Judge: Robert S. Draper, Case: 21STCV36518, Date: 2022-08-19 Tentative Ruling

Case Number: 21STCV36518    Hearing Date: August 19, 2022    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Defendant Viktor Serralde’s Motion to Quash Deposition Subpoena is CONTINUED for 45 days. Both parties’ Requests for Monetary Sanction will also be considered at that time if not withdrawn, which the Court expects they will be after counsel meet and confer in good faith as officers of the court.

The parties are ordered to meet and confer and, within thirty days, file a joint declaration detailing any issues that remain in narrowing the subject subpoena.

FACTUAL BACKGROUND

This is an action for fraudulent business practices. The operative First Amended Complaint (“FAC”) alleges as follows.

Plaintiff Juan Luna (“Plaintiff”) is a Spanish-speaking homeowner residing in Los Angeles. (FAC ¶ 40.) In June 2017, Defendant Viktor Serralde (“Serralde”), a salesperson for Defendant Cali One Services, Inc. (Cali One”), contacted Luna offering to the install a photovoltaic system (“PVS”) in Luna’s home. (FAC ¶ 41.) Serralde represented to Luna that the system would be free, pursuant to a new Property Assessed Clean Energy (“PACE”) financing system that the Los Angeles County Board of Supervisors recently adopted. (Ibid.) Defendant Cali One immediately began installation of the PVS on Luna’s property. (FAC ¶ 41.) The system has never worked and has never been connected. (FAC ¶ 42.) Over a year later, Luna discovered that the installation of the defective PVS increased his property tax bill by $3,300.00. (FAC ¶ 43.) Upon further investigation, Luna discovered that his electronic signature had been forged on the PACE contract through a fake email account. (Ibid.) Luna did not realize that his property tax rate would increase in such a manner and believed the system would be free. (FAC ¶ 45.)

PROCEDURAL HISTORY

On October 4, 2021, Plaintiff filed the Complaint asserting eight causes of action:

1.    Fraud;

2.    Negligent Misrepresentation;

3.    Consumer Legal Remedies Act (CLRA);

4.    Unfair Competition Law;

5.    Civil Code § 1632;

6.    Breach of Implied Warranty of Merchantability;

7.    Civil Code § 1689; and

8.    Declaratory Relief

On October 13, 2021, the matter was reassigned to the instant Department 78.

On October 18, 2021, Plaintiff filed the operative First Amended Complaint, asserting the same eight causes of action, but adding a Ninth Cause of Action for Tort of Another.

On March 4, 2022, Serralde filed the instant Motion to Quash.

On June 14, 2022, Plaintiff filed an Opposition.

On June 20, 2022, Serralde filed a Reply.

DISCUSSION

      I.          Motion to quash

Serralde moves to quash Plaintiff’s subpoena issued to Google, LLC (“Google”). The subpoena requests extensive information regarding the email address, serraldemedia@gmail.com, which Plaintiff alleges Serralde used to electronically forge Plaintiff’s signature. The subpoena requests, in relevant part:

·      The identity of the users/subscribers of the subject email address, including but not limited to documents that provide all names, mailing addresses, phone numbers, billing information, date of account creation, account information, alternate email addresses, and all other identifying information associated with the email address.

·      The usage of all the listed email addresses, including but not limited to documents that provide IP logs, IP address information at time of registration and subsequent usage, computer usage logs, or other means of recording information concerning the email or Internet usage of the email address.

·      All user/subscriber and login records pertaining to the email address, including but not limited to all user provided identification information, current account information, and credit card information and/or bank account information used for payment of the service. (Serralde Decl., Ex. A.)

Serralde argues that the subpoena is grossly overbroad, and requests “all records, information, e-mails and data with respect to Serralde and his email address . . . going back to the email’s creation . . . without any limitation by date, subject, or person.” (Motion at p. 7.)

Additionally, Serralde notes that he uses the email in question for correspondence regarding his finances, and for communications with his attorneys that are privileged in this matter. (Motion at p. 8.)

Finally, Serralde argues that the subpoena was unnecessary as there are only seven emails in the subject email account relevant to the instant action, and Serralde has already disclosed those emails. (Serralde Decl., Ex. B.)

In response, Plaintiff argues that Serralde grossly misrepresents the scope of the subpoena. Plaintiff notes that the subpoena does not specifically seek the subject email address’s messages, and that Google does not provide emails in response to subpoenas. (Opposition at p. 5.) Plaintiff contends that the subpoena is intended only to identify the user and owner of the account and who else has access to it, IP addresses used to access the email account, and additional identifying information that email account providers might require to open an email account. (Opposition at p. 10.)

Finally, Plaintiff argues that the subpoena was intended only to request Google’s business records, which do not include Serralde’s personal email messages or any of the other content that Serralde objects to.

Upon review of the moving papers, it is clear that Plaintiff seeks information that is directly relevant to the instant matter. However, Serralde is not incorrect in noting that the language of the subpoena itself is extremely broad and could conceivably include irrelevant or privileged information.

Simply put, the language of the subpoena could easily be narrowed to specify only the information that Plaintiff accurately identifies as relevant to this matter. Judicial intervention is not necessary to accomplish this.

Accordingly, the Court orders the parties to meet and confer and to modify the subpoena such that it could not be seen as seeking privileged or irrelevant personal information. The parties are to, within thirty days, file with the Court a declaration describing any disputes that remain following this meet and confer. The Court will consider this declaration at the next hearing.

Finally, the Court notes that both parties request monetary sanctions against their opposing counsel. The Court does not feel that monetary sanctions are appropriate at this time, as Serralde accurately notes that the subpoena could conceivably be seen as requesting privileged and irrelevant personal information, and Plaintiff accurately notes that the chance of such information being included in Google’s response is slight, and the subpoena seeks information directly relevant to the instant matter. With that said, the Court will reconsider the issue of sanctions if it appears that either party does not make a good faith effort to agree upon a narrower and mutually agreeable subpoena.   

DATED:  August 19, 2022

___________________________

Hon. Robert S. Draper

Judge of the Superior Court