Judge: Elaine W. Mandel, Case: 21SMCV00912, Date: 2022-09-22 Tentative Ruling

Case Number: 21SMCV00912    Hearing Date: September 22, 2022    Dept: P

Tentative Ruling
Neuro Balance Behavioral Management v. TMS & Brain Health, Case No. 21SMCV00912
Hearing Date September 22, 2022
Defendants TMS & Brain Health and Spielberg’s Motion to Compel Compliance with Deposition Subpoena on Non-Party Marshak

Defendant Spielberg planned to form a psychiatric care business with third parties Marshak and Sinel. Spielberg formed TMS; Marshak and Sinel formed plaintiff Neuro Balance. Spielberg promised plaintiff a 50% ownership interest in TMS in exchange for an investment and loan. Plaintiff alleges it transferred the money but did not receive the ownership interest. Plaintiff sues for fraud and breach of contract.

TMS moves to compel Marshak’s compliance with a subpoena to appear for deposition and to produce documents. Marshak filed a declaration in opposition, agreeing to appear for a deposition, but refusing to produce documents. TMS requests the Court to take judicial notice of court filings. The Court grants the unopposed request.

A party seeking discovery from a person who is not a party to the action may obtain discovery by deposition subpoena for production of business records (Code Civ. Proc. § 2020.010). Pursuant to Code of Civil Procedure section 1987.1(a), the court may order compliance with a records subpoena. “[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with subpoenas.” Lee v. Swansboro Country Property Owners Ass’n. (2007) 151 Cal.App.4th 575, 582-583.

A deponent who disobeys a deposition subpoena may be punished for contempt directly, without necessity of a prior court order compelling compliance (Code Civ. Proc. §§ 2020.240, 2025.440(b)), and must pay $500 to the deposing party, plus damages due to the failure to comply (Id., §§ 1992, 2020.240).

Marshak agreed to appear for deposition; the date has been set. The motion is moot as to appearance for deposition. The remaining issue is the document request. The documents requested relate to plaintiff’s investment in TMS and the parties’ agreement involving changes in the operating agreement. These are relevant and discoverable. Marshak does not address this issue.

The motion is MOOT as to the deposition, as the parties agree; and GRANTED as to the document request. No sanctions to be awarded.