Judge Randolph M. Hammock, Case Number: 23STCV06365, Date: 2023-12-12 Tentative Ruling

Judge: Randolph M. Hammock, Case: 23STCV06365, Date: 2023-12-12 Tentative Ruling

Plaintiff Zaftig, LLC, as the owner of various state and federal trademarks based on the “Doja” cannabis brand, brings this action against Defendant Ryan Bartholomew for trademark infringement and related causes of action. Plaintiff alleges Defendant has used and continues to use the Doja trademark to sell products in the marketplace. Plaintiff asserts causes of action for (1) trademark infringement, (2) palming off, (3) violation of Business and Professions Code section 17200, (4) violation of California’s False Advertising Law, and (5) declaratory and injunctive relief.

Defendant Bartholomew has filed a Cross-Complaint against Zaftig and its owner, Brett Olson. Bartholomew alleges he, and not Zaftig, created the Doja trademark. Bartholomew alleges that Zaftig had a non-exclusive licensing agreement with Bartholomew to sell Doja products. Cross-Complainant asserts thirteen causes of action against Zaftig and Olson seeking to, among other things, cancel the trademarks.

Defendant/Cross-Complainant Bartholomew’s Motion to Quash is DENIED. The third-party is ordered to turn over all records consistent with the Subpoena for the period of January 1, 2018, to present.

A court may quash a subpoena entirely or partially, and issue an order to protect parties, witnesses or consumers from unreasonable or oppressive demands including violations of privacy. (Code Civ. Proc., § 1987.1.)

Defendant/Cross-Complainant Ryan Bartholomew moves for an order quashing the Subpoena Duces Tecum served by Plaintiff and Cross-Defendant Zaftig, LLC on third party Crown Genetics, LLC, a California limited liability company. The subpoena at issue seeks from the third party:

(1) All DOCUMENTS, including COMMUNICATIONS, in YOUR possession which RELATE TO any and all COMMUNICATIONS with RYAN BARTHOLOMEW.

(2) All DOCUMENTS, including COMMUNICATIONS, in YOUR possession which RELATE TO any and all COMMUNICATIONS with any third-party regarding RYAN BARTHOLOMEW.

(3) All DOCUMENTS, including COMMUNICATIONS, maintained by YOU that pertain to any sales of any LICENSED COMMERCIAL CANNABIS PRODUCTS that contain the name or word "DOJA" in any form.

(4) All DOCUMENTS, including COMMUNICATIONS, maintained by YOU that pertain to YOUR possession of any LICENSED COMMERCIAL CANNABIS PRODUCTS that contain the name or word "DOJA" in any form.

(5) All DOCUMENTS, including COMMUNICATIONS, in YOUR possession which RELATE TO any and all COMMUNICATIONS with RYAN BARTHOLOMEW regarding the "DOJA" brand.

(6) All DOCUMENTS, including COMMUNICATIONS, in YOUR possession which RELATE TO any and all COMMUNICATIONS with any third-party regarding the "DOJA" brand.

Bartholomew contends the subpoena is improper and should be quashed “because the requests in Plaintiff’s subpoena seek documents irrelevant to this action and having no bearing on the issues herein.” (Mtn. 2: 4-6.) He asserts the subpoena is “a fishing expedition which makes no effort to limit itself in topical or temporal scope.” (Id. 2: 11-12.) Bartholomew finally contends the subpoena “impermissibly invade[s] the privacy of the Non-Party and other unknown individuals by seeking Non-Party’s business records and communications including those with third-parties.” (Id. 4: 17-19.)

Zaftig opposes the motion to quash. It contends the categories of documents sought are reasonably calculated to lead to the discovery of admissible evidence. Zaftig notes the nature of the trademark dispute here centers on the first lawful commercial use of the Trademarks. The existence and nature of potential licensing agreements with third parties like Crown Genetics goes to the heart of this issue. Zaftig also argues the temporal scope of the subpoena is valid, as it only seeks documents going back to January 1, 2018.

Evidence is relevant if it “ha[s] any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code § 210.) “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010; Davies v. Superior Court (1984) 36 Cal.3d 291, 301 [“discovery is not limited to admissible evidence”].)

“The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Ct. (2017) 3 Cal. 5th 531, 552.)

Here, the records sought are, at the very least, “reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) The existence and nature of potential communications, dealings, and licensing agreements with third parties like Crown Genetics goes to the question of the first lawful commercial use of the Trademarks at issue.

Moreover, when balancing the parties’ privacy interests against Zaftig’s interest in discovering documents that are particularly relevant to the claims and cross-claims, this court finds the balance shifts in favor of disclosure here.

While Zaftig states in the opposition that it only seeks documents from January 1, 2018, to present, the subpoena appears to lack any such temporal limitation. This time period is reasonable given that California did not recognize cannabis trademarks until this time. Thus, once accounting for this temporal limitation, the subpoena is valid.

This conclusion is consistent with the legislature’s “very liberal and flexible standard of relevancy,” such that any “doubts as to relevance should generally be resolved in favor of permitting discovery.” (Williams, supra, 3 Cal. 5th at 542.)

Accordingly, Bartholomew’s Motion to Quash is DENIED. The third-party is ordered to turn over all records consistent with the Subpoena for the period of January 1, 2018, to present.

In making an order pursuant to California Code of Civil Procedure 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).)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.