Judge: Melvin D. Sandvig, Case: 22CHCV00770, Date: 2023-04-21 Tentative Ruling
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Case Number: 22CHCV00770 Hearing Date: April 21, 2023 Dept: F47
Dept. F47
Date: 4/21/23
Case #22CHCV00770
MOTION TO QUASH
OR,
ALTERNATIVELY,
FOR A
PROTECTIVE ORDER
Motion filed on 2/21/23.
MOVING PARTY: Defendant Hayk Artashyan
RESPONDING PARTY: Plaintiffs Armen Sefyan and Annie
Khostegyan
NOTICE: ok
RULING: The motion is denied as set forth below. Plaintiffs’ 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.
Plaintiffs Armen Sefyan and Annie Khostegyan (Plaintiffs) contend that
on or about 12/1/18 Defendants Gohar Khachatryan (Khachatryan) and Armen
Artashyan (Artashyan) (collectively, Defendants) entered into an oral agreement
with Plaintiffs to be partners in a childcare business operated by Defendants
at property owned by Plaintiffs.
Plaintiffs contend 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 Plaintiffs claim Khachatryan
and Artashyan have wrongfully transferred funds from the childcare
business.
On 9/19/22, Plaintiffs, who are husband and wife, filed
the original complaint against Khachatryan and Artashyan 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 Khachatryan, Artashyan and Hayk 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.
The motion contends that on 2/13/23, Plaintiffs served
document requests on Hayk and a subpoena on Bank of America seeking records
related to Hayk. On 2/21/23, Hayk filed
and served the instant motion seeking an order quashing, or alternatively for a
protective order, regarding the request for production and inspection of
documents as well as the subpoena served by Plaintiff on 2/13/23. Additionally, Hayk requests sanctions in the
amount of $1,500.00.
On 4/7/23, pursuant to stipulation, Annie Khostegyan was
added back as a Plaintiff in the action.
(See 4/7/23 Minute Order, p.5).
On 4/10/23, Plaintiffs filed and served by mail an
opposition to the motion. The service of
the opposition by U.S. mail does not comply with CCP 1005(c) which requires
that opposition papers be served via a method reasonably calculated to ensure
delivery by the close of the next business day.
A reply has not been filed.
ANALYSIS
Even without considering the improperly served opposition,
the motion fails due to both procedural and substantive defects as set forth
below.
Defense 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 exhibits attached to the motion are not
authenticated.
Defense counsel has improperly filed one motion which
addresses two different discovery vehicles: (1) a request for production of
documents and (2) a subpoena for production of business records seemingly
served on Bank of America, both of which were purportedly served on
2/13/23. However, Hayk fails to provide
the Court with copies of either the document requests or the subpoena at
issue. As such, it is not clear exactly
what documents Plaintiffs have sought from Hayk or Bank of America.
As noted in the Court’s ruling denying Hayk’s motion to
quash service of summons, the summons and First Amended Complaint were properly
served on Hayk before either of the discovery vehicles at issue were served. (See 4/17/23 Minute Order). Therefore, Hayk’s argument that the document
requests were prematurely served is without merit. Additionally, the motion provides no
authority for quashing a request for production of documents served by one
party on another. While the notice of
motion indicates that Hayk, alternatively, seeks a protective order regarding
the document requests and the subpoena, he fails to adequately explain why a
protective order is warranted as to the document requests and/or the extent of
such a protective order. (See
Motion, p.3:8-11, p.9:11-18). As such,
to the extent the motion seeks an order quashing the document requests or
granting a protective order regarding same, it is denied.
Because Hayk has failed to provide the Court with a copy
of the subpoena purportedly served on Bank of America or quote the entirety of what
is sought by the subpoena and the subpoena is not provided with the opposition,
the Court does not have sufficient information to make a ruling as to the
subpoena at issue in this motion. As
such, the motion is denied without prejudice as to the subpoena served on Bank
of America concerning Hayk.
However, if the subpoena seeks the same documents from
Bank of America concerning Hayk as sought relating Khachatryan and Artashyan,
the subpoena would be quashed for the same reasons set forth in the Court’s
rulings on Khachatryan’s and Artashyan’s motions to quash subpoenas served on
Bank of America. (See 4/6/23 and
4/7/23 Minute Orders). Therefore, the
Court recommends that counsel for the parties meet and confer to try to
informally resolve this issue before another motion to quash or motion to
compel compliance is filed.
Even if Plaintiffs had properly served the opposition, 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. (Sefyan Decl., p.9:8-16). 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 Sefyan Decl., p.8:19-p.9:16). 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 deadlines and/or court 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.