Judge: Frank M. Tavelman, Case: EC059084, Date: 2024-02-16 Tentative Ruling
REQUESTING ORAL ARGUMENT PER CRC 3.1308
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Case Number: EC059084 Hearing Date: March 7, 2024 Dept: A
LOS ANGELES
SUPERIOR COURT
NORTH CENTRAL
DISTRICT - BURBANK
DEPARTMENT A
RULING AFTER HEARING
MARCH 7, 2024
MOTION TO QUASH
Los Angeles Superior Court Case # EC059084
|
MP: |
Floyd J.
Mayweather, Jr. (Non-Party) |
|
RP: |
KH Capital,
LLC (Judgment Creditor) |
THIS IS BEING POSTED ON THE COURT’S TENTATIVE RULING PORTAL
FOR EASE OF ACCESS TO COUNSEL. IT IS A
RULING AFTER ARGUMENT, NOT A TENTATIVE RULING.
NO ADDITIONAL ARGUMENT IS REQUESTED.
PRESENTATION:
The Court received the instant motions filed by Non-Party
Floyd J. Mayweather,
Jr. (Mayweather) on December 26, 2023; the opposition addressing both
motions filed by Judgment Creditor KH Capital, LLC (KH Capital) on December 26,
2023; and the reply filed by Mayweather on February 23, 2024.
RELIEF REQUESTED:
Mayweather seeks: (1) an order quashing service of
application and order for appearance and examination enforcement of judgment to
third person (ORAP), (2) an order quashing service of subpoena duces tecum,
and (3) an order granting attorney’s fees and costs associated with bringing
these motions.
ANALYSIS:
I.
LEGAL
STANDARD
Quash
Subpoena
Code of Civil Procedure (C.C.P.) § 1987.1 authorizes a
trial court to quash a subpoena when necessary. This section provides: “If a
subpoena requires the attendance of a witness or the production of books,
documents, 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.”
Witness
Subpoena and
Residency
California Civil Code §1989 states: “A
witness, including a witness specified in subdivision (b) of Section 1987, is
not obliged to attend as a witness before any court, judge, justice or any
other officer, unless the witness is a resident within the state at the time of
service.” The residency limitation in Civil
Code § 1989 applies not only to witnesses who are obliged to attend as
witnesses in court proceedings, but also to witnesses who are obliged to give
testimony by deposition before deposition officers. (Toyota Motor Corp. v.
Superior Court (2011), 197 Cal. App. 4th 1107.)
A
“residence” is the place where one lives, even temporarily, regardless of the
person’s intent to remain in a particular state. (DeYoung v. DeYoung
(1946) 27 Cal.2d 521, 524.) However, a person’s domicile is the place where one
resides with the intent to remain indefinitely. (Id.)
II.
MERITS
Mayweather moves to quash the ORAP and subpoena duces tecum
filed and served upon him by judgment creditor KH Capital on the grounds that
he was improperly served, and the Court does not have jurisdiction over him.
Arguments & Evidence of the Parties
Mayweather contends KH Capital served an ORAP and subpoena
duces tecum on November 17, 2023, ordering him to appear in Los Angeles
Superior Court on December 29, 2023. On December 19, 2023, KH Capital filed a
proof of service with the Court that included an attached “Affidavit of
Service” indicating personal service was made on Mayweather on November 17,
2023, in Las Vegas, Nevada. (Motion, Exhibit 1.) Mayweather contends the proof
of service is improper and deficient in part because it purported to be a Nevada
affidavit of personal service under a California case caption page. (Newell Decl. ¶ 6.) Mayweather contends that he is a resident of Nevada rather
than California and attaches a Nevada driver’s license with the mailing address
redacted. (12/27/2023 Notice of Errata re: Exhibit “2” to Motion.) Mayweather
further asserts that KH Capital personally serving him in Las Vegas with its
ORAP for an examination to be held in Los Angeles violates Cal. Code Regs. Tit.
22 § 51033. Mayweather argues that, as a Nevada resident, the Los Angeles
Superior Court does not have jurisdiction over him in this matter. Without jurisdiction, the service on him is
ineffective.
