Judge Melvin D. Sandvig, Case 22CHCV00770 2023-04-19 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV00770, Date: 2023-04-19 Tentative Ruling

Case Number: 22CHCV00770 Hearing Date: April 19, 2023 Dept: F47

Dept. F47

Date: 4/19/23

Case #22CHCV00770

MOTION TO QUASH SUBPOENA,

OR ALTERNATIVELY

FOR A PROTECTIVE ORDER

Motion filed on 12/23/22.

MOVING PARTY: Defendant Armen Artashyan

RESPONDING PARTY: Plaintiff Armen Sefyan

NOTICE: ok

RELIEF REQUESTED: An order quashing, or alternatively imposing a protective order, regarding the Subpoena for Production of Business Records – U.S. Small Business Administration and Internal Revenue Service Income Tax Returns made by Armen Sefyan on 12/17/22. Additionally, Defendant requests sanctions in the amount of $1,500.00.

RULING: The motion is placed off calendar as moot.

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 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 12/17/22, Plaintiff served Artashyan with Notices to Consumer regarding a Deposition Subpoena for Production of Business Records issued to the IRS and a Deposition Subpoena issued to the SBA. After meet and confer efforts failed to resolve issues Artashyan had with the subpoenas, on 12/23/22, Artashyan filed and served the instant motion seeking an order quashing, or alternatively imposing a protective order, regarding the Subpoena for Production of Business Records – U.S. Small Business Administration and Internal Revenue Service Income Tax Returns made by Armen Sefyan on 12/17/22. Additionally, Defendant requests sanctions in the amount of $1,500.00.

On 2/7/23, Plaintiff filed an opposition to the motion and requested sanctions against “Defendant and Defendant’s Attorney Areg Sarkissian.” On 3/8/23, Plaintiff filed a Notice of Withdrawal of Plaintiff’s Subpoena for Production of Records Served on US Small Business Administration for Armen Artashyan’s Records and a Notice of Withdrawal of Plaintiff’s Subpoena for Production of Records Served on Internal Revenue Service for Armen Artashyan’s Records, which were served on defense counsel on 3/7/23. The notices indicate that as a result of the subpoenas being withdrawn, Artashyan should take the instant motion off calendar.

On 4/3/23, a Reply was filed by Khachatryan indicating that it relates to the 4/19/23 and 4/20/23 hearing dates and “Motion to Quash Plaintiff’s IRS, SBA, and CCRC, and Ventura County Day Care Food Program Subpoenas.”

Confusingly, the reply seems to concede that the request to quash the subpoenas is moot because they have been withdrawn but then goes on to re-argue why the subpoenas should be quashed or a protective order issued. (See Reply, p.2:25-p.5:24). It appears that even though the requests to quash the subject subpoenas are now moot due to the subpoenas being withdrawn, Artashyan did not take the motion off calendar so that he could pursue his request for sanctions. (See Reply, p.3:7-11).

Due to the many procedural and substantive defects in the motion and reply, the Court declines to award Artashyan sanctions. These defects include:

Defendants’ counsel’s failure 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 failure to authenticate the exhibits attached to the motion.

The motion’s failure to clearly set forth that two separate subpoenas are at issue. The motion confusingly refers to “the Subpoena” and attaches notices to consumer and subpoenas regarding Bank of America records which are not at issue in this motion. (See Motion, Ex.D). Defendant fails to provide copies of the subpoenas at issue. However, copies of the subpoenas are attached to the opposition papers. (See Sefyan Decl., Ex.1). Because two separate subpoenas are at issue, two separate motions should have been filed.

The citation to inapplicable authority (i.e., CCP 2019.030(a)(2) – Motion p.7:14-15 ; Reply p.4:11). See CCP 2019.010; CCP 2019.030(a) – does not apply to subpoenas for business records.

The failure to identify in the notice of motion 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.2:25-26). Additionally, the amount of sanctions is not adequately supported by the declaration submitted in support of the motion. (See Sarkissian Decl.); CCP 2023.040.

The reply indicates that it relates to both the 4/19/23 and 4/20/23 hearing dates but indicates that it is made only on behalf of Khachatryan. (See Reply p.1:16, p.1:22). The reply further indicates that it relates to “Defendant’s Motion to Quash IRS, SBA, CCRC, and Ventura County Day Care Food Program Subpoenas” when only the subpoenas issued to the IRS and the SBA are the subject of this motion. It is neither the Court’s nor Plaintiff’s burden to figure out which arguments apply to which of Defendants’ motions.

The Court also notes that if the motion had proceeded on the merits and 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, 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.