Judge: Kevin C. Brazile, Case: 21STCV37455, Date: 2023-08-03 Tentative Ruling

Hearing Date: August 3, 2023

Case Name: Cooper v. The Luxury Escape Design, LLC, et al.

Case No.: 20STCV44079 

Matter: Motion to Compel

Moving Party: Plaintiff Emrhys Cooper

Responding Party: Defendant Dominique Bossavy

Notice: OK

Ruling: The Motion is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On November 16, 2020, Emrhys Cooper filed the operative Complaint against Defendants The Luxury Escape Design, LLC and Dominique Bossavy for (1) violations of the UCL, (2) trespass, (3) breach of warranty of quiet enjoyment, and (4) negligence.

Plaintiff, pursuant to her notice to appear, now seeks to compel Bossavy to appear at trial and produce documents.

Bossavy has asserted several objections, including that the notice to appear is ineffective to the extent that she is not a resident of California.

Code Civ. Proc. § 1989 states, “A witness, including a witness specified in subdivision (b) of Section 1987, is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service.”

In In re Morelli (1970) 11 Cal.App.3d 819, 830–31, it was said:

‘On * * * occasions where the term [(residence)] is employed in statutes * * *, it * * * involves physical presence in a place without requiring the intent to make it one's home which is involved in the domicile concept.’ (77 C.J.S. Residence, p. 303, fn. 18, citing United States v. Stabler, 3 Cir., 169 F.2d 995, 998.) It can mean dwelling in a place for some continuance of time for business (note Morelli's status at California Institute of Technology) or other purposes. (Ibid. 77 C.J.S. p. 301.) It does not depend on the manner of living which may be housekeeping or lodging. (Ibid. C.J.S. p. 293.) ‘The word ‘residence’ has been held to be equivalent to * * * ‘abode’ see 1 C.J.S. p. 309 note 2, (or even) ‘address' see 1 C.J.S. p. 1460 notes 59, 60.’ (Ibid. p. 305.) [ ] One may have residences simultaneously in the city and the country (ibid. p. 294) or for nine months in one place and three months in another. (Ibid. C.J.S. p. 20, 1970 pocket part, fn. 51, citing case of Fromkin v. Loehmann's Hewlett, Inc., 16 Misc.2d 117, 184 N.Y.S.2d 63, 65.) A person may have several residences at the same time and for different purposes. (Burt v. Scarborough, 56 Cal.2d 817, 822, 17 Cal.Rptr. 146, 366 P.2d 498; Whittell v. Franchise Tax Board, 231 Cal.App.2d 278, 284, 41 Cal.Rptr. 673.) It, of course, can be different from domicile, which is the most settled and permanent connection and of which a person has but one. (Smith v. Smith, 45 Cal.2d 235, 339—340, 288 P.2d 497; Whittell v. Franchise Tax Board, Supra, 231 Cal.App.2d 278, 284, 41 Cal.Rptr. 673.)

We find no California decisions construing residency for purposes of subpoena power. We feel that residence under Code of Civil Procedure, section 1989 clearly is residence in fact and not domicile; that the subpoena section envisages nothing more than an abode, possibly combined with a professional base of operations, which gives the ‘resident’ a sojourning connection with the area of a type and duration related to the status of a witness and which makes it not a hardship for him to attend the legal proceedings at which he is commanded to appear.

“ ‘[R]esidence’ connotes any factual place of abode of some permanency, more than a mere temporary sojourn.”  (Smith v. Smith (1955) 45 Cal.2d 235, 239.)

Bossavy indicates that she lives in Texas; she has not “owned, rented, or leased a residence in California since July 2021”; and she is “the CEO of Dominique Bossavy, Inc. and Dominique Bossavy NY, Inc. As the CEO, I have visited its clinics – including the one in Beverly Hills – from time to time in my professional capacity. But I do not live in California.”

Plaintiff points to Bossavy’s social media to show that she still actually lives in Beverly Hills.  This, however, is not sufficiently reliable evidence.

Plaintiff also notes that Bossavy has a clinic in Beverly Hills and that a video shows her working there in May 2023.  

To show Bossavy is a resident, there must be evidence that she has some degree of continuous presence here.  While it’s been shown that Bossavy sometimes works in Beverly Hills, there’s been no showing of how often that happens.  Notably, her company also has clinics in New York and Paris. 

“A ‘Notice to Attend’ is effective to compel the attendance at trial only of persons who are ‘residents; of California at the time the notice is served.”  (Cal. Prac. Guide Civ. Trials & Ev. Ch. 1-C.)  Because the evidence is not sufficient to conclude that Bossavy is a resident, the Motion is denied.  The objections are overruled.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.