Judge: Elaine Lu, Case: 22STCV23364, Date: 2023-02-02 Tentative Ruling

Case Number: 22STCV23364    Hearing Date: February 2, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

            On July 19, 2022, Plaintiff David Sayah, MD, Inc. (“Plaintiff”) filed the instant breach of sublease action against Defendant Ryan Spivak (“Defendant”).  The complaint asserts a single cause of action for Breach of Sublease.

            On September 28, 2022, Plaintiff filed the instant motion to quash Defendant’s subpoena for production of documents to third-party G&L 436 Bedford LLC.  On January 19, 2023, Defendant filed an opposition.  On January 26, 2022, Plaintiff filed a reply.

Legal Standard

Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents.  (CCP § 2020.010(b).) A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records.  (CCP § 2020.020.)  “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .”  (CCP § 2020.410(a).)  The court, upon motion or the court’s own motion, “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.”  (CCP § 1987.1(a).)  In addition, the court may make any other orders 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).) 

Pursuant to Code of Civil Procedure section 2017.010:

Unless otherwise limited by order of the court…any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.  Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.  Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.

(Ibid.)

“‘[F]or discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement’ and ‘[a]dmissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.’  These rules are applied liberally in favor of discovery . . . and (contrary to popular belief) fishing expeditions are permissible in some cases.”  (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653, [internal citations omitted].) 

Discussion

            Plaintiff contends that the Court should quash Defendant’s subpoena to third-party G&L 436 Bedford LLC because the subpoena is an improper use of the discovery process to harass Plaintiff’s landlord.  Plaintiff further contends that the subpoena to third-party G&L 436 Bedford LLC is not warranted under Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216 (“Calcor”).

            In Calcor, the parties’ claim arose out of a contract between the defendant and the plaintiff for the plaintiff to manufacture gun mount systems.  (Calcor, supra, 53 Cal.App.4th at p.219.)  The defendant claimed the plaintiff manufactured gun mounts that did not meet the designated specifications.  (Ibid.)  Therefore, the defendant refused to accept the gun mounts, and contracted with a third party Calcor Space Facility, Inc. to supply them.  (Ibid.)   The plaintiff sued the defendant and in the course of the litigation served a subpoena duces tecum to the third-party Calcor Space Facility, Inc. that included 32 requests for production of documents which was further “expanded by 6 pages of ‘definitions’ and ‘instructions.’ ” (Id. at pp.219-220.)  “Although facially detailed and particularized, the demand, in effect, is very simple. It orders Calcor to produce everything in its possession which has anything to do with gun mounts (including the gun mount assemblies themselves).”  (Id. at p.220.) 

            The Court of Appeal found this request unreasonably burdened Calcor Space Facility, Inc. and was “particularly obnoxious” due to the six pages of definitions and instructions.  (Id. at p.223.)  The Court of Appeal further reasoned that there was a lack of justification for the significant burden imposed on Calcor Space Facility, Inc. with the overbroad subpoena.  (Id. at p.224.)  Thus, the Court of Appeal concluded that “[a]s between parties to litigation and nonparties, the burden of discovery should be placed on the latter only if the former do not possess the material sought to be discovered. An exception to this may exist where a showing is made the material obtained from the party is unreliable and may be subject to impeachment by material in possession of the nonparty.”  (Id. at p.225.) 
            Here, the requests are narrowly tailored and specific unlike those in Calcor.  In addition, there is a justified reason for the discovery sought -- unlike in Calcor.  The subpoena at issue includes only two definitions taking up less than half a page and only four requests that state:

1.      Any and all DOCUMENTS, from January 1, 2017 to September 2, 2022, constituting, referring to, or relating to any consent, permission, or authorization granted by G&L 436 Bedford LLC to David Sayah, MD, Inc. to sublease a portion of 436 North Bedford Drive, Suite 202, Beverly Hills, California 90210 to Ryan Spivak, M.D.

