Judge: Michael E. Whitaker, Case: 24SMCP00544, Date: 2024-12-04 Tentative Ruling

Case Number: 24SMCP00544    Hearing Date: December 4, 2024    Dept: 207

TENTATIVE RULING

BACKGROUND

            The underlying lawsuit, pending before the Supreme Court of the State of New York in the County of Kings, Index No. 533054/2023, captioned Sam Karawia v. Michael Bonini, stems from a dispute between Plaintiff Sam Karawia (“Petitioner”) and his son-in-law, Defendant Michael Bonini (“Bonini”).  The underlying verified complaint alleges Bonini defrauded Petitioner in a cryptocurrency investing scheme.  (Ex. 2 to Kealey Decl. at Schedule A, Ex. 1.)

            It was revealed in discovery that Respondent Caitlin Hart (“Respondent”) was engaged in an extramarital affair with Bonini while Bonini was married to Petitioner’s daughter, and Petitioner believes Bonini absconded with Petitioner’s money to California, where Bonini now resides and shares a child with Respondent.  (Kealey Decl. ¶ 4.)  Petitioner also contends Respondent had access to one of Bonini’s cryptocurrency exchange accounts and traded cryptocurrency on his behalf.  (Kealey Decl. ¶ 5.)  They also co-manage a Texas limited liability company, Dolce Far Niente LLC.  (Kealey Decl. ¶ 6.)

            As a result, Petitioner propounded a subpoena on Respondent in Los Angeles County, pertaining to the New York action.  (Kealey Decl. ¶¶  8-9 and Exs. 2-3.)  Although Respondent communicated with counsel for Petitioner, Respondent did not formally object or otherwise respond to the subpoena.  (Kealey Decl. ¶¶ 10-14.)

            Petitioner has now filed the instant petition to compel Respondent’s compliance with the foreign subpoena and for monetary sanctions.  Respondent opposes the petition and Petitioner replies.

ANALYSIS   

Code of Civil Procedure sections 2029.100 et seq. pertain to discovery in California pertaining to actions pending outside California.  Section 2029.600, subdivision (a) provides:  “If a dispute arises relating to discovery under this article, any request for a protective order or to enforce, quash, or modify a subpoena, or for other relief may be filed in the superior court in the county in which discovery is to be conducted and, if so filed, shall comply with the applicable rules or statutes of this state.” 

Respondent contends that the subpoena is procedurally defective because Petitioner did not personally serve it on her and it requires attendance at a deposition in New York.  Petitioner argues that Respondent waived any objection to the subpoena by failing to respond to it.

While the Court agrees that a party served with a subpoena waives any objections to it by failing to timely respond, the Court cannot enforce a subpoena that is defective on its face.

Regarding proof of personal service, Code of Civil Procedure section 2029.400 provides, “A subpoena issued under this article shall be personally served in compliance with the law of this state, including, without limitation, Section 1985.” 

Here, Petitioner has provided a notarized “affidavit of service” indicating that Allan Bailey personally served the subpoena on Respondent in Los Angeles on July 1, 2024.  (Ex. 3 to Kealey Decl.)  The notary declares under penalty of perjury that the declarant proved their identity and acknowledged that they executed the statement in an authorized capacity. 

However, Code of Civil Procedure section 2015.5 provides, “Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury […]” 

The notary’s statement does not indicate that Bailey swore the truth of the statement to her under penalty of perjury under the laws of the State of California.

Moreover, the subpoena, on its face, requires Respondent’s attendance at a deposition in New York.  Code of Civil Procedure section 2025.250 requires, “Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence.”  New York is unquestionably more than 150 miles from Respondent’s residence.

Therefore, the Court cannot enforce compliance with a subpoena that is defective on its face.  

Further, because the Court finds the subpoena to be defective, it finds that Respondent was substantially justified in not responding to it, and that monetary sanctions are not warranted.

CONCLUSION AND ORDER

            Finding the subpoena at issue to be defective on its face, the Court denies the Petition to Compel Compliance and for Sanctions in its entirety without prejudice. 

            Petitioner shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  December 4, 2024                                                  ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court