Judge: David Sotelo, Case: 19STCV06318, Date: 2022-10-20 Tentative Ruling
Case Number: 19STCV06318 Hearing Date: October 20, 2022 Dept: 40
MOVING PARTY: Specially Appearing
Non-Party Bo Jin (Motion to Quash Order for Appearance and Examination; Motion
to Quash Subpoena); Specially Appearing Non-Party Fang Fang (Motion to Quash
Subpoena Duces Tecum).
Three motions are before the Court:
Specially Appearing Non-Party Bo Jin’s Motion to Quash Order
for Appearance and Examination Issued June 3, 2022 in favor of L.J. Zhu—Assignee
of Record for Judgment Creditor in this action, Home Paradises LLC—as against
Bo Jin in his capacity of CEO for JBFF International, Inc.—i.e., the Judgment
Debtor in this action by way of Default Judgment entered against it on January
15, 2020 in the amount of $54,064.25, with JBFF taking its name from the combination
of the initials of “Jin, Bo” and “Fang, Fang.”
Specially Appearing Non-Party Bo Jin’s Motion to Quash Subpoena
served on Jin as CEO of JBFF International by Assignee of Record L.J. Zhu and
issued by this Court on June 6, 2022; and
Specially Appearing Non-Party Fang Fang’s Motion to Quash
Subpoena Duces Tecum served on her in her individual capacity by Assignee of
Record L.J. Zhu and issued by this Court on June 6, 2022.
The motions are made in response to Orders by this Court
granting requests by Assignee of Record L.J. Zhu for (1) a Subpoena for records
and testimony from Bo Jin as CEO of JBFF International, (2) an Order for
Appearance and Examination of Bo Jin as CEO of JBFF International at a hearing
originally scheduled for July 28, 2022, but now calendared for October 20, 2022,
and (3) a Subpoena Duces Tecum for records and testimony from Fang Fang—Bo Jin’s
wife—in her individual capacity, NOT as any kind of officer of JBFF
International.
All three requests seek documents and testimony to assist
L.J. Zhu in the collection of the outstanding judgment in this action.
After review, the Court DENIES Bo Jin’s Motion to Quash
[containing two Quash motions therein] and GRANTS Fang Fang’s Motion to Quash
as follows:
(1) DENIES Bo Jin’s Motion to Quash Order for Appearance and
Examination because, contrary to Jin’s arguments, the Order is not defective in
naming JBFF International as Judgment Debtor through its CEO, Bo Jin;
(2) DENIES Bo Jin’s Motion to Quash Subpoena because its
sole supporting argument—that the Subpoena served on him by L.J. Zhu fails as a
result of the Motion to Quash the Order for Appearance and Examination prevailing—is
unavailing where this Court has denied the Motion to Quash the Order for
Appearance and Examination; and
(3) GRANTS Fang Fang’s Motion to Quash Subpoena Duces Tecum because,
(1) while the Code of Civil Procedure permits the examination of debtor’s
spouses, Assignee of Record L.J. Zhou has not presented sufficient briefing or
evidence to convince this Court that Fang has control of documents or personal
knowledge as to the collectability of judgment against JBFF International, and
(2) Zhu fails to show how Fang’s community property is tied assets transferred
from JBFF International to avoid collection of judgment in this action.
Legal Standard: Upon motion “reasonably made” by the
judgment debtor or third party, or upon the court’s own motion after giving
counsel notice and an opportunity to be heard, the court may quash the subpoena
entirely, modify it or direct compliance “upon those terms or conditions as the
court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1;
see Lee v. Swansboro Country Property Owners Ass’n (2007) 151 Cal.App.4th
575, 582-83 [motion to quash subpoena filed 7 days before debtor’s examination
that did not raise new issues and gave judgment creditor ample time to respond
was timely and ‘reasonably made’ under § 1987.1].)
Analysis: Non-Party Bo Jin makes this July 22, 2022
Motion to Quash in part seeking an Order quashing the June 3, 2022 Order for
Appearance and Examination made on him as CEO of JBFF International, i.e., the
judgment debtor in this action.
