Judge: Michael E. Whitaker, Case: 24SMCV02209, Date: 2024-09-10 Tentative Ruling

Case Number: 24SMCV02209    Hearing Date: September 10, 2024    Dept: 207

TENTATIVE RULING

MOTION

On July 29, 2024, Plaintiffs Michael Kibler and Ann Kibler (“Plaintiffs”) filed the operative First Amended Complaint (“FAC”) against Defendants Liveone, Inc.; Podcastone, Inc.; Robert Ellin; Joshua Hallbauer; Aidan Crotinger; Splitmind LLC; Siamak Khakshooy; Tanaz Koshki; and ABC Corps (“Defendants”) alleging five causes of action for (1) violation of Beverly Hills Municipal Zoning Laws; (2) public nuisance; (3) private nuisance; (4) intentional infliction of emotional distress; and (5) aiding and abetting tort, for allegedly operating a commercial office, business event center, professional podcast interview and music recording studio in the middle of a Beverly Hills residential community.  (FAC ¶ 1.)

Plaintiffs now move for an order compelling third-party Crave LA LLC (“Crave”) to produce documents requested pursuant to a business records subpoena and to impose monetary sanctions in the amount of $4,260 for failure to comply with the subpoena.  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.)

            Crave is a catering company that Plaintiffs contend was photographed at a corporate event Plaintiffs allege Defendants hosted in violation of Beverly Hills zoning laws.  (Ex. D to Halwani Decl.)  On June 12, 2024, Plaintiffs personally served a deposition subpoena for the production of business records on Crave’s registered agent, requesting production on July 12, 2024.  (Exs. A, C to Halwani Decl.)  The Deposition Subpoena requested the following:

·       All DOCUMENTS sufficient to identify the PERSON who hired YOU for catering services at 516 N. Beverly Dr., Beverly Hills, CA 90210 on any day since 2023, including on April 27, 2024, March 28, 2024 and February 3, 2024.

·       All DOCUMENTS related to any catering services performed at 516 N. Beverly Dr., Beverly Hills, CA 90210.

·       All DOCUMENTS related to any catering services performed for LiveOne, Inc.

(Ibid.)

            In response, the owner of Crave sent Plaintiffs a letter, indicating, “After conducting a thorough review of our business records and databases, we have determined that Crave LA LLC has never engaged in any business transactions or maintained any dealings with LIVEONE, INC. Consequently, we do not possess any records, documents, or information pertaining to the defendant that would be responsive to the subpoena.”  (Ex. B to Halwani Decl.) 

Plaintiffs’ counsel responded that Crave’s company van was photographed at the subject address and pointing out Crave did not formally respond to the subpoena or otherwise verify or declare under penalty of perjury that no responsive documents exist to the other categories of requested documents.  (Ex. D to Halwani Decl.) 

Therefore, Plaintiffs have met their burden to demonstrate that they are entitled to the requested documents and neither Defendants nor Crave have opposed the motion or otherwise demonstrated otherwise.

Sanctions

            “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc., § 2025.480, subd. (j).)

            Here, Crave did not oppose the motion to compel.  Therefore, mandatory sanctions under section 2025.480, subd. (j) are not warranted.  Further, the Court notes that Plaintiffs seek monetary sanctions under Code of Civil Procedure section 1987.1, subdivision (a).  But that section does not authorize the issuance of monetary sanctions.   (See Notice of Motion.) 

            Plaintiffs also seek sanctions for misuse of the discovery process.  Code of Civil Procedure section 2023.030 provides, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:

(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  (Code Civ. Proc., § 2023.030, subd. (a).)

            Misuses of the discovery process include “Failing to respond or submit to an authorized method of discovery.”  (Code Civ. Proc. § 2023.010, subd. (d).)  But Article 4 (sections 2025.410-2025.480) does not authorize sanctions for misuse of the discovery process. [1]

            Therefore, Plaintiffs’ request for monetary sanctions is denied.

CONCLUSION AND ORDER

Therefore, the Court grants in part Plaintiffs’ motion to compel compliance with the subject subpoena for business records, and orders Crave LA LLC to comply with the subject subpoena within 30 days of notice of the Court’s order.   The Court denies Plaintiffs’ motion to compel regarding the request for monetary sanctions. 

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

DATED:  September 10, 2024                                               ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court