Judge Gary Y. Tanaka, Case YC072813 2023-01-12 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Thursday, January 12, 2023

Department B Calendar No. 6

1. Carlos Esqueda, et al.’s Motion for an Order Compelling Production of Financial Records

Carlos Esqueda, et al.’s Motion for an Order Compelling Production of Financial Records is granted.

Plaintiffs filed this action on April 16, 2018. This is an action related to alleged construction defects from services provided by Defendants to Plaintiffs on a home improvement project. The matter proceeded to arbitration and Plaintiffs prevailed at arbitration. The arbitration award was confirmed, and judgment was entered on December 10, 2020.

Code Civ. Proc., § 708.110(a) states: “The judgment creditor may apply to the proper court for an order requiring the judgment debtor to appear before the court, or before a referee appointed by the court, at a time and place specified in the order, to furnish information to aid in enforcement of the money judgment.”

Code Civ. Proc., § 708.130(a) states: “Witnesses may be required to appear and testify before the court or referee in an examination proceeding under this article in the same manner as upon the trial of an issue.” CCP § 708.130 permits the issuance of a subpoena duces tecum to a witness in connection with a judgment debtor examination under CCP § 708.110. Shrewsbury Management, Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1222.

“(a) General rule.--Any person who is engaged in the business of preparing, or providing services in connection with the preparation of, returns of the tax imposed by chapter 1, or any person who for compensation prepares any such return for any other person, and who knowingly or recklessly--

(1) discloses any information furnished to him for, or in connection with, the preparation of any such return, or

(2) uses any such information for any purpose other than to prepare, or assist in preparing, any such return, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000 ($100,000 in the case of a disclosure or use to which section 6713(b) applies), or imprisoned not more than 1 year, or both, together with the costs of prosecution.

(1) Disclosure.--Subsection (a) shall not apply to a disclosure of information if such disclosure is made--

Here, Judgment Creditor issued a subpoena duces tecum to Udi Reuven Gannot. (Ex. A). However, Gannot failed to produce all documents sought in the subpoena stating that certain documents were under the control of the accounting firm Smaldino Lutz Curtis & Associates AAC. Thus, the Court issued an Order for Appearance of Third-Person Judgment Debtor Examination of Douglas Smaldino on behalf of Smaldino Lutz Curtis & Associates AAC (“Smaldino”). Thereafter, Judgment Creditor indicates that a “substantially similar” subpoena was issued to Douglas Smaldino on behalf of Smaldino Lutz Curtis & Associates AAC. (Decl., Nicholas W. Dahl, ¶ 18.) Judgment Creditor did not attach this “substantially similar” subpoena. In any event, Judgment Creditor did provide facts indicating that counsel for Smaldino would be willing to produce the subject documents so long as a Court order was obtained. (Id., at Ex. D.)

No written opposition was filed to the instant motion. Thus, it appears that Smaldino is still complying with its statement that it will produce the documents following the issuance of a Court order.

Thus, the Motion for an Order Compelling the Production of Financial Records Pursuant to 26 U.S.C. § 7216 is granted.