The Motion is based on the grounds that the Order for
Appearance and Examination is defective because the Order “failed to name
correct debtor to attend the hearing” insofar as the Order commands “Bo Jin,
CEO of JBFF International Inc.” to make an appearance as “the judgment debtor”
in this action where Bo Jin himself is not personally a judgment debtor
thereto. (Jin Mot., 3:12-22.)
This position is disingenuous. An Order for Appearance and
Examination can be made on the judgment debtor or on a third party who either
has possession or control of property belonging to the judgment debtor or the
defendant, or on a third-party person who owes the judgment debtor or defendant
more than $250. (See Civil form AT-138/EJ-125, Application and Order for
Appearance and Examination, ¶ 6.) Here, the Order was not made against Bo Jin
individually, but rather as CEO of JBFF International, and where JBFF itself,
being a noncorporeal being, must accept and manage production demands through
its representatives.
Further, if an order for examination designates a specific
individual to be examined, that person must appear, and such a person may be
accompanied by one or more officers, directors, managing agents or other
persons familiar with the entity’s property and debts. (Code Civ. Proc., §
708.150, subd. (d).) Bo Jin has been ordered to appear for examination as CEO
of JBFF International. He must comply with such Order.
Legal Standard: A motion to quash a deposition
subpoena or deposition notice is used to strike, modify, or impose conditions
on a subpoena or notice that is procedurally or substantively defective. (See
Code Civ. Proc., §§ 1987.1, subd. (a), 2025.410, subd. (c); see, e.g., Catholic
Mut. Relief Soc’y v. Superior Court (2007) 42 Cal.4th 358, 365 [motion
based on ground that subpoenas sought information outside scope of discovery]; John
B. v. Superior Court (2006) 38 Cal.4th 1177, 1186 [motion based in part on
ground that subpoenas violated right of privacy]; McClatchy Newspapers v.
Superior Court (1945) 26 Cal.2d 386, 391 [motion based on ground that
subpoenas were unreasonable and oppressive]; Far W. S&L Assn. v.
McLaughlin (1988) 201 Cal.App.3d 67, 71 [motion based on ground that
subpoena was not properly served]; City of Los Angeles v. Superior Court
(2003) 111 Cal.App.4th 883, 888 [procedural remedy for a defective subpoena is
generally a motion to quash under § 1987.1].) A motion to quash a subpoena for
the production of documents may be made by:
(1) Any party to the action (Code Civ. Proc., 1987.1, subd.
(b)(1));
(2) The subpoenaed witness (e.g., a custodian of another
person’s personal records) (Code Civ. Proc., § 1987.1, subd. (b)(2); Monarch
Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1287-88);
(3) A person (party or nonparty) whose consumer,
governmental, or employment information or records have been subpoenaed (see
Code Civ. Proc., § 1985.3, subd. (g) [party consumer], 1985.4 [state or
local-agency employee or any other natural person], 1985.6, subd. (f)(1)
[employee], 1987.1, subd. (b)(3) [consumer], 1987.1, subd. (b)(4) [employee];
see also Code Civ. Proc., §§ 1985.3, subd. (g), ¶ 2, 1985.6, subd. (f)(2)
[nonparty consumer can make written objections instead of motion to quash]);
(4) A person whose “personally identifying information”
within the meaning of Civ. Code § 1798.79.8, subd, (b), subpoenaed in
connection with an action involving that person’s exercise of free-speech
rights; and
(5) The Court, on its own motion, after giving the parties
notice and the opportunity to be heard (Code Civ. Proc., § 1987.1, subd. (a).)
Analysis: Non-Party Bo Jin makes this July 22, 2022
Motion to Quash in part seeking an Order quashing the Subpoena served on him by
Assignee of Record L.J. Zhu and requesting production of documents and
testimony related to the financial condition of judgment debtor JBFF
International. (See Jin Mot., 3:23-4:16; see also Jin Mot., Ex. A [including,
among other things, copy of Subpoena served on Bo Jin as CEO of JBFF
International].)
Bo Jin is the subpoenaed witness and thus entitled to make
this Motion to Quash. (See Code Civ. Proc., § 1987.1, subd. (b)(2); see also
Jin Mot., Ex. A [including, among other things, copy of Subpoena served on Bo
Jin as CEO of JBFF International].)
