Judge Lynne M. Hobbs, Case Number: 23STCV10570, Date: 2024-07-17 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV10570, Date: 2024-07-17 Tentative Ruling

Case Number: 23STCV10570 Hearing Date: July 17, 2024 Dept: 61

A. DOUGLAS MASTROIANNI vs KRISTINA KUTSINA, et al.

TENTATIVE

Defendants Kristina Kutsina and Natalia Teaca’s Motion to Quash Deposition Subpoena is GRANTED. Sanctions are awarded against Plaintiff and Gary E. Mastin, jointly and severally, in the amount of $1,600.00, payable within 30 days.

Defendants to give notice.

DISCUSSION

I. MOTION TO QUASH DEPOSITION SUBPOENA

“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 party may bring a motion under this section. (Code Civ. Proc. § 1987.1, subd. (b)(1).)

Defendants Kristina Kutsina and Natalia Teaca (Defendants) move to quash two subpoenas duces tecum issued by Plaintiff A. Douglas Mastroianni (Plaintiff) to Bank of America, N.A. seeking all banking records of Defendants from 2009 onward. (Motion Exhs. K, L.)

Defendants argue that the subpoenas are defective because they were issued by someone who is not Plaintiff’s attorney of record in this case, Gary E. Mastin. Defendants note that statute allows “an attorney of record for any party” to issue a deposition subpoena. (Code Civ. Proc. § 2020.210, subd. (b).)

It is settled that the attorney of record has the exclusive right to appear in court for his client and to control the court proceedings, so that neither the party himself nor another attorney can be recognized by the court in the conduct or disposition of the case. If the attorney of record, however, associates another attorney with him, it rests with them to divide the duties concerning the conduct of the cause. The requirements of a substitution as prescribed in sections 284 and 285 of the Code of Civil Procedure are not applicable unless the associated attorney attempts to act as the sole attorney rather than as an associated attorney and to convert his association into a substitution for the attorney of record. In the present case Sweeney did not claim to act as sole attorney for plaintiff, but applied for the judgments as ‘one of the attorneys for plaintiff’ referring to his association with the attorneys of record from whom he derived his authority, and thus did not depart from the proper course for an associated attorney. (Wells Fargo & Co. v. City and County of San Francisco (1944) 25 Cal.2d 37, 42–43.)

The subpoenas here were issued by Gary E. Mastin on behalf of Plaintiff. (Motion Exhs. K, L.) Plaintiff, however, has been representing himself since the inception of this case. (See Complaint.) Mastin was purportedly brought into this case by Plaintiff’s notice of association of counsel, filed on January 29, 2024. But Plaintiff could not associate with any counsel by virtue of his disbarment from the practice of law in California as of August 19, 2020. (Motion Exh. D.) Mastin was never substituted in as counsel of record for Plaintiff, and per Code of Civil Procedure § 2020.210, subd. (b), he was not “attorney of record” with authority to issue the subpoenas.

Defendant’s argument based on the above authority and evidence is persuasive. Plaintiff, meanwhile, has filed no opposition. The subpoenas were improperly issued and are properly quashed.

The motion to quash is therefore GRANTED.

II. SANCTIONS

”Except as specified in subdivision (c), 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 Civ. Proc. § 1987.2, subd. (a).)

Defendants seek $1,600.00 in sanctions, representing four hours of attorney work at $385 per hour, plus a $60 filing fee. (Vanarelli Decl. ¶¶ 7–8.) The motion was unopposed, but under court rules in the analogous motion to compel context, ““The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (CRC Rule 3.1348, subd. (a).) At the same time, “[t]he failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.” (CRC Rule 3.1348, subd. (b).)

Plaintiff was warned of the present motion and the authority upon which it would be based in Defendants’ prior meet-and-confer correspondence. (Motion Exh. L.) Plaintiff responded to the authority presented with the simple response, “Make your motion.” (Ibid.) The correspondence presented by Defendants shows Plaintiff did not attempt to justify the subpoenas with contrary authority, and Plaintiff has presented no authority for their validity in opposition, despite inviting the present motion. Accordingly, sanctions in the amount of $1,600.00 are ordered against Plaintiff and Mastin.