Judge Randolph M. Hammock, Case Number: 23STCV08151, Date: 2023-11-02 Tentative Ruling

Judge: Randolph M. Hammock, Case: 23STCV08151, Date: 2023-11-02 Tentative Ruling

Plaintiff Derek Deakin alleges he retained attorney Defendant Robert Kahn to represent him in a personal injury action. Plaintiff alleges Defendant breached the parties’ fee agreement be retaining a portion of the settlement owed to Plaintiff.

Defendant has filed a Cross-Complaint against Plaintiff for declaratory relief. Defendant/Cross-Complainant seeks a judicial declaration over the parties’ rights to $269,984.74 currently held in Defendant/Cross-Complainant’s client trust account.

Cross-Complainant now moves to quash a subpoena issued to US Bank. Cross-Defendant filed a response on October 18, 2023, and a supplemental response on November 27, 2023.

An award of monetary sanctions is issued in favor of Defendant/Cross-Complainant Kahn, and against Plaintiff/Cross-Defendant Deakin, in the total amount of $60.00 for costs. The request for attorney's fees is DENIED.

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 Kahn moves to quash the subpoena issued on US Bank, seeking records from Kahn’s client trust account. Kahn contends the records sought pertain only to other clients (and not Derek Deakin), and therefore, are unrelated to the instant action.

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”].)

Plaintiff/Cross-Defendant Deakin opposes the motion. Deakin admits this is his third attempt to subpoena the records from US Bank. Based on the timing and amount of the checks deposited into Kahn’s client trust account, Deakin theorizes that the money may be linked to his case. Deakin contends he is “reasonably suspicious Kahn is self-dealing and strongly believes Kahn is utilizing a diversion to distract Deakin” from the amounts he is owed. (Response 9: 24-26.)

Deakin’s theory lacks substance. It appears the amount of money is not in dispute. The parties know what the case settled for, how much has been disbursed to Deakin, and how much has gone toward medical liens. The only question is how or if the remaining disputed fund should be apportioned.

Considering this, the settlements or funds retained by Kahn for other clients are plainly irrelevant to the present case between Deakin and Kahn. Deakin contends otherwise, but has failed to articulate a clear basis for subpoenaing the records for Kahn’s other clients. Therefore, the subpoena is not “reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.)

The court is mindful that the legislature promotes a “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.) But here there is no doubt—the records sought are not relevant to this case.

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).)

Deakin filed two oppositions to the motion to quash: a response and a supplemental response. Neither articulated any valid basis to subpoena records from US Bank for matters wholly unrelated to Deakin’s case.

Kahn seeks $15,000 in sanctions against Deakin, calculated as follows: “Kahn expended 10 hours reviewing the Subpoena and the US Bank account records to and communicating with representatives of US Bank to determine whether any of the requested records could possibly be relevant to this case. He expended 2 hours preparing this motion and anticipate spending 1 hour preparing a Reply to Deakin’s anticipated opposition, and 2 hours preparing for and attending the hearing of this motion.” (Mtn. 4: 16-20.) Kahn “values his time at no less than $1,000 per hour based on his 44 years of trial experience.” (Id. 4: 20-21.)

However, as a general rule, attorneys representing themselves are not entitled to recover attorney’s fees, either by contract or sanctions. (See Trope v. Katz (1995) 11 Cal. 4th 274, 292 [reasoning that the “usual and ordinary meaning of the words ‘reasonable attorney's fees’ is the consideration that a litigant pays or becomes liable to pay in exchange for legal representation”].)

Therefore, attorney Kahn cannot recover attorney’s fees for acts time incurred in pro per. The sanctions are limited to the reasonable costs incurred in bringing this motion, in this case, the $60.00 filing fee.

Accordingly, an award of monetary sanctions is issued in favor of Defendant/Cross-Complainant Kahn, and against Plaintiff/Cross-Defendant Deakin, in the total amount of $60.00 in costs. This Court makes no findings as to whether the claimed 15 hours was a “reasonable amount of time” in connection to this motion, nor does it make any finding as to whether the requested $1,000.00 per hour was a reasonable hourly rate.