Judge Lee W. Tsao, Case Number: 22NWCV01710, Date: 2023-12-19 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01710, Date: 2023-12-19 Tentative Ruling

Case Number: 22NWCV01710 Hearing Date: December 19, 2023 Dept: C

Cao Cao LLC vs Dan Goldman Jewelers & Co., Inc, et al

Case No. 22NWCV01710

Hearing Date: 12/19/23 at 9:30am

Tentative Ruling

Defendant Dan Goldman Jewelers & Co., Inc.’s Motion to Quash Deposition Subpoena for the Production of Business Records is GRANTED.

Sanctions are awarded in the reduced amount of $1,060.00.

Moving Party to Give Notice.

No Opposition filed as of December 15, 2023

Background

Plaintiff CAO CAO, LLC (“Plaintiff”)’s complaint against Defendants DAN GOLDMAN JEWELERS & CO., INC. (“DGJ”) and DANIEL MOUREY (“Mourey”) consists of a single cause of action for Breach of Commercial Lease Agreement. On July 3, 2023, Plaintiff’s counsel issued a deposition subpoena to Bank of America seeking consumer records of DGJ and a third-party Property Buyer, Inc. (Olson Decl., ¶1; Ex. A.) The subpoena seeks a variety of bank records such as canceled checks, bank statements, and deposit slips for both DGJ and Property Buyer, Inc.

The Notice to Consumer was purportedly served with the Subpoena on DGJ, but no such notice appears to be provided to Property Buyer, Inc. even though the subpoena seeks consumer records belonging to this entity. (See Decl. of Olson, ¶2; Ex. A).

Motion to Quash

C.C.P. §1987.1(a) provides, in pertinent part, as follows: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things… at the taking of a deposition, the court, upon motion reasonably made by [a party]…, 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.”

Discussion

Plaintiff’s claims against the Defendants in this matter are all related to a breach of lease agreement. The damages alleged are contractual, with no tortious conduct alleged, nor does Plaintiff pray for exemplary or punitive damages.

A party may seek the financial condition of a defendant under the mandates of California Civil Code §§ 3294 and 3295. Section 3294 only allows for the recovery of damages if the breach of an obligation does not arise from a contract. (See California Civil Code § 3294.) Section 3294 allows for discovery of the financial condition of the defendant if the requirements of Section 3294 are met. (See California Civil Code § 3295.)

Here, the allegations are based only on a claim of breach of lease agreement. The subpoena exceeds the scope of discovery and Plaintiff is not entitled to seek any party’s financial condition via the subpoena.

Plaintiff’s Motion to Quash Subpoena is GRANTED.

Sanctions

Code of Civil Procedure section 1987.2 states in pertinent part: “[I]n making an order pursuant to motion made 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.”

Plaintiff requests $1,400 in sanctions (2.5 hours researching and drafting the motion, 1 hour to review the opposition and attending the hearing at $400 per hour.) Plaintiff also requests reimbursement of the filing fee of $60. Given the lack of opposition, the Court awards $1,060 in sanctions.