Judge Kerry Bensinger, Case Number: 22STCV06243, Date: 2025-01-29 Tentative Ruling

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

MOVING PARTIES: Defendants Xue Hua Li; Michael Chen; M&L Home LLC; MXL Investment LLC; MIAO Studio LLC

Defendant Xue Hua Li allegedly borrowed almost $5.9 million from plaintiffs Xueping Li & Xuezhi Dong for a joint venture for buying investment real estate in California. Defendants Xue Hua Li and Michael Chen and their affiliated companies bought multiple real properties but failed to repay the loan or pay any profits to plaintiffs. Defendant Xue Hua Li later executed a promissory note acknowledging the debt, but did not make any payments, defaulting on the note.

Plaintiffs sue defendants for the following: (1) breach of contract; (2) breach of contract; (3) breach of fiduciary duty; (4) breach of implied covenant of good faith and fair dealing; (5) misrepresentation; (6) misrepresentation; (7) concealment; (8) false promise; (9) constructive fraud; (10) conversion; (11) common count; (12) common count; (13) common count: (14) violation of the Uniform Voidable Transactions Act; (15) aiding and abetting; and (16) fraudulent transfer.

On August 14, 2024, defendants Xuehua Li; Michael Chen; M&L Home LLC; MXL Investment LLC; and Miao Studio, LLC moved to quash the deposition subpoena for production of business records directed to East West Bank.

As California Code of Civil Procedure section 1987.1, subdivision (a) states, if a subpoena requires the production of books, documents, or other things before a court, the court may quash the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. Also, the court may make any other order to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (Code Civ. Proc., § 1987.1, subd. (a).)

Defendants Xuehua Li; Michael Chen; M&L Home LLC; MXL Investment LLC; and Miao Studio, LLC move to quash the deposition subpoena for production of business records directed to East West Bank dated July 22, 2024. Defendants raise the following arguments: (1) the subpoena seeks bank records of nonparties that are not relevant to the subject matter; (2) the subpoena invades the rights of privacy of third parties; and (3) the subpoenas are overbroad and seek information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.

First, the court can still hear the instant motion even though defendants did not serve the deposition officer. (Code Civ. Proc., § 1985.3, subd. (g).)

Second, defendants did not file a separate statement as required. (California Rules of Court, rule 3.1345(a)(5).) As discussed further below, the court continues this hearing, but for different reasons.

Third, multiple defendants filed the instant motion, rendering the written objections filed and served by defendant Xue Hua Li moot.

Fourth, there is no meet and confer requirement for a motion to quash, and defendants cite none.

The Court continues the hearing to allow Plaintiffs to provide evidence that consumer notice was given. A party can discover confidential personal information of nonparties. (Alch v. Super. Ct. (Time Warner Entertainment Co.) (2008) 165 Cal.App.4th 1412, 1423.) However, the person whose privacy is involved must be given notice of the discovery request and an opportunity to object to the invasion of the person’s privacy prior to disclosure. (Valley Bank of Nevada v. Super. Ct. (Barkett) (1975) 15 Cal.3d 625, 658.) Further, special notice must be given upon subpoenaing the personal records of a consumer. (Code Civ. Proc., § 1985.3(e).) The person whose records are being subpoenaed is entitled to a hearing before delivery of the records. (Code Civ. Proc., § 1985.3(e).) The notice to consumer is generally not filed with the court unless it becomes relevant to the determination of an issue in a law and motion proceeding. (Cal. Rules of Court, rule 3.250(a)(4).) Here, defendants argue the privacy of nonparties such as Baosen Ma require proof of that notice was provided. The proof of notice has not been filed with the court. The Court continues the hearing roughly 45 days for Plaintiffs to provide the court with evidence that notice was given. Plaintiff is to file the notices at least five court days before the hearing.

Based on the foregoing, the motion to quash deposition subpoena is CONTINUED to March 18, 2025 at 8:30 am.

Kerry Bensinger

Judge of the Superior Court