.

Yost’s declaration in the moving papers state, “With no notice to me, on November 22, 2022, Mr. Persoff served a Notice to Consumer and Deposition Subpoena for Production of Business Records directly on my client. He did this with full knowledge that my client: (a) was represented by counsel, and (b) was in default and therefore could not seek to narrow the scope or otherwise oppose the deposition subpoena which sought to obtain my client’s personal business records.” (Yost Decl. ¶5.) “My client received the documents in the mail. She was confused and did not know what to do. She mailed the documents to me on Wednesday of last week and I received them on Friday, December 16, 2022.” (Decl. Yost ¶6.)

In Opposition, Plaintiff argues, “The service on Defendant satisfied the statute, and her attorney was not her attorney of record at the time due to her status as being in default, so service on the attorney was not necessary and would not have the required notice to consumer. (The fact that the Motion to Quash was filed late does not prevent the court from hearing it, the lateness is only pertinent if the bank had produced the subpoenaed records, and was faced with a claim by Defendant for having done so. This is explained in the statute providing that the Motion to Quash should be served at least five days before the date for production of records.).” (Pl. Mot. p.3.)

Here, the Court finds Plaintiff’s arguments unavailing as Plaintiff cited no case law or statute to support her argument.

As stated in California Rules of Court Rule 1.21, “Whenever a document is required to be served on a party, the service must be made on the party’s attorney if the party is represented.” (Cal. Rules of Ct. Rule 1.21.)

TENTATIVE RULING
Defendant’s motion to quash is GRANTED without prejudice.

Sanctions

“Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (CCP §1987.2(a).)

Here, moving party did not request sanctions; only Opposition requested sanctions. However, since the Court granted Defendant’s motion, it will not award sanctions against Defendant as requested by Plaintiff.