Judge: Frank M. Tavelman, Case: 22BBCP00126, Date: 2023-03-17 Tentative Ruling

Case Number: 22BBCP00126    Hearing Date: March 17, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL RESPONSES TO DEPOSTION SUBPOENA

ALLEGATIONS: 

On April 4, 2022, Pierre Barouch (“Plaintiff”) filed suit against Gal Hagoel (“Hagoel”) and RION Motors, Inc. (“RION”). The Complaint alleges two causes of action: (1) Violation of Corp. Code § 1601 et seq., and (2) Accounting. Plaintiff and Hagoel are each 50% owners of RION. Plaintiff claims that he received no response from Hagoel to a February 25, 2022 letter demanding the production of business documents from RION. On December 22, 2022 Plaintiff served a subpoena for business records on Tronic, Inc. (“Tronic”). Plaintiff believes that Hagoel founded Tronic as a vehicle for fraudulent transfer or to conceal RION assets from Plaintiff. (Kramer Decl. ¶ 9.)

HISTORY: 

On February 2, 2023, Plaintiff filed his Motion to Compel Responses to Deposition Subpoena. No opposition was filed.

RELIEF REQUESTED:

Plaintiff requests the Court order Tronic to produce documents in accordance with the subpoena served upon them. Plaintiff requests the Court grant sanctions against Tronic in the amount of $3,500. Plaintiff requests that the Court set an Order to Show Cause Re Contempt.

ANALYSIS: 

I.                    LEGAL STANDARD 

A party seeking discovery from a nonparty to the action may obtain discovery by oral or written deposition, or deposition subpoena for production of business records.¿ (C.C.P.§ 2020.010.)¿ A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.¿ (C.C.P.§ 2020.020.)¿ 

¿ 

A service of a deposition subpoena shall be effected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.¿ (C.C.P.§ 2020.220(a).)¿ Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.¿ (C.C.P. § 2020.220 (c).)¿ A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.¿ (C.C.P.§ 2020.240.)¿ 

¿ 

A “written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail¿or electronic service¿at an address¿or electronic service address¿specified on the deposition record.”¿ (C.R.C. Rule 3.1346.)¿ 

¿ 

A nonparty deponent may be subject to contempt or monetary sanctions for disobeying a court order (C.C.P. § 2025.480 (k)) or for “flouting” the discovery process by suppressing or destroying evidence (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 476).¿ A nonparty may be punished by contempt (C.C.P.§ 2020.240) or payment of $500.00 (C.C.P.§ 1992).¿ 

II.                 MERITS

Effecting service on a corporation requires delivery of summons and complaint to some person on behalf of the corporation. (C.C.P. § 416.10.)

On December 28, 2022 service was effectuated. Proof of Service attached to Brian A. Kramer’s Declaration shows personal service upon a Dana Fang at 2520 Venture Oaks Way Suite 120 Sacramento, CA. (Kramer Decl. Exh. 2.) However, the moving party does not discuss in any declaration how Dana Fang is related to any nonparty.  The subpoena itself is directed to “Tronic, Inc., a California Corporation c/o Dana Fang (Agent for Service of Process), 2520 Venture Oaks Way Suite 120 Sacramento, CA 95833” (Id.) Plaintiff submits a copy of the California Secretary of State Statement of Information for Tronic listing its agent of service as “ZENBUSINESS INC. (C4548731)” (“Zenbusiness”) (Kramer Decl. Exh. 1.) No address for Zenbusiness is listed on the statement of information. (Id.) Dana Fang does not appear on the statement of information.

The Court is unable to determine if personal service was rendered with the information Plaintiff provides. Plaintiff’s declaration provides no link between Dana Fang and the statement of information which lists Zenbusiness as Tronic’s agent for service of process.  

On February 7, 2023 Plaintiff submitted a second Proof of Service at 11338 Brill Dr., Studio City, CA 91604. On February 3, 2023 the process server left a copy of the deposition subpoena at the Brill Dr. address. The proof of service does not state that multiple attempts were made at personal service, nor that a subsequent mailing occurred. The Court does not find that this service constitutes personal service set forth in C.R.C. Rule 3.1346. Further, this service would not have been affected until after Plaintiff filed their motion and could therefore not possibly comply with C.C.P.§ 2020.220(a)’s requirement that sufficient time be given to produce the documents requested.

Given the above, the Court DENIES the Motion to Compel Responses to Deposition Subpoena.  

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Pierre Barouch’s Motion to Compel Responses to Deposition Subpoena came on regularly for hearing on March 17, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL RESPONSES TO DEPOSITION SUBPOENA IS DENIED. 

IT IS SO ORDERED. 

DATE:  March 17, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles