Judge: Matthew C. Braner, Case: 37-2022-00021717-CU-EN-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Enforcement Motion Hearing (Civil) 37-2022-00021717-CU-EN-CTL AMERRA CAPITAL MANAGEMENT LLC VS STRUYK [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Tony Struyk's motion to quash subpoenas is DENIED.

For the second time, Defendant moves to quash subpoenas issued by Plaintiff Amerra Capital Management, LLC to non-parties East West Bank, P&B Land LLC, and Quanta Finance LLC, this time in connection with a judgment debtor exam originally set for October 20, 2023. That exam was continued to January 12, 2024, although it appears from Defendant's reply that he was not personally served with notice of the date and therefore will not appear. (ROA #151; Defendant's Reply, at p. 2.) First, the court is not persuaded the subpoena to East West Bank is invalid because Plaintiff was failed to serve a Notice to Consumer. Based on its review of the specific document requests at issue, they all relate to the entity's documents; they do not request Defendant's personal records, and therefore a consumer notice was not required.

Second, given the circumstances in this case, Defendant's other arguments lack merit. The first time Plaintiff issued subpoenas to these entities in early 2023, the court was persuaded that it would be improper to enforce them against non-party entities in a situation where the noticed date had been vacated. Then, as now, the court was primarily concerned with an issue of adequate notice, and therefore granted Defendant's first motion to quash. However, the court has now had the benefit of nearly a year witnessing first-hand Defendant's ongoing efforts to avoid appearing at a judgment debtor exam. The court will not sanction the gamesmanship inherent in arguing that Plaintiff is precluded from gathering needed evidence via subpoena and witness testimony unless Defendant appears at a judgment debtor exam, while making ongoing efforts to ensure that he does not appear at such an exam by evading personal service.

As such, the court will exercise its authority under Code of Civil Procedure section 187 to 'fashion an appropriate procedure' in relation to Plaintiff's efforts to gather evidence related to Defendant's assets.

(See Yolanda's, Inc. v. Kahl & Goveia Commercial Real Estate (2017) 11 Cal.App.5th 509, 515.) The court will allow examination of the three non-party entities at issue here, and will require them to produce the documents requested, regardless of whether Defendant is personally served with notice of the new or continued judgment debtor exam date, and regardless of whether Defendant appears on that date.

The court will hear from the parties regarding the process that best effectuates the court's authority to allow examination of the non-party entities to move forward.

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