In opposition, KH Capital argues it filed the ORAP for
Mayweather on October 24, 2023, (Manasserian Decl. ¶ 4), and was based on the
personal and/or business relationship existing between Mayweather and Judgment
Debtor Shaoul Amar. (Id.) On October 30, 2023, the
Court granted the application and issued an order requiring Mayweather to
appear for examination on December 29, 2023. (Manasserian Decl. ¶ 5, Exh.
1.) On November 15, 2023, KH Capital issued Mayweather a subpoena duces tecum
for personal appearance and production of documents. (Manasserian Decl. ¶ 7, Exh.
2.) On November 17, 2023, a registered process server personally served
Mayweather with the examination order and subpoena at a meet and greet event in
Las Vegas. (Manasserian Decl. ¶ 9.) The process server was photographed with
Mayweather at the event. (Id.) Proof of Service and the photograph are
attached. (Manasserian Decl. Exhs. 3 & 4.)
KH Capital contends that Mayweather is a California
resident and attaches 11 articles stating that Mayweather purchased a residence
in Beverly Hills in September 2017. (Manasserian Decl., Exhs. 16-26.) KH
Capital also alleges that Mayweather has regularly availed himself of the jurisdiction of
California courts and attaches a copy of a petition for letters of special
administration filed in a probate matter (20STPB09888, Estate of Josephine
Harris) This was filed by Mayweather on November 25, 2020 in the Superior
Court of California, County of Los Angeles, Stanley Mosk Courthouse.
(Manasserian Decl. ¶ 30, Exh. 17.) KH Capital also attaches a cross-complaint
filed by Mayweather in 19VECV00170, Zinni Media Concept Limited v. Floyd
Mayweather, Jr., et al. in the Van Nuys Courthouse. (Manasserian Decl. ¶
32, Exh. 18.) The case summary for that action is attached. (Manasserian Decl. Exh.
19.). During argument Mayweather argued
that the Court should not consider any cross-complaint as it was stricken by
the Van Nuys court. However, KH Capital
correctly points out it was only stricken as a result of Mayweather violating
the Van Nuys Court’s discovery orders.
Nonetheless, the cross-complaint, which states that Mayweather is a
resident of Los Angeles County was not verified and therefore will not be
considered by the Court. However, other
aspects of that case are highly relevant to RH Capital.
Given
the relevancy of the Van Nuys Case and RH Capital’s request that the Court
rely, in part, on that case, the Court will take Judicial Notice of
Mayweather’s declaration filed in that case in an effort to overturn a default
judgment. (Evidence Code §452 – a court
may take judicial notice of court records, see also Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743,
752 ("[T]he court may take judicial notice on its own volition.") ). In that declaration, which is dated April 18,
2023, Mayweather declares he is a resident of Los Angeles County. The Court may consider hearsay for limited
reasons related to jurisdiction. In Monroy
v. City of Los Angeles, as it relates to the use of deposition testimony at
trial, a Court is permitted to rely on hearsay to provide foundation to
establish a deponent resides more than 150 miles from the courthouse. Monroy
v. City of Los Angeles 164 Cal. App. 4th 248. The Court likewise believes such hearsay can
be relied upon to support a relatively recent residency claim and a deponent’s
connection to Los Angeles for purposes of testifying at an ORAP. The Court takes Judicial Notice that the Burbank
Courthouse is within Los Angeles County, and that Beverly Hills, CA is within
150 miles of the. Burbank Courthouse.
In
reply, Mayweather first contends that KH Capital’s argument regarding the legal
actions Mayweather was or currently is still involved in are unrelated and
irrelevant to the issue of whether Mayweather is a California resident.
Mayweather requests that the Court strike and/or disregard all references
referring to said legal actions, along with exhibits and live links thereto,
specifically: Opposition: Page 4, Lines 16-23; Page 11, Lines 4-21; and
Supporting Declaration of Armen Manasserian Paragraphs 29, 30, 31, 32, 33,
34. Second, Mayweather contends that the
articles purporting to evidence his 2017 purchase of a home in Beverly Hills
are hearsay and are not proof of his residency in California. While the articles are hearsay, the Court
believes it can, for limited reasons, rely on the hearsay evidence when coupled
with Mayweather’s declaration under penalty of perjury in case 19VECV00170 that
he, as recently as April 18, 2023 is a Los Angeles resident. KH Capital, having met its initial burden, shifts
the burden to Mayweather to refute residency.
