Judge: Lee W. Tsao, Case: 21NWCV00400, Date: 2023-05-09 Tentative Ruling

Case Number: 21NWCV00400    Hearing Date: May 9, 2023    Dept: C

THE WINDMILL CO. INC. v. SEDRAK, et al.

CASE NO.:  21NWCV00400

HEARING: 5/9/23 @ 10:30 AM

#6

TENTATIVE RULING

Defendants Sedrak and O&C Hillside Resource Management Co.’s motion to quash subpoena to John Soldate is GRANTED.  The motion for a protective order is DENIED as moot.  Sanctions are imposed against Plaintiff and counsel, jointly and severally, in the reasonable sum of $3,206.00, payable within 30 days.

Moving Parties to give NOTICE.

Defendants Sedrak and O&C Hillside Management Co. (“O&C Hillside”) move to quash the March 17, 2023 subpoena and for a protective order pursuant to CCP §1987.1.

On June 21, 2021, Plaintiff, the Windmill Co., Inc., filed an action against Fayez Sedrak and O&C Hillside Resources Management Co., alleging Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, and Declaratory Relief. Plaintiff alleged that on January 3, 2020, Plaintiff entered into a Sale of Business Agreement with O&C Hillside to purchase the business known as ARCO AM PM for $1,590,0000.00.  Plaintiff alleges that Defendants failed to perform the agreement and refused to sell the business to Plaintiff. 

CCP § 1987(a) explicitly states the subpoena must be delivered to the witness personally.  Actual personal service of the Court process is a necessary prerequisite to personal jurisdiction, and failure to personally serve the process as required under Code of Civil Procedure section 415.10 et seq. renders the service void.  (Honda Motor Co. v. Superior Court (1992) 10 Cal. App. 4th 1043, 1048.)

On March 17, 2023, Plaintiff served Soldat by email.  (Jaroscak Decl., ¶ 3; Ex. E.) The subpoena served on March 17, 2023 was improperly served, and therefore will be quashed.

In opposition, Plaintiff contends that it withdrew its March 17, 2023 subpoena and served a subsequent subpoena on April 10, 2023, to rectify the service of process procedural defect.  (Opposition, 7:10; Ex. 2.)  However, a discovery motion is not made moot by the untimely withdrawal of the requested discovery

following the making of a motion.  (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App. 4th 390, 408-409.)  The present motion was filed on March 23, 2023, and the withdrawal occurred on March 24, 2023. (Mashney Decl., Ex. 3.)  The second subpoena served on April 10, 2023 is not the subject of the present motion. 

Accordingly, the motion to quash the March 17, 2023 subpoena is GRANTED.

The request seeking a protective order for tax information disclosure is DENIED as moot, as the tax documents requested in the March 17, 2023 subpoena is no longer at issue.  The information contained in the April 10, 2023 concerns different documents and is not the subject of the present motion.

Sanctions:  The Court may, in its discretion award the amount of the reasonable expenses incurred in making or opposing a motion to quash, including reasonable attorney’s fees, if the court finds that the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements was oppressive.  (CCP § 1987.2.) 

The court finds that sanctions are warranted because the defective subpoena was not withdrawn during the meet and confer process, prior to the filing of the motion.  The court finds Defendants’ request of $3,206 is reasonable.  Accordingly, sanctions are imposed against Plaintiff and counsel, jointly and severally, in the reasonable sum of $3,206.00, payable within 30 days.