Judge: Kerry Bensinger, Case: 22SRCV30065, Date: 2023-12-20 Tentative Ruling

Case Number: 22SRCV30065    Hearing Date: December 20, 2023    Dept: 31

Tentative Ruling

Judge Kerry Bensinger, Department 31

HEARING DATE:     December 20, 2023                            TRIAL DATE:  July 8, 2024

CASE:                                Cultivare Group LLC v. 640 South Lake Owner’s Association, et al.

CASE NO.:                 22STCV30065

MOTION TO COMPEL COMPLIANCE WITH SUBPOENA DUCES TECUM

MOVING PARTY:               Defendant 640 South Lake Owner’s Association

RESPONDING PARTY:     No opposition

            This case concerns the purchase of a condominium unit for repair and profit.  On September 14, 2022, Plaintiff, Cultivare Group LLC, filed a Complaint against Defendants, 640 South Lake Owner’s Association (“South Lake”), Don Neill, Sonia Nayak, and Michael Finnegan, alleging that the Defendants breached their fiduciary duty and the CC&Rs by failing to timely process Plaintiff’s application to undertake renovations of the unit and for failing to approve the installation of certain flooring in the unit.  Eventually, Plaintiff installed the floor without approval and was sued by the owner of an adjoining unit for the floor installation. The delay also caused Plaintiff to lose a prospective purchaser and subsequently receive a lower purchase price. 

            On June 5, 2023, Defendant South Lake served a deposition subpoena for the production of business records (the “Subpoena”) on nonparty Cardinal Real Estate, Inc. (“CRE”).  CRE was South Lake’s prior management company.  The Subpoena seeks production of South Lake’s own records which are responsive to some of Plaintiff’s production requests.  CRE did not respond to the Subpoena or South Lake’s meet and confer letter.

            On September 25, 2023, South Lake filed this motion to compel CRE’s compliance with the Subpoena.  South Lake seeks sanctions against CRE.

            South Lake’s motion is procedurally defective.  If a nonparty deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.¿ (Code Civ. Proc. §§ 2024.480, 2025.480.) “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.”¿ (Cal. Rules of Court, rule 3.1346.)¿¿ 

            Here, the proof of service does not show that CRE was served with this motion.  Given this defect, the Court cannot rule on the motion. 

            Accordingly, the motion is CONTINUED to February 1, 2024 at 8:30 a.m.  Defendant 640 South Lake Owner’s Association is to file proof of personal service of this motion on nonparty Cardinal Real Estate, Inc. no later than 5 court days before the hearing.

Dated:   December 20, 2023