Judge Kerry Bensinger, Case Number: 22STCV30065, Date: 2024-02-01 Tentative Ruling

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.

The motion was heard on December 20, 2023. The court found there was no evidence that CRE had been personally served with this motion. As such, the court continued the motion to allow South Lake to cure this procedural effect.

The court notes South Lake has filed proof of personal service of this motion on CRE.

A party is entitled to obtain discovery regarding any non-privileged matter that is relevant to the subject matter of the action. (Code of Civil Procedure § 2017.010.) A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.¿ (Code Civ. Proc., § 2020.010.) ¿¿¿If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an 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. In addition, the court may make any other order as may be appropriate 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).)¿“A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . . .”¿ (Code Civ. Proc., § 2020.410, subd. (a).)¿

If the nonparty deponent is a natural person, any person may serve the subpoena by personal delivery of a copy of it to that person.¿ (Code Civ. Proc., § 2020.220, subd. (b)(1).)¿ Personal service of any deposition subpoena is effective to require the personal attendance and testimony of the nonparty deponent, if the subpoena so specifies.¿ (Code Civ. Proc., § 2020.220, subd. (c)(1).)¿¿¿¿

“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.)

In making an order pursuant to motion made under¿subdivision (c) of Section 1987¿or under¿Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code of Civ. Proc. § 1987.2.)

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿

South Lake properly served CRE with the subpoena and notice of this motion. CRE has not responded nor filed opposition to this motion. Moreover, CRE seeks relevant information. Accordingly, South Lake is entitled to an order compelling CRE’s compliance with the subpoena.

South Lake requests sanction against CRE. Given that the court has granted this motion, the court finds sanctions are warranted. Accordingly, sanctions are imposed against CRE in the sum of $761.65, consisting of two hours at defense counsel’s hourly rate and $61.65 in filing fees.

The unopposed motion is GRANTED. Nonparty Cardinal Real Estate, Inc. is ordered to provide documents responsive to the subpoena within 15 days of this order.

The unopposed request for sanctions is GRANTED. Nonparty Cardinal Real Estate, Inc. is ordered to pay sanctions in the sum of $761.65 to Defendant 640 South Lake Owner’s Association, by and through its counsel, within 30 days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54(c).)