Judge Melvin D. Sandvig, Case 22CHCV00770 2023-04-20 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV00770, Date: 2023-04-20 Tentative Ruling

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Case Number: 22CHCV00770 Hearing Date: April 20, 2023 Dept: F47

Dept. F47

Date: 4/20/23

Case #22CHCV00770

MOTION TO QUASH SUBPOENA,

OR ALTERNATIVELY

FOR A PROTECTIVE ORDER

Motion filed on 12/23/22.

MOVING PARTY: Defendant Gohar Khachatryan

RESPONDING PARTY: Plaintiff Armen Sefyan

NOTICE: ok

RELIEF REQUESTED: An order quashing, or alternatively imposing a protective order, regarding the Subpoena for Internal Revenue Service Income Tax Returns, Production of Business Records — U.S. Small Business Administration, Production for Records from Child Care Resource Center Inc for Gohar Khachatryan, and Production for Records from Ventura County Day Care Food Program for Gohar Khachatryan (“Subpoena”), made by Armen Sefyan (“Plaintiff”) on 12/17/22. Additionally, Defendant requests sanctions in the amount of $1,500.00.

RULING: The motion is moot, in part, and denied, without prejudice, in part.

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. Defendant Hayk Artashyan (Hayk) is Khachatryan and Artashyan’s son to whom Plaintiff claims Artashyan and Khachatryan have wrongfully transferred money from the child-care business.

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 Khachatryan with Notices to Consumer regarding a Deposition Subpoena for Production of Business Records issued to the IRS, a Deposition Subpoena issued to the SBA, a Deposition Subpoena issued to Child Care Resource Center, Inc. and Ventura County Day Care Food Program. After meet and confer efforts failed to resolve issues Khachatryan had with the subpoenas, on 12/23/22, Khachatryan filed and served the instant motion seeking an order quashing, or alternatively imposing a protective order, regarding the Subpoena for Internal Revenue Service Income Tax Returns, Production of Business Records — U.S. Small Business Administration, Production for Records from Child Care Resource Center Inc. for Gohar Khachatryan, and Production for Records from Ventura County Day Care Food Program for Gohar Khachatryan (“Subpoena”), made by Armen Sefyan (“Plaintiff”) 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 Gohar Khachatryan’s Records and a Notice of Withdrawal of Plaintiff’s Subpoena for Production of Records Served on Internal Revenue Service for Gohar Khachatryan’s Records, which were served on defense counsel on 3/7/23. The notices indicate that as a result of the subpoenas being withdrawn, the motion to quash same is moot.

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.”

On 4/7/23, by stipulation, Plaintiff’s Complaint was amended to add Annie Khostegyan as a Plaintiff. (See 4/7/23 Minute Order, p.5).

On 4/10/23, Plaintiffs filed an amended opposition to the motion. Plaintiffs’ request that the Court consider the amended late opposition as it was filed after the Court’s rulings on other motions.

The motion fails to provide clear notice of the relief sought. CRC 3.1110(a). In the notice and supporting memorandum of points and authorities, Khachatryan refers to “the Subpoena” when there are actually four separate subpoenas issued to four distinct entities at issue. The notice also refers to Income Tax Returns for Armen Artashyan who is not the moving party on this motion. (See Notice, p.2:7-9). Additionally, Khachatryan fails to provide copies of the subpoenas at issue. Instead, the motion attaches notices to consumer and subpoenas regarding Bank of America records which are not at issue in this motion. (See Motion, Ex.D). Copies of the subpoenas are attached to the original opposition papers. (See Sefyan Decl., Ex.1). Because four separate subpoenas are at issue, four separate motions should have been filed which specifically address why each subpoena should be quashed. The Court notes that Defendants’ counsel has a habit of improperly and confusingly combining motions, arguments, replies, etc. leaving it to Plaintiffs and/or the Court to try to decipher which arguments apply when.

Based on the withdrawal of the subpoenas issued to the IRS and SBA, the motion is moot as to those subpoenas. The motion combines the argument as to all of the subpoenas at issue; therefore, it is not clear how each argument applies to the subpoenas which are still at issue. Therefore, the motion is denied as to the subpoenas issued to Child Care Resource Center Inc. and Ventura County Day Care Food Program. Such denial is without prejudice to Khachatryan filing separate motions which specifically address each of the subpoenas which remain at issue.

The Court again notes Defendants’ counsel’s failure to bookmark the exhibits attached to the motion and the failure to authenticate 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).

Defendant has again failed 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.3:7-8). Additionally, the amount of sanctions is not adequately supported by a declaration. CCP 2023.040.

The Court also notes that Plaintiffs cannot recover attorney’s fees as sanctions as Plaintiff Armen Sefyan is an attorney representing himself and his wife. See Nissim Argaman (1999) 73 CA4th 1173, 1177-1180; See also Trope (1995) 11 C4th 274, 289, 292. Despite the fact that Annie Khostegyan has now been added back as a plaintiff in this action and Armen Sefyan, an attorney, represents himself and his wife, the Court still finds that attorney fees are not recoverable by Khostegyan.

Trope, supra, involved a law firm’s action against its client in which the firm represented itself. There was no indication that the individual attorney(s) who represented the law firm was a party to the action. However, the Court still held that the firm could not recover attorney’s fees because it was representing itself. Additionally, the Trope court noted that “the usual and ordinary meaning of the words ‘attorney fees,’ both in legal and general usage, is the consideration that a litigant actually pays or becomes liable to pay in exchange for legal representation.” Trope, supra at 280. Sefyan claims that his wife is responsible for half of the attorney’s fees incurred. (Amended Sefyan Decl., p.7:13-21). However, the Court finds the relationship between Sefyan and Khostegyan as husband and wife is akin to being part of the same law firm which is representing itself. There is also no evidence that any more time and effort is involved based on Sefyan’s representation of his wife along with himself in this action. (See Amended Sefyan Decl., p.7:13-21). Such a conclusion is supported by the fact that Plaintiffs seemingly only added Khostegyan back as a plaintiff after the Court raised concerns regarding her being an indispensable party. (See 4/7/23 Minute Order, p.5).

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.