2.      Any and all DOCUMENTS, from January 1, 2017 to September 2, 2022, evidencing, reflecting or referring to any COMMUNICATIONS between G&L 436 Bedford LLC (including any employee, manager, agent or representative thereof), on the one hand, and David Sayah MD, Inc. (including any employee, manager, agent or representative thereof), on the other hand, regarding any request from David Sayah, MD Inc. seeking consent from G&L 436 Bedford, LLC to sublease a portion of 436 N. Bedford Drive, Suite 202, Beverly Hills, CA 90210, to Ryan Spivak, M.D.

3.      A copy of the Master Lease (or Master Leases) between G&L 436 Bedford LLC and David Sayah, MD, Inc. regarding 436 N. Bedford Drive, Suite 202, Beverly Hills, CA 90210, for any and all periods of time that include dates falling within the timeframe February 22, 2019 to February 28, 2025.

4.      All DOCUMENTS evidencing, reflecting, or referring to any sublease (including both draft and executed versions) between David Sayah MD, Inc. and Ryan Spivak, M.D. regarding subleasing a portion of the premises located at 436 N. Bedford Drive, Suite 202, Beverly Hills, California 90210, between January 1, 2017 and September 2, 2022.

(Shakouri Decl. ¶ 3, Exh. A.)

            In relevant part, the sublease at issue contains a clause noting that “[i]n event that the Master Lease [between Plaintiff and G&L 436 Bedford LLC] requires that [Plaintiff] obtain the consent of [G&L 436 Bedford LLC] to any subletting by [Plaintiff], then this Sublease shall not be effective unless [G&L 436 Bedford LLC] gives its consent to this Sublease.”  (Spivak Decl. ¶ 1, Exh. A [Sublease at § 13(e)].)  Defendant states that he contacted the Director of Leasing for Welltower, the management company that administers the building for G&L 436 Bedford LLC who noted that Welltower’s records do not reflect any consent by G&L 436 Bedford LLC for Plaintiff to sublet the Premises to Defendant.  (Spivak Decl. ¶ 4.)  Thus, the requested documents are sought to confirm whether Plaintiff’s Master Lease with G&L 436 Bedford LLC required permission from G&L 436 Bedford LLC to sublease and whether such permission was obtained and whether the Sublease was valid.  This is clearly relevant to the instant action.

            Moreover, while Plaintiff may have produced some of the requested documents such as the Master Lease, Defense Counsel expressly notes that Defendant wishes to independently corroborate Plaintiff’s claims.  (Segal Decl. ¶ 5, Exh. C.)  Defendant’s intention to corroborate the authenticity of the Master Lease is a completely reasonable course of action.  The documents that Defendant seeks are possibly determinative of the complaint, and Plaintiff has incentive to falsify its response.  Thus, Defendant has sufficiently shown good cause for seeking the documents from the third party, and the request is not unreasonable or overbroad.  (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98 [the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance”].)  Accordingly, Plaintiff’s motion to quash is DENIED.

Sanctions

In opposition, Defendant requests sanctions of $7,158.00 against Plaintiff and its counsel of record.

“[I]n 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).)  “An award for sanctions based on bad faith generally requires a subjective element of bad faith.”  (Evilsizor v. Sweeney (2014) 230 Cal.App.4th 1304, 1311.)  “‘Substantial justification’ means ‘that a justification is clearly reasonable because it is well grounded in both law and fact.’ [Citation.]”  (Id. at p.1312.) 
            Here, there is no evidence that the instant motion was brought in bad faith.  Nor was the motion brought without substantial justification.  As noted in the discussion above, Plaintiff did cite authority to support its contention.  Though the Court has found that the subpoena in the instant action is distinguishable from that in Plaintiff’s cited authority, the Court finds that Plaintiff has not brought the instant motion in bad faith.  Accordingly, the request for sanctions is DENIED.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff David Sayah, MD, Inc.’s motion to quash subpoena is DENIED.

Defendant Ryan Spivak’s request for sanctions is DENIED.

The Moving Party is ordered to provide notice and file proof of service of such.

DATED: February 2, 2023                                                     ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court