Judge Helen Zukin, Case 21SMCV01430 2023-02-21 Tentative Ruling

Judge: Helen Zukin, Case: 21SMCV01430, Date: 2023-02-21 Tentative Ruling

Case Number: 21SMCV01430 Hearing Date: February 21, 2023 Dept: 207

Background

Plaintiffs Gregory Mancuso and Rainier AG (collectively “Plaintiffs”) bring this action against several Defendants, including Defendant Consul Group re Dos Mil Vientiuno S.R.L. (“Consul” or “Defendant”). Plaintiff Rainier AG is a brokerage company and Gregory Mancuso is a corporate compliance office for Rainier AG. The dispute between the parties stems from a Brokerage Agreement entered into between Rainier AG and Consul in October 2018. Plaintiffs allege Consul began a pattern of unusual and suspicious trading behavior shortly after entering in the Brokerage Agreement. Plaintiff alleges it conducted an investigation which revealed stock manipulation and conversion by Defendants. Consul previously brought an action in federal court alleging causes of action stemming from the relationship between Consul and Rainier AG. Plaintiffs allege this federal action was frivolous.

Plaintiffs now move to quash two subpoenas for business records propounded by Defendant on third party banking institutions. Defendant opposes Plaintiff’s motion.

Legal Standard

“If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court,” the court may “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.” (C.C.P. § 1987.1(a).) The court may also make orders “to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”¿(Ibid.)

Analysis

Plaintiffs move to quash two subpoenas for the production of business records propounded on third parties Pershing LLC and Bank of NY Mellon Corp. Plaintiffs assert a number of bases to quash the subpoenas, including for defective service of the subpoenas themselves as well as defective service of the accompanying Notices to Consumer on Lidia Zinchenko. The parties appear to agree Ms. Zinchenko could be properly served with such notices by mail at her last known address. Defendant claims it satisfied this requirement by serving Ms. Zinchenko at 2627 S. Ocean Boulevard, Highland Beach, Florida. Plaintiffs claim Ms. Zinchenko could not have properly been served at this address as the Court has previously acknowledged she does not currently reside at that address and has moved to the Russian Federation.

Plaintiffs are correct that the Court has previously considered this point in ruling on a motion brought by Ms. Zinchenko to quash service of summons on her at the Florida address. In connection with that motion, Ms. Zinchenko submitted a declaration stating she did not currently reside at the Florida address and had relocated to the Russian Federation. However, neither Ms. Zinchenko nor her counsel have provided Defendant with her address in the Russian Federation. Ms. Zinchenko cannot refuse to provide her current address and complain when she is not served by mail there. Defendant has presented evidence that its skip traces and searches have revealed the Florida address is the last known address for Ms. Zinchenko. Ms. Zinchenko does not deny that she previously lived there, rather she only claimed she does not live there currently. The Russian Federation is not an address at which Ms. Zinchenko can be served. On the evidence before it, the Court finds Defendant could properly serve Ms. Zinchenko with a Notice to Consumer at her last known address in Florida.

However, this does not mean Defendant has properly effectuated service of the subpoenas and the related Notices to Consumer. As Plaintiffs point out, the proofs of service attached to the record subpoenas themselves are completely blank and unsigned. (Exs. 7 & 8 to Micheli Decl.) The proofs of service of the Notices to Consumer are similarly unsigned. (Ex. A to Allen Decl.) Defendant offers no response to this issue in its opposition to Plaintiffs’ motion. Under Code Civ. Proc. §§ 1013(a) and 2015.5, proofs of service must be signed under penalty of perjury. As the proofs of service here are all unsigned, they are insufficient to demonstrate proper service of these subpoenas and notices have been effectuated by Defendant. As the Court does not have any evidence before it showing the subpoenas in question were properly served as required, Plaintiffs’ motion to quash those two subpoenas is GRANTED.

Defendant’s opposition discusses the propriety of a third subpoena it propounded on Bank of America. As this subpoena is not the subject of Plaintiffs’ motion to quash, the subpoena to Bank of America is not relevant to this motion and the Court offers no opinion as to its validity.

Conclusion

Plaintiffs’ motion to quash is GRANTED.