Judge: Michael E. Whitaker, Case: 23SMCV01959, Date: 2023-10-31 Tentative Ruling

Case Number: 23SMCV01959    Hearing Date: March 6, 2024    Dept: 207

TENTATIVE RULING - NO. 1

BACKGROUND

This action stems from a commercial landlord-tenant dispute.  Plaintiff Merchants Barstow LLC (“Plaintiff”) leases 24 buildings from Defendant Barstow Outlet, LLC (“Defendant”), each of which Plaintiff subleases to separate cannabis businesses.  (SAC ¶ 1.)  Plaintiff alleges that Defendant misrepresented that these buildings each had 800 AMPS of power capacity, which cannabis businesses require, when they only had 400 AMPS of capacity, which is insufficient to run a cannabis business.  (SAC ¶¶ 2-14.) 

Defendant moves to compel third party Winners Circle HD, LLC (“Winners Circle”), one of Defendant’s subtenants, to comply with the subpoena served upon it on November 1, 2023, with a production date of November 27, 2023.  Defendant also seeks monetary sanctions.  The motion is unopposed.

ANALYSIS

Motion to Compel

“In California, discovery may be obtained from a nonparty through an oral deposition, a written deposition, or a deposition for the production of business records and things. (Code Civ. Proc., § 2020.010, subd. (a).)” (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1030 (“Board of Registered Nursing”).) “To pursue the deposition of a nonparty, a party must generally serve a deposition subpoena.” (Ibid.).)

“‘A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.’ [Citation.]” (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1030.)

“‘If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.’ (Code Civ. Proc., § 2025.480, subd. (a).)” (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1031.) “‘[D]iscovery conducted by

way of a business records subpoena is a “deposition.”’ [Citation.]” (Id. at pp. 1031-1032.) “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1.)

            On November 1, 2023, Defendant personally served Winners Circle with a deposition subpoena to produce various documents pertaining to the property, with a production date of November 27, 2023, 2023.  (Ex. 1 to Sprague Decl.)  As of the January 25, 2024 filing date of the motion, Desert Bloom had not produced any documents, served objections, moved to quash, moved for a protective order, or otherwise substantively responded to the subpoena.  (Sprague Decl. ¶ 6; Engquist Decl. ¶¶ 2-6 and Exs. A-B.)  Accordingly, the Court finds that Winners Circle has failed to comply with the subpoena.

Sanctions

            Defendant seeks monetary sanctions in the amount of $1,000 pursuant to Code of Civil Procedure section 2023.050 and an additional $3,055 for reasonable attorneys’ fees and costs incurred in bringing the instant motion.           

            Section 2023.050 provides that “in addition to any other sanctions imposed pursuant to this chapter, the court shall impose a one-thousand dollar ($1,000) sanction if the production is made within seven days before the hearing on a motion to compel brought pursuant to section 2025.480. 

            Here, because no production occurred prior to seven days before the hearing, the Court imposes the mandatory $1,000 sanction.

            Defendant also seeks its reasonable attorneys’ fees and costs incurred in bringing the motion, pursuant to Code of Civil Procedure section 1987.2, which provides that “the court may in its discretion award the amount of the expenses incurred in making or opposing the motion, including reasonable attorneys’ fees, if the court finds the motion was made or opposed in bad faith or without substantial justification[…]” 

            Here, Winners Circle did not oppose the motion.  As such, the Court cannot make a finding that the motion was opposed in bad faith or without substantial justification.  Therefore, the Court declines to award additional sanctions.

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to compel Winners Circle’s compliance with the deposition subpoena within 30 days of notice of the Court’s order. 

The Court further awards mandatory monetary sanctions against Winners Circle, payable to Defendant, by and through Defendant’s counsel, in the amount of $1,000, pursuant to Code of Civil Procedure section 2023.050 within 30 days of notice of the Court’s order.

Defendant shall provide notice of the Court’s order and file a proof of service of such.

DATED:  March 6, 2024                                                        ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court

 TENTATIVE RULING -  NO. 2

BACKGROUND

This action stems from a commercial landlord-tenant dispute.  Plaintiff Merchants Barstow LLC (“Plaintiff”) leases 24 buildings from Defendant Barstow Outlet, LLC (“Defendant”), each of which Plaintiff subleases to separate cannabis businesses.  (SAC ¶ 1.)  Plaintiff alleges that Defendant misrepresented that these buildings each had 800 AMPS of power capacity, which cannabis businesses require, when they only had 400 AMPS of capacity, which is insufficient to run a cannabis business.  (SAC ¶¶ 2-14.) 

Defendant moves to compel third party Desert Bloom Holdings, LLC (“Desert Bloom”), one of Defendant’s subtenants, to comply with the subpoena served upon it on October 26, 2023, with a production date of November 27, 2023.  Defendant also seeks monetary sanctions.  The motion is unopposed.

ANALYSIS

Motion to Compel

“In California, discovery may be obtained from a nonparty through an oral deposition, a written deposition, or a deposition for the production of business records and things. (Code Civ. Proc., § 2020.010, subd. (a).)” (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1030 (“Board of Registered Nursing”).) “To pursue the deposition of a nonparty, a party must generally serve a deposition subpoena.” (Ibid.).)

“‘A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.’ [Citation.]” (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1030.)

“‘If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.’ (Code Civ. Proc., § 2025.480, subd. (a).)” (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1031.) “‘[D]iscovery conducted by

way of a business records subpoena is a “deposition.”’ [Citation.]” (Id. at pp. 1031-1032.) “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1.)

            On October 26, 2023, Defendant personally served Desert Bloom with a deposition subpoena to produce various documents pertaining to the property, with a production date of November 27, 2023, 2023.  (Ex. 1 to Sprague Decl.)  As of the January 25, 2024 filing date of the motion, Desert Bloom had not produced any documents, served objections, moved to quash, moved for a protective order, or otherwise substantively responded to the subpoena.  (Sprague Decl. ¶ 5; Engquist Decl. ¶¶ 2-6 and Exs. A-B.)  Accordingly, the Court finds that Desert Bloom has failed to comply with the subpoena.

Sanctions

            Defendant seeks monetary sanctions in the amount of $1,000 pursuant to Code of Civil Procedure section 2023.050 and an additional $3,055 for reasonable attorneys’ fees and costs incurred in bringing the instant motion.           

            Section 2023.050 provides that “in addition to any other sanctions imposed pursuant to this chapter, the court shall impose a one-thousand dollar ($1,000) sanction if the production is made within seven days before the hearing on a motion to compel brought pursuant to section 2025.480. 

            Here, because no production occurred prior to seven days before the hearing, the Court imposes the mandatory $1,000 sanction.

            Defendant also seeks its reasonable attorneys’ fees and costs incurred in bringing the motion, pursuant to Code of Civil Procedure section 1987.2, which provides that “the court may in its discretion award the amount of the expenses incurred in making or opposing the motion, including reasonable attorneys’ fees, if the court finds the motion was made or opposed in bad faith or without substantial justification[…]” 

            Here, Desert Bloom did not oppose the motion.  As such, the Court cannot make a finding that the motion was opposed in bad faith or without substantial justification.  Therefore, the Court declines to award additional sanctions.

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to compel Desert Bloom’s compliance with the deposition subpoena within 30 days of notice of the Court’s order. 

The Court further awards mandatory monetary sanctions against Desert Bloom, payable to Defendant, by and through Defendant’s counsel, in the amount of $1,000, pursuant to Code of Civil Procedure section 2023.050 within 30 days of notice of the Court’s order.

Defendant shall provide notice of the Court’s order and file a proof of service of such.

DATED:  March 6, 2024                                                        ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court