They have failed to do so. Mayweather
has provided the Court with an uncertified copy of Tax Assessor Record for 917
N. Crescent Drive listing the owner as Beverly Hills TBE LLC, but the Court
does not find this sufficient to overcome Mayweather’s declaration. The mailing address for Beverly Hills TBE LLC
is Las Vegas, Nevada, the same location in which Mayweather argues is his other
residence. Taking into consideration all
the information provided, the Court does not find the Tax Assessor Record
undermines KH Capital’s position.
Whether
Mayweather is a Proper Subject for Subpoena
As
an initial matter, the Court finds that Mayweather is a proper subject of a
subpoena duces tecum and ORAP.
Upon ex parte application by a judgment creditor who has a
money judgment and proof by the judgment creditor by affidavit or otherwise to
the satisfaction of the proper court that a third person has possession or
control of property in which the judgment debtor has an interest or is indebted
to the judgment debtor in an amount exceeding two hundred fifty dollars ($250),
the court shall make an order directing the third person to appear before the
court, or before a referee appointed by the court, at a time and place
specified in the order, to answer concerning such property or debt. The
affidavit in support of the judgment creditor’s application may be based on the
affiant’s information and belief.
(C.C.P.
§ 708.120(a).)
“Witnesses
may be required to appear and testify before the court or referee in
examination proceeding under this article in the same manner upon trial of an
issue.” (C.C.P. § 708.130(a).) A judgment creditor may subpoena witnesses to
appear and produce documents at a post-judgment examination. (Shrewsbury
Management, Inc. v. Superior Court (2019) 32 Cal. App. 5th 1213, 1224-25.)
Here,
KH Capital contends Mayweather is indebted to the judgment debtor in an amount
exceeding $250 and has knowledge about the physical location of judgment
debtor’s residence and jewelry businesses. Therefore, Mayweather is properly
subject to an examination as a third-party witness and is the proper target of
a subpoena duces tecum. The nature of
the declaration associated with the proof of service does not necessarily
result in defective service, nor has the moving party provided any authority
that such a defect invalidates service.
Furthermore, moving party’s citation to the California Code of Regulation
(C.C.R.) is unhelpful. The California
Code of Regulation are rules that pertain to administrative agencies in
California and not to the Constitutional courts of the state. 22 C.C.R. §51033
relates to Medi-Cal Audit Hearings and other sections cited appear to apply to
the California Franchise Tax Board.
“It is axiomatic that strict compliance with the code's
provisions for service of process is not required. (Ramos v. Homeward
Residential, Inc., 223 Cal. App. 4th 1434, 1443.) “[I]n deciding whether
service was valid, the statutory provisions regarding service of process should
be liberally construed to effectuate service and uphold the jurisdiction of the
court if actual notice has been received by the defendant.” (Gibble v.
Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.) In essence,
substantial compliance with the code’s requirements for service of process is
sufficient. (Id.) The
declaration, albeit under penalty of perjury in Nevada, coupled with
photographs of the service are sufficient to support the validation of the
service.
Whether
Mayweather is a California Resident
Civil
Code § 1989 states, “A witness, including a witness specified in
subdivision (b) of Section 1987, is not obliged to attend as a witness before
any court, judge, justice or any other officer, unless the witness is a
resident within the state at the time of service.” (Civil Code § 1989.)
On
occasions where the term “residence” is employed in statutes, it involves
physical presence in a place without requiring the intent to make it one’s home
which is involved in the domicile concept. (In re Morelli (1970), 11
Cal. App. 3d 819, overruled in part, Cedars-Sinai Imaging Medical Group v.
Superior Court (2000), 83 Cal. App. 4th 1281.) It can mean dwelling in a
place for some continuance of time for business or other purposes. (Id.)
