Judge: Melvin D. Sandvig, Case: 22CHCV00770, Date: 2023-04-05 Tentative Ruling
Case Number: 22CHCV00770 Hearing Date: April 5, 2023 Dept: F47
Dept. F47
Date: 4/5/23
Case #22CHCV00770
MOTION TO QUASH
(Deposition
Subpoena)
Motion filed on 11/18/22.
MOVING PARTY: Defendant Gohar Khachatryan
RESPONDING PARTY: Plaintiff Armen Sefyan
NOTICE: ok
RULING: The request to quash the subpoena is
granted. The request for sanctions is
denied.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of an alleged breach of an oral
agreement to operate a childcare business.
Plaintiff Armen Sefyan (Plaintiff) contends that on or about 12/1/18
Defendants Gohar Khachatryan (Khachatryan) and Armen Artashyan (Artashyan)
(collectively, Defendants) entered into an oral agreement with Plaintiff and
his wife Annie Khostegyan to be partners in a
childcare business operated by Defendants at property owned by Plaintiff and
his wife. Plaintiff contends that
Defendants breached the agreement in or around April of 2022 by unilaterally
moving the childcare business to a property Defendants had just purchased and
claiming the business belonged solely to Defendants.
On 9/19/22, Plaintiff and his wife filed the original
complaint against Defendants for: (1) Breach of Contract, (2) Fraud, (3)
Conspiracy to Commit Fraud, (4) Breach of Fiduciary Duty, (5) Embezzlement, (6)
Conspiracy to Commit Embezzlement, (7) Conversion of Funds, (8) Constructive
Trust, (9) Misappropriation of Funds, (10) Unjust Enrichment, (11) Quiet Title,
(12) Property Damage, (13) Punitive Damages and (14) Breach of Contract –
Residential Lease.
On 10/31/22, Plaintiff served Khachatryan with a Notice
to Consumer regarding a Deposition Subpoena for Production of Business Records
issued to Bank of America. After meet
and confer efforts failed to resolve issues Khachatryan had with the subpoena,
on 11/18/22, Khachatryan filed and served the instant motion seeking an order
quashing, or alternatively for a protective order, regarding the Subpoena for
Production of Business Records served by Plaintiffs Armen Sefyan and Annie
Khostegyan on Bank of America regarding Khachatryan. Additionally, Khachatryan requests sanctions in
the amount of $1,500.00.
On 12/6/22, a First Amended Complaint was filed by
Plaintiff Armen Sefyan, only, against Defendants and Hayk Artashyan for: (1)
Breach of Contract, (2) Fraud, (3) Breach of Fiduciary Duty, (4) Embezzlement,
(5) Misappropriation of Funds, (6) Quiet Title, (7) Negligence and (8) Breach of Contract –
Residential Lease.
On 2/7/23, Plaintiff filed an opposition to the motion
and requests sanctions against “Defendant and Defendant’s Attorney Areg
Sarkissian.” On 3/27/23, Plaintiff filed
a “Supplement to Opposition.” On 3/28/23,
Khachatryan filed a reply to the opposition.
PROCEDURAL DEFECTS
Both the motion and opposition suffer from procedural
defects.
Defendants’ counsel has failed to bookmark the exhibits
attached to the motion. See CRC
3.1110(f)(4); (5/3/19 First Amended General Order Re Mandatory Electronic Filing
for Civil).
The notice of motion fails identify the exact subpoena at
issue and a copy of the subpoena at issue is not attached to the motion or
supporting declaration. However, the
subpoena at issue was provided with the opposition papers.
The exhibits attached to the motion are not
authenticated.
The opposing memorandum of points and authorities exceeds
the 15-page limit set forth in CRC 3.1113(d) by one page without court approval
(the memorandum begins on p.3 and ends on p.19). See CRC 3.1113(e). Despite the foregoing, the entire opposition
memorandum was considered by the Court in ruling on the merits of the
motion. CRC 3.1113(g); CRC 3.1300(d).
Even if Plaintiff had prevailed on the motion, Plaintiff
cannot recover attorney’s fees as sanctions as he is an attorney representing
himself. See Nissim Argaman
(1999) 73 CA4th 1173, 1177-1180; See also Trope (1995) 11 C4th
274, 289, 292.
Counsel and/or the parties are warned that failure to
comply with court rules and/or orders in the future may result in papers not
being considered, matters being continued so that papers may be resubmitted in
compliance with court orders and/or rules, and/or the imposition of sanctions.
ANALYSIS
The subject subpoena seeks:
“FROM JANUARY 1, 2019
THROUGH AND INCLUDING THE DATE OF PRODUCTION HEREIN, UNLESS OTHERWISE
INDICATED, THE FOLLOWING DOCUMENTS:
1.
Any and all Documents and relating to or referencing GOHAR KHACHATRYAN,
Social Security Number: [redacted], Driver’s License Number: [redacted]; DOB:
[redacted] including but not limited to, Checking and/or Savings Account
Statements, Cancelled Checks, Wire Transfers, Correspondence, Credit
Applications, etc.”
(See Seyfan Decl., Ex.1)
The right to privacy extends to one’s confidential
financial affairs. See Valley
Bank of Nevada (1975) 15 C3d 652, 656.
Plaintiff alleges that he, his wife and Defendants entered into an oral
agreement whereby Plaintiff and his wife would be “silent partners” in a
daycare business, “Khachatryan Family Child Cere” (KFCC), which was to be run
by Defendants. (See FAC ¶17.a.-j.). Plaintiff further alleges “[t]he parties
agreed to equally divide all net profits from KFCC.” (FAC ¶17.c).
It is not even clear that Plaintiff has provided a sufficient basis to
obtain the financial records of or relating to KFCC (i.e., the documents
attached to the FAC do not clearly evidence monthly accounting statements for
KFCC provided by Defendants to Plaintiff), much less all of Khachatryan’s
personal financial information from Bank of America as sought by the subpoena.
As such, the subject subpoena is quashed. See CCP 1987.1(a). Khachatryan’s request for sanctions is
denied. First, the notice of motion
fails to specify against whom the sanctions are sought. See CCP 2023.040. Instead, the notice merely states:
“…Defendant is requesting sanctions in the amount of $1,500 for the abuse of
the discovery process and improperly requesting a subpoena of records.” (See Motion, p.2:16-17). Second, the amount of sanctions is not
adequately supported by the declaration submitted in support of the
motion. (See Sarkissian Decl.);
CCP 2023.040.
CONCLUSION
The request to quash the subject deposition subpoena is
granted. Both parties’ requests for
sanctions are denied.