Moving to the merits, Jin’s Motion is entirely premised on
the faulty argument that this “Court should quash ZHU’s defective subpoena
because the Subpoena was issued relying on a defective ORAP,” i.e., Order for
Appearance and Examination, for which reason the subpoena “is also defective.”
(Mot., 4:14-16.)
As the Court has found that the Order for Appearance and
Examination was properly made on Bo Jin as CEO of JBFF International, this domino
effect argument by Bo Jin also necessarily fails.
Analysis: Non-Party Fang Fang makes her July 21, 2022
Motion to Quash seeking an Order quashing the Subpoena Duces Tecum served on
Fang Fang by Assignee of Record L.J. Zhu and requesting production of documents
and testimony related to the financial condition of judgment debtor JBFF
International. (See Fang Mot., 3:13-7:4; see also Fang Mot., Ex. A [including,
among other things, copy of Subpoena Duces Tecum served on Fang Fang
individually].)
Fang is the subpoenaed witness and thus entitled to make
this Motion to Quash. (See Code Civ. Proc., § 1987.1, subd. (b)(2); see also
Fang Mot., Ex. A [including, among other things, copy of Subpoena Duces Tecum
served on Fang Fang individually].)
Moving to the merits of the Motion, Fang presents three
arguments in favor of quashing the Subpoena Duces Tecum served on her: the
subpoena is vague, ambiguous and burdensome because (1) a review of the Subpoena
informs Fang that she does not possession of any documents listed in the
attachments to the Subpoena, (2) Fang does not believe the subpoena will lead
to relevant or admissible evidence given her lack of personal knowledge or
custody of documents responsive to the Subpoena, and (3) the Subpoena and
supporting affidavit are vague, ambiguous and burdensome and do not support
compelling testimony or document production from Fang. (Mot., 3:13-5:8, 5:9-24,
5:25-7:4.)
A third person (e.g., a nondebtor spouse) may be ordered to
appear for examination upon the judgment creditor’s application showing to the
court’s satisfaction that the third person is in possession or control of
property in which the judgment debtor has an interest or is indebted to the
debtor for more than $250. (Code Civ. Proc., § 708.120.)
On Opposition, Assignee of Record L.J. Zhu conclusorily
argues—without providing any supporting evidence—that he believes that Fang
Fang has control of JBFF International documents because Zhu is “informed and
believe[s] that spouse of the owner of the debtor has knowledge of, and
possibly possession of assets that belong to the debtor, including community
property, and may be called for a 3rd Party Judgment-Debtor Exam pursuant to
§CCP 708.120 and particularly §CCP 708.130.”
The Court finds Zhu’s arguments are insufficient to sustain
the subpoena served on Fang. First, Zhu’s argument is wholly unsupported by any
evidence and is stated as a conclusion of fact without evidentiary facts
establishing the reasons why Zhu believes and is informed that Fang has control
of documents or knowledge of facts relevant to JBFF International’s financial
state, other than Fang’s marital relationship with Bo Jin. Second, to the
extent that L.J. Zhu points to community property, the Court notes (1) that the
Judgment in this action was entered against JBFF International, NOT Bo Jin in
his personal capacity and (2) no evidentiary facts have been provided by Zhu
establishing a transfer of assets from JBFF International to Fang.
Bo Jin’s Motion to Quash Order for Appearance and
Examination Issued June 3, 2022 is DENIED because, contrary to Jin’s arguments,
the Order is not defective in naming JBFF International as Judgment Debtor
through its CEO, Bo Jin.
Bo Jin’s Motion to Quash Subpoena issued June 6, 2022 is
DENIED because its sole supporting argument—that the Subpoena served on him by
L.J. Zhu fails because the Motion to Quash the Order for Appearance and
Examination prevailing—is unavailing where this Court has denied the Motion to
Quash the Order for Appearance and Examination.
Fang Fang’s Motion to Quash Subpoena Duces Tecum issued June
6, 2022 is GRANTED because, (1) while the Code of Civil Procedure permits the
examination of debtor’s spouses, Assignee of Record L.J. Zhou has not presented
sufficient briefing or evidence to convince this Court that Fang has control of
documents or personal knowledge as to the collectability of judgment against
JBFF International, and (2) Zhu fails to show how Fang’s community property is
tied assets transferred from JBFF International to avoid collection of judgment
in this action.