Judge: Robert B. Broadbelt, Case: 21STCV10823, Date: 2023-09-06 Tentative Ruling

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Case Number: 21STCV10823    Hearing Date: March 12, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant Wells Fargo Bank, N.A.  

RESPONDING PARTY:       Unopposed

Motion to Compel Compliance with Deposition Subpoena and for Sanctions

The court considered the moving papers filed in connection with this motion.  No opposition papers were filed.

DISCUSSION

Defendant Wells Fargo Bank, N.A. (“Defendant”) moves the court for an order (1) compelling nonparty Cervenka & Lukes Mortgage Brokers (“CLMB”) to comply with Defendant’s Deposition Subpoena for Business Records by producing, without objections, all documents responsive to the document requests set forth therein, and (2) awarding monetary sanctions in favor of Defendant and against CLMB in the amount of $4,539.

As a threshold matter, the court finds that Defendant properly served CLMB with notice of the new hearing date on this motion by serving CLMB’s counsel, by personal service, with its “Notice of Continuance of Hearing on Motion to Compel Compliance with Deposition Subpoena for Business Records to Cervenka & Lukes Mortgage Brokers.”  (Jan. 30, 2024 Notice of Continuance, pp. 6-7 [proof of service]; Nov. 8, 2023 Stipulation, ¶ 8 [“Plaintiff’s counsel informed Defendants’ counsel that Plaintiff’s counsel also represented Non-Parties John R. Lukes and Cervenka & Lukes Mortgage Brokers”]; Cal. Rules of Ct., rule 3.1346.)

The court finds that Defendant has shown that CLMB failed to fully comply with the Deposition Subpoena for Production of Business Records and therefore grants Defendant’s motion to compel CLMB’s compliance with the deposition subpoena.  (Code Civ. Proc., § 2025.480, subd. (a).) 

Although CLMB produced some responsive documents to Defendant, Defendant has presented evidence showing that the documents (1) appeared to be incomplete (e.g., because some of the emails stated “Quoted text hidden”), and (2) were not produced in the format specified by the subpoena.  (Lowe Decl., ¶¶ 7-8; Lowe Decl., Ex. A, Deposition Subpoena, Attachment 3 [instructions requiring ESI to be produced in its native format].)  The court also notes that CLMB did not file an opposition with the court objecting to the document requests.  Thus, the court finds that CLMB failed to produce documents, electronically stored information, or tangible things under CLMB’s control that are responsive to the document demands specified in the Deposition Subpoena for Production of Business Records.  (Code Civ. Proc., § 2025.480, subd. (a).)  

The court finds that the circumstances presented would make the imposition of sanctions unjust and therefore denies Defendant’s request for monetary sanctions against CLMB.  (Code Civ. Proc., § 2025.480, subd. (j).)

ORDER

            The court grants in part defendant Wells Fargo Bank, N.A.’s motion to compel compliance with deposition subpoena for business records and for sanctions as follows.

            The court orders Cervenka & Lukes Mortgage Brokers to produce to defendant Wells Fargo Bank N.A. (1) all documents, electronically stored information, and tangible things under Cervenka & Lukes Mortgage Brokers’ control that are responsive to the requests for production described in section 3 of the Deposition Subpoena for Production of Business Records issued to Cervenka & Lukes Mortgage Brokers by Wells Fargo Bank, N.A. on August 18, 2022, and (2) an affidavit of its custodian of records or other qualified person in compliance with Evidence Code section 1561, as required by Code of Civil Procedure section 2020.430, within 30 days of the date of service of this order.  The court orders that any electronically stored information shall be produced in the format specified by the Deposition Subpoena for Production of Business Records issued to Cervenka & Lukes Mortgage Brokers by Wells Fargo Bank, N.A. on August 18, 2022.

The court denies defendant Wells Fargo Bank, N.A.’s request for monetary sanctions.

The court orders defendant Wells Fargo Bank, N.A. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  March 12, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court