Judge: Michael P. Linfield, Case: 19STCV45653, Date: 2023-02-08 Tentative Ruling

The Court often posts its tentative several days in advance of the hearing. Please re-check the tentative rulings the day before the hearing to be sure that the Court has not revised the ruling since the time it was posted.

Please call the clerk at (213) 633-0154 by 4:00 pm. the court day before the hearing if you wish to submit on the tentative.

Case Number: 19STCV45653    Hearing Date: February 8, 2023    Dept: 34

SUBJECT:         Motion to (i) Quash Subpoena Duces Tecum Served on Non-Retained Experts First Identified in Plaintiffs’ Amended Designation of Experts, Served January 3, 2023, and All Depositions Unilaterally Set After the Deposition Discovery Cutoff for Non-Retained Experts; (ii) Stay the Taking of the Depositions; and (iii) Preclude the Taking of the Depositions[; and] (iv) for Monetary Sanctions in the Amount of $1,260.00 against Plaintiffs’ Counsel and Plaintiffs

Moving Party:  Defendants Anita Kovacic, BLK Properties, LLC, and Marine View Management, Inc.

Resp. Party:    Plaintiffs Nicole Abramson and Douglas Stork

Defendants’ Motion is GRANTED in part. The Motion is GRANTED as to quashing the subpoenas served upon Marko Neri, Brent Graham, Gabi Zaarur, Dale Cornett, and Alfonso Arroyo. The Motion is DENIED as moot as to quashing the subpoena served upon David Gold.

The Court declines to award monetary sanctions.

PRELIMINARY COMMENTS

The Court is writing this tentative on February 6,2023.  There have been 12 hearings in this case in the past two months:

·                    12/6         The Court heard two motions to compel filed by Defendant

·                    12/13       The Court heard Plaintiffs’ motion for a protective         order

·                    12/13       The Court heard Defendants’ ex parte to complete an IME

·                    12/20       The Court heard Defendants’ motion to conduct an IME

·                    12/23       The Court heard Plaintiffs’ ex parte for leave to file an SAC

·                    01/03       The Court heard two motions to compel filed by Plaintiffs

·                    01/04       The Court heard Defendants’ ex parte re Plaintiff’s expert witnesses

·                    01/04       The Court heard Plaintiffs’ ex parte re non-retained experts

·                    01/10       The Court heard Plaintiffs’ ex parte to continue trial

·                    01/20       The Court heard two motions filed by Plaintiffs to continue trial and file an SAC

·                    01/31       The Court heard Defendants’ motion to quash

·                    02/06       The Court heard Plaintiffs’ motion to compel a deposition

Plaintiff has just filed two additional ex partes to be heard on February 7, 2023.  The Court has repeatedly admonished all counsel for their lack of professionalism in bringing motion after motion before this Court.  No case should require 18 motions and ex partes in two months – particularly a non-complex case such as this warranty of habitability action that is scheduled for a five-day jury trial.  The Court hopes that this written word to the wise will be sufficient.

BACKGROUND:

On December 17, 2019, Plaintiffs Nicole Abramson and Douglas Stork filed their Complaint against Defendants Anita Kovacic, Marine View Management, Inc., and BLK Properties, LLC on causes of action for breach of implied warranty of habitability, negligence, and breach of contract. This case regards damages Plaintiffs allege to have suffered and continue to suffer due to the mold in their home.

On April 6, 2021, Plaintiffs filed their First Amended Complaint.

On June 8, 2021, Defendants filed their Answer to the First Amended Complaint.

On January 5, 2023, Defendants Anita Kovacic, BLK Properties, LLC, and Marine View Management, Inc. filed their Motion to (i) Quash Subpoena Duces Tecum Served on Non-Retained Experts First Identified in Plaintiffs’ Amended Designation of Experts, Served January 3, 2023, and All Depositions Unilaterally Set After the Deposition Discovery Cutoff for Non-Retained Experts; (ii) Stay the Taking of the Depositions; and (iii) Preclude the Taking of the Depositions[; and] (iv) for Monetary Sanctions in the Amount of $1,260.00 against Plaintiffs’ Counsel and Plaintiffs. Defendants concurrently filed two volumes of Exhibits.

On January 23, 2023, Plaintiffs filed their Opposition.

On January 31, 2023, the Court denied Defendants’ prior motion to quash, which was filed January 5, 2023.

On February 1, 2023, Defendants filed their Reply.

ANALYSIS:

I.           Legal Standard

“Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).)

“Any party shall be entitled as a matter of right to complete discovery proceedings pertaining to a witness identified under Chapter 18 (commencing with Section 2034.010) on or before the 15th day, and to have motions concerning that discovery heard on or before the 10th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.030.)

II.        Discussion

A.      The Motion

Defendants move the Court to quash subpoenas duces tecum issued to Marko Neri, Brent Graham, Gabi Zaarur, Dale Cornett, David Gold, and Alfonso Arroyo. (Motion, pp. 1:15-26, 2:1–2.) Among other points raised in their briefs, Defendants argue that the depositions were set after the discovery cutoff date. (Motion, p. 4:24–26.)

Plaintiffs only argue that the Court allow the deposition of David Gold to be completed.  They do not make any arguments regarding the other depositions.

The Court has already resolved the issue of Mr. Gold’s deposition. The Court allowed Plaintiffs to complete their deposition of Mr. Gold prior to Trial. (Minute Order dated January 31, 2023, p. 4.)  The Court denies as moot the Motion as to quashing the subpoena served upon Mr. Gold.

However, the Court agrees with Defendants regarding the rest of the depositions.

The current date for Trial is February 27, 2023; this is because the Court granted an Ex Parte Application to Continue Trial. The Court Order dated January 10, 2023 explicitly continued Trial from January 23, 2023 to February 27, 2023 but did not continue the discovery cutoff dates. This is in contrast to a previous Court Order dated June 1, 2022, which continued Trial from August 15, 2022 to January 23, 2022, and, pursuant to the Parties’ Stipulation signed May 25, 2022, continued discovery cut-off dates to follow the new Trial date. Fifteen days prior to January 23, 2023 was January 8, 2023, which was a Sunday; therefore, no new depositions should have been noticed after January 9, 2023.

The deposition of Marko Neri was noticed for January 12, 2023. (Defendants’ Exhibits, Vol. 1, pp. 79, 87.) The deposition of Dale Cornett was noticed for January 18, 2023. (Id. at pp. 100, 102.) The deposition of Gabi Zaarur was noticed for January 17, 2023. (Id. at pp. 108, 110.) The deposition of Brent Graham was noticed for January 13, 2023. (Id. at pp. 116, 118.) The deposition of Alfonso Esquivel Arroyo was noticed for January 10, 2023. (Reply, Ex. 5.)

Each of these depositions were noticed after the discovery cutoff date without leave of court. Unlike the deposition of David Gold, there is no evidence before the Court that the depositions had been legally completed prior to the discovery cutoff date. Indeed, Plaintiffs do not make any arguments regarding these depositions.

The Court grants Defendants’ Motion as to quashing the subpoenas served upon Marko Neri, Brent Graham, Gabi Zaarur, Dale Cornett, and Alfonso Arroyo.

B.      Sanctions

1.       Legal Standard

“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 any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1, subd. (a).)

“Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a).)

2.       Analysis

The Court declines to award sanctions for this motion.

III.     Conclusion

Defendants’ Motion is GRANTED in part. The Motion is GRANTED as to quashing the subpoenas served upon Marko Neri, Brent Graham, Gabi Zaarur, Dale Cornett, and Alfonso Arroyo. The Motion is DENIED as moot as to quashing the subpoena served upon David Gold.