Judge: David A. Rosen, Case: 22GDCV00477, Date: 2023-02-10 Tentative Ruling

Case Number: 22GDCV00477    Hearing Date: February 10, 2023    Dept: E

Hearing Date: 02/10/2023 – 11:00am
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.

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 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.

On January 13, 2023, the Court heard argument hereon and allowed moving Defendant to file and serve objections to the deposition subpoena and the basis for those objections. Defendant timely filed objections on January 25, 2023. Further, at the January 13, 2023 hearing, the Court noted that Plaintiff could e-file and e-serve, no later than 2/7/2023, any responses to Defendant’s objections. Plaintiff timely served its responses to Defendant’s objections on January 31, 2023.

The Court finds Defendant’s objections of 1/25/23 invalid. Since no valid objections were raised, the motion to quash is denied.

TENTATIVE RULING
Defendant’s motion to quash is DENIED.

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. However, Opposition did request sanctions for $750, because Plaintiff argues the instant motion to quash is clearly without justification and the only basis for it was to delay discovery. Plaintiff’s counsel states that his rate is $375 per hour. Plaintiff’s counsel stated that he spent over two hours in reviewing the motion to quash and in drafting the opposition. Plaintiff’s counsel also estimates an additional two hours expended between the filing of the initial opposition and the conclusion of the hearing. Plaintiff is awarded reasonable sanctions of $750.00, to be paid by Defendant or her counsel of record, jointly and severally, on or before March 3, 2023.