Judge: Melvin D. Sandvig, Case: 22CHCV00770, Date: 2023-04-07 Tentative Ruling
Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).
Case Number: 22CHCV00770 Hearing Date: April 7, 2023 Dept: F47
Dept. F47
Date: 4/7/23
Case #22CHCV00770
MOTION TO QUASH
(Deposition
Subpoena)
Motion filed on 11/18/22.
MOVING PARTY: Defendant Armen Artashyan
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 Artashyan 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 Artashyan had with the subpoena, on
11/18/22, Artashyan 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 Artashyan. Additionally, Artashyan 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,
Artashyan filed a reply to the opposition.
On 4/3/23, Lauren A. Landau, one of Defendants’ attorneys, filed another
declaration for this hearing date and the 4/5/23 hearing date. On 4/5/23, after that morning’s hearing on Khachatryan’s
motion to quash, Plaintiff filed a Supplemental Declaration for this hearing
date and the 4/5/23 hearing date.
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 to 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.
Both parties have improperly filed supplemental
declarations after the statutory filing deadlines and seemingly in response to
the Court’s tentative ruling on the 4/5/23 motion to quash. See CCP 1005(b).
Counsel and/or the parties are warned that failure to
comply with court rules, statutory requirements 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 ARMEN ARTASHYAN,
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 Artashyan’s
personal financial information from Bank of America as sought by the subpoena.
Plaintiff’s supplemental declaration is untimely and
improper as Defendants have not had the opportunity to respond to the claims
therein. Regardless, the information in
the declaration would not change the ruling on the motion. In the supplemental declaration, Plaintiff
concludes without any evidentiary support that the Bank of America accounts in
the name of Gohar Khachatryan are also the bank accounts for KFCC. (Supplemental Sefyan Decl. ¶¶4-5). Plaintiff also concludes without evidentiary
support Artashyan also uses his personal bank accounts to deposit KFCC income
and pay KFCC expenses. (Supplemental
Sefyan Decl. ¶7). Plaintiff attaches a
copy of his Bank of America activity log which show transfers made by
Defendants to him which Plaintiff claims were for Defendants’ residential rent
and the net distribution for the KFCC income.
(Supplemental Sefyan Decl. ¶8).
Contrary to Plaintiff’s assertions, he has not yet clearly
established that he and his wife were business partners with Defendants in
KFCC. Rather, the foregoing is the main
issue to be determined in this case. At
this point, the case is not even at issue as Defendants’ motions to quash service
of the summons and complaint are pending.
Even if there was no dispute that such a partnership existed, Plaintiff has not established
that he is entitled to all of the banking records requested as they may include
financial information of Defendants which is completely unrelated to KFCC. As such, the subpoena is overbroad.
Based on the foregoing, the subject subpoena is
quashed. See CCP 1987.1(a). Artashyan’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.
Both parties are advised that it is improper to file
“supplemental” papers in response to a tentative ruling posted by the Court
and/or after the hearing on a motion and such papers will not be
considered.
Additionally, the Court notes that based on the
allegations in the First Amended Complaint that Plaintiff’s wife was a party
the alleged oral agreement regarding the child care business, that she is a
party to the lease agreement attached to the First Amended Complaint and
Plaintiff’s repeated statements in filings regarding he and his wife being
partners in KFCC with Defendants, it appears that Plaintiff’s wife, who was
originally named as a plaintiff in the action, is an indispensable party. See CCP 389(a).
As such, the Court will set an Order to Show Cause Re why
Annie Khostegyan should not be made a party to this action either as a
plaintiff or nominal defendant so that Defendants are not at risk of being
subject to a multiplicity of actions on the same issues.