Judge Lynne M. Hobbs, Case Number: 20STCV18455, Date: 2024-09-05 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV18455, Date: 2024-09-05 Tentative Ruling

Case Number: 20STCV18455 Hearing Date: September 5, 2024 Dept: 61

FOREST SMITH, INDIVIDUALLY AND AS TRUSTEE OF THE FOREST G. SMITH IV REVOCABLE LIVING TR, et al. vs BLAIR STOVER

TENTATIVE

Plaintiffs Forest Smith and Lena Smith’s Motion to Compel Compliance with Deposition Subpoena to Nonparty Kruse Mennillo LLP is GRANTED. KML is directed to provide an affidavit in compliance with Evidence Code § 1561.

Plaintiffs to give notice.

DISCUSSION

” If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc. § 2025.480, subd. (a).) “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2025.480, subd. (b).)

Plaintiffs Forest Smith and Lena Smith, individually and in their capacity as trustees for their respective revocable trusts (Plaintiffs) move for an order compelling nonparty Kruse Mennillo LLP (KML) to comply with a subpoena issued to KML on February 28, 2024, seeking documents related to various business entities that Plaintiffs allege were instrumental in Stover’s fraud. (Kilgore Decl. Exh. 2.) Documents were produced on May 13, 2024. (Kilgore Decl. ¶ 12.) But Plaintiffs contend that this production came with several defects, such as its production of thousands of documents in a single conjoined pdf without individual document metadata, missing categories of requested documents (such as communications between Stover and KML, draft tax returns, invoices, documents related to an entity known as Blackacre Properties II, and K-1 forms for various entities), and a missing custodian declaration required by Evidence Code § 1561. (Motion at pp. 5–6.)Plaintiffs also contend that no privilege log was produced to describe what documents were being withheld due to privilege. (Motion at p. 6.)

KML in opposition contends that Plaintiffs failed to adequately meet and confer prior to filing this motion. (Opposition at pp. 2–6.) KML also argues that the categories that what Plaintiffs identify as missing are simply not in its possession, as KML has no draft tax returns, has no documents related to the Blackacre entity, and that the documents have no independent electronic metadata, as they are scanned copies of physical documents. (Opposition at pp. 7–9; Kawana Decl. ¶¶ 2–6.) KML also contends that no documents are being withheld due to privilege. (Kawana Decl. ¶ 7.)

Plaintiffs adequately met and conferred prior to filing the present motion. Plaintiffs provided KML with various extensions to allow them time to produce responsive documents. (Kilgore Decl. ¶¶ 7–10.) KML produced 13,000 pages of documents on May 13, 2024. (Kilgore Decl. ¶ 12.) Plaintiffs thereafter attempted to contact KML on June 28, July 2, July 3, and July 5 to arrange a conference on issues with KML’s document production. (Kilgore Decl. ¶¶ 15–19; Supp. Kilgore Decl. ¶ 7.) Although KML responded with a voicemail on July 3, attempts to return the message received no response. (Kilgore Decl. ¶ 19.) Since filing the motion, Plaintiffs have continued to meet and confer. (Bailey Decl. Exhs. C, E; Shakoorian Decl. Exh. 1.)

At a minimum, KML had notice prior to the motion that the absence of a custodian declaration as required under Evidence Code § 1561 was at issue. (Kilgore Decl. Exh. 8 [6/28/2024 Email].) Although KML disputes whether it has withheld any responsive documents, its emails sent to Plaintiffs after the motion was filed suggest, on at least some categories, its production is incomplete. (Bailey Decl. Exh. C [agreeing that invoices “should have been produced”].)

At present the court lacks sufficient information to determine what documents exist and which have been withheld. But the fault for this matter lies with KML, is it could have avoided questions concerning the scope of its production by the provision of the custodial declaration required by Evidence Code § 1561. This statute describes the required contents of the affidavit to accompany production of documents pursuant to a subpoena duces tecum. Included among these requirements is an attestation by the custodian of the following: “If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and those records that are available in one of the manners provided in Section 1560.” (Evid Code § 1561, subd. (b).)

KML does not dispute that no such affidavit was provided, even in the months after the motion was filed, and as the parties continued to meet and confer. (Opposition at p. 8.) It contends that the function of the affidavit was accomplished by the verification provided with its responses, and that the affidavit’s presence or omission is a “ministerial issue.” (Opposition at p. 9.) But this is incorrect. “[E]xecution of a section 1561 affidavit is more than simply a clerical task.” (Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1044.) KML’s verified responses are also inconsistent with the representations it now makes to the court. KML previously told Plaintiffs that it would produce responsive documents related to Blackacre, an entity of which it now denies all knowledge. (Kilgore Decl. Exh. 6; Kawana Decl. ¶ 3.) KML’s verification is thus a poor substitute for the required affidavit.

Accordingly, the motion is GRANTED. KML is directed to provide an affidavit in compliance with Evidence Code § 1561.