Judge: Jon R. Takasugi, Case: 21STCV28098, Date: 2023-02-16 Tentative Ruling

Case Number: 21STCV28098    Hearing Date: February 16, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion to compel is GRANTED. Deponents are sanctioned, jointly and severally with counsel, $700.00 each. ($350/hr x 2 hr.) 

On 7/30/2021, Plaintiff Inferno California, Inc. (Plaintiff) filed suit against New City Releasing, Inc. and Alan B. Bursteen (collectively, Defendants), alleging: (1) fraud in the inducement; and (2) breach of contract.

            Now, Plaintiff moves to compel the deposition of Nile Niami (Niami) on behalf of Juliami Art Ventures, LLC (Juliami) and Person Most Qualified (PMQ) for Juliami (collectively, the Deponents). Plaintiff also seeks monetary sanctions.

Discussion

            Plaintiff argues that good cause exists to depose the Deponents, Deponents have failed to appear for their depositions, and thus an order compelling them to appear is necessary.

            In opposition, Deponents argues that this motion is untimely and barred by a jurisdictional deadline, and that the deposition subpoenas are defective.

            The Court disagrees with Deponents.

First, when a non-party fails to produce subpoenaed documents or attend a deposition, the issuing party must file a motion to compel “no later than 60 days after the completion of the record of the deposition.” (CCP § 2025.480(b).) Because it’s a jurisdictional deadline, failing to timely move to compel waives any right to compel compliance with a subpoena. (See Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410.) (statutory time limits for motions to compel are “‘jurisdictional’ in the sense that [they] render[] the court without authority to rule on motions to compel other than to deny them.”)

            Here, Deponents submitted evidence that Plaintiff issued subpoenas on September 12, 2022 with a deposition date of September 29, 2022. Deponents argue that because no documents were produced and the deponent didn’t appear, the deposition record was complete sixty days later on November 28, 2022. So any motion to compel had to be filed by November 28. Plaintiff didn’t file its motion to compel until January 19, 2023.

While Plaintiff  re-served the subpoenas in December 2022, Deponents argue that “[t]he December 2022 subpoenas were the exact same subpoenas as the September 2022 subpoenas. They were merely served again with the old date crossed out—they were not reissued, amended, or new.” (Opp., 5: 2-4.)

            However, in reply, Plaintiff argues that the 60-day deadline did not begin to run because there was a bankruptcy stay in effect starting September 28, 2022. Moreover, Plaintiff contends that there was no record of the deposition because the subpoena was for a personal appearance at a deposition and thus required a deposition to take place for there to be a record of deposition: “There was no record prepared of the September 29, 2022 deposition, because no one appeared due to the bankruptcy stay and no record was prepared, so the time to compel did not begin to run.” (Reply, 2: 21-23.)

            The Court agrees with Plaintiff that the 60-day timeline did not expire.    

            In addition to the timeliness issue, Deponents also argue that subpoenas are substantively and procedurally defective. First, subpoenas must be served “by personal delivery” to the deponent. (CCP § 2020.220(a)(b).) Here, Niami was not personally served with any of the subpoenas. Instead, all the subpoenas were personally delivered to an Juliami’s agent for service of process in Glendale.

Second, no notice to consumer was made provided or attached to the Juliami subpoenas. The document requests attached to the subpoena seek a wide swath of documents that include over ten years of Niami’s financial documents, personal communications, and private business communications. In reply, Plaintiff contends that the documents sought concern business records, not consumer records, and thus no such notice was required.

Third, the December 2022 subpoenas don’t have a proper proof of service to establish that they were correctly served: “Indeed, two of the proofs were unquestionably photocopied— so there is no evidence that at least two of the four subpoenas were served. Because the proofs don’t state what documents they served, it’s impossible to tell which ones were allegedly served. The proofs for all of the December 2022 subpoenas also don’t have a decipherable signature—in fact, it’s impossible to tell who signed them because the identity of the person serving the documents isn’t stated.” (Opp., 5:24-6:2.) However, it is worth noting that Deponents do not actually dispute having received service of the subpoenas.

Fourth, the Juliami subpoenas names Niami as the PMQ. An entity has the right to designate “those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Maldonado v. Superior Court (2002) 94 Cal. App. 4th 1390, 1395; see CCP § 2025.230.) As a such, Plaintiff may not unilaterally appoint Niami as Juliami’s PMQ.

However, CCP section 2025.410 is clear that:

(a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.

Here, rather than raise any of these objections to Plaintiff’s notices, Deponents merely ignored the notices and failed to appear. As such, per CCP section 2025.410, subdivision (a), Deponents have waived all errors or irregularities by failing to serve written objections.

Plaintiff seeks the production of documents related to the underlying business loan at issue in this case and the business activities surrounding it. As such, Plaintiff has set forth good cause to compel the depositions sought.

Based on the foregoing, Plaintiff’s motion to compel is granted. Deponents are sanctioned, jointly and severally with counsel, $700.00 each. ($350/hr x 2 hr.) 

It is so ordered.

Dated:  February    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.