It does not depend on the manner of living which may be housekeeping or
lodging. (Id.) The word “residence” has been held to be equivalent to
“abode” or even “address.” (Id.)
In other words, “[A] person may only have one domicile at a time, but he
may have more than one residence if residence is not construed to mean domicile.” (Burt v. Scarborough (1961) 56 Cal. 2d
817, 822.)
It is clear from Morelli that
the standard for determining residency under Civil Code § 1989 is more relaxed
than a showing of domicile for purposes of jurisdiction. Morelli held
that Civil Code 1989 required only a prima facie showing of evidence that
someone resided in California. (Morelli supra, 11 Cal. App. 3d at 833.) Accordingly, the determining
factor for whether Mayweather can be considered a resident of California is
whether the deposing party has produced sufficient prima facie evidence of his
residence. Here, the Court finds that the evidence offered by KH Capital is
sufficient.
Mayweather
does not dispute that he owns the Beverly Hills home in his reply and instead summits
a copy of his Nevada driver’s license as evidence in contravention of the
articles. Counsel for Mayweather argued
that no declaration was provided by Mayweather as his doing so would concede to
the Court’s jurisdiction; however, they did not cite to any case or statute
supporting this position. The argument that Mayweather is not a resident
of California because he maintains an address in Nevada conflates the concepts
of residency and domicile. For purposes of Civil Code § 1989, the subpoena
section envisages nothing more than an abode that gives the ‘resident’ a
sojourning connection with the area of a type and duration related to the
status of a witness and which makes it not a hardship for him to attend the
legal proceedings at which he is commanded to appear. (Morelli supra,
at 831.)
The
Court further notes that a factor in the consideration of residency is
certainly the burden imposed on a potential witness. The Morelli court
observed that the consideration of residency under Civil Code § 1989 specifically
involved the hardship of the witness in attending the legal proceedings at which
they were commanded to appear. (Morelli supra, at 831.) Further, the statutory
history of Civil Code § 1989 indicates that its primary purpose has long been
to limit the hardship that a witness will experience as a result of being
required to attend a legal proceeding far from the witness's residence. (See Toyota,
supra, 197 Cal.App.4th at 1114, 1117–1118 [describing section 1989's
statutory history].) Given that evidence provided to the Court and discussed
above, the Court finds that Mayweather will suffer no undue hardship in
attending the ORAP.
Accordingly, the Court denies the instant motions to quash.
Sanctions
The Court may award sanctions pursuant to a motion made
under Civil Code § 1987.1 in the amount of reasonable expenses in making the
motion if the Court finds that the motion was made in bad faith or without
substantial justification. (Civ. Code § 1987.2.)
Mayweather’s counsel, Quincy Newell, requests no less than
$5,000.00 towards attorney fees and costs associated with the motions to quash.
Given that the Court has denied the motions to quash, Newell’s request for
attorney fees is denied.
KH Capital’s counsel, Armen Manasserian, requests a total
of $14,065.00 in connection with responding to Mayweather’s motions. Counsel
contends he spent 19.4 hours at a rate of $725/hour. (Manasserian Decl. ¶ 21.)
Here, although the Court denied Mayweather’s motions to
quash, it finds that Mayweather’s motions were not brought in bad faith or
without substantial justification. Therefore, Manasserian’s request for
attorney fees is also denied.
---
RULING:
In the event 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
Floyd Mayweather’s Motions to Quash ORAP and subpoena duces
tecum came on regularly for hearing on March 1, 2024 and was continued on the
Court’s motion to March 5, 2024, with appearances/submissions as noted in the
minute order for said hearing, and the Court took the matter
under submission and now rules as follows:
THE
MOTION TO QUASH ORAP IS DENIED.
THE
MOTION TO QUASH SUBPOENA DUCES TECUM IS DENIED.
EACH
PARTY’S REQUEST FOR ATTORNEY’S FEES IS DENIED.
CLERK
TO GIVE NOTICE TELEPHONICALLY AND VIA MAIL TO ALL PARTIES AS A RESULT OF THE
PENDING ORAP HEARING.