Judge Ronald F. Frank, Case 19STCV04924 2023-03-30 Tentative Ruling

Judge: Ronald F. Frank, Case: 19STCV04924, Date: 2023-03-30 Tentative Ruling

Case Number: 19STCV04924 Hearing Date: March 30, 2023 Dept: 8

Tentative Ruling

HEARING DATE: March 30, 2023¿

CASE NUMBER: 19STCV04924

CASE NAME: Jeffery Cook v. Nautilus, Inc., et al

MOVING PARTY: Defendant, Nautilus, Inc.

RESPONDING PARTY: None.

TRIAL DATE: None Set.

MOTION:¿ (1) Motion to Quash Subpoena to Wells Fargo Bank

(2) Motion to Compel Deposition

Tentative Rulings: (1) Motion to Quash to be ARGUED

(2) Motion to Compel 3rd Party Deposition is GRANTED

I. BACKGROUND¿

A. Factual¿

On February 14, 2019, Plaintiff filed this bodily injury action against Defendants. Plaintiff’s action is a products liability case in which he alleges he suffered a traumatic brain injury resulting in loss of income and permanent loss of earning capacity. In response to Form Interrogatories, Plaintiff disclosed the identity of Larry Pitkin (“Mr. Pitkin”) as a witness who will support his loss of income claim. Nautilus, Inc. (“Defendant’) personally served Mr. Pitkin at his home with two deposition subpoenas yet Mr. Pitkin has failed to appear for deposition. Therefore, Defendant seeks an order finding Mr. Pitkin in contempt, compelling Mr. Pitkin to appear for deposition within 20 days of the date of the Court’s Order and allowing Defendant to serve the Order by registered mail or other method that confirms delivery of the Order at Mr. Pitkin’s home.

B. Procedural

On September 14, 2022, Plaintiff filed a Motion to Quash Defendant’s Subpoena to Wells Fargo Bank NA. On October 24, 2022, Defendant, Nautilus, Inc. filed an opposition brief. Th hearing date was re-scheduled after this matter was reassigned from the PI Hub to the District in which the cause of action arose, in this case Southwest District.

On January 17, 2023, Defendant filed this Motion to Compel the Deposition of Plaintiff’s Witness, Larry Pitkin. No opposition has been filed. On February 22, 2023, Defendant filed an amended notice of motion and Motion to Compel the Deposition of Plaintiff’s Witness, Larry Pitkin. The Court has not received any opposition to the motion.

¿II. ANALYSIS ¿

A. Plaintiff’s Motion to Quash

Legal Standard

Code of Civil Procedure § 1987.1 grants the trial court authority to quash a subpoena when necessary. Code of Civil Procedure § 1987.1 provides: “If a subpoena requires the attendance of a witness or the production of books, documents, 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. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

Discussion

Plaintiff notes that on September 8, 2022, Plaintiff notes that his counsel received a Deposition Subpoena for Production of Business Records to the custodian of records for Wells Fargo Bank, National Association (Wells Fargo). Plaintiff notes that the subpoena requests, “Records re: Jeffrey Cook,” and “Any and all banking and/or financial records, including but not limited to statements, deposits, etc.” Plaintiff argues that this request is so broad as to time and scope as to be an improper invasion of privacy and is oppressive. Plaintiff also asserts that there is no admissible evidence that can be discovered through this channel that cannot be discovered through more appropriate, less invasive channels.

Plaintiff notes that in defense counsel’s September 11, 2022 meet and confer letter, referenced that Plaintiff has not provided any documentation of his pre-incident earnings, earnings history, or earning capacity. Plaintiff further notes that discovery on the issue of Plaintiff’s loss of earnings claim is currently pending the outcome of motions to compel. Plaintiff argus that if Defendant is not satisfied with the responses or documents produced, their remedy is a motion to compel further responses or production of document. Plaintiff also asserts that Defendant is currently moving to compel additional responses. However, Plaintiff argues that it is not permissible to take the extraordinary step of sending a subpoena to Plaintiff’s back to acquire all banking and/or financial records.

In opposition, Defendant argues that the subpoena actually seeks only four years and one month of prior earnings history if Plaintiff’s associations. Defendant also argues that the request cannot be narrowed because Plaintiff has refused to provide any information or documentation relevant to his claims. For example, Defendant notes that Plaintiff has refused to identify where he deposited earned income or what accounts he had during the relevant time periods. Lastly, Defendant contends that Plaintiff’s motion and his refusal to respond to written discovery is an abuse of the discovery process and he should be sanctioned. Defendant notes that Plaintiff claims against Nautilus include claims for loss of income and loss of earning capacity in excess of $2,000,000, yet Plaintiff continues to provide the same objections and non-responses to Nautilus’s discovery request and now moves to quash the subpoena for his bank records.

The Court’s tentative ruling is to ARGUE this motion to quash. Generally, a plaintiff seeking a loss of income claim must provide discovery regarding prior earnings so that experts can evaluate the past earning stream and form opinions as to reasonably likely future income. Here, the state of the record is that Plaintiff has provided no corroborative facts from which an expert or trier of fact could find any loss of income amount. Nor has plaintiff verified in a discovery response where his claimed former income was deposited, for what the Plaintiff’s motion papers describe as a “lucrative career as an Executive Protection Agent.” There has been no production of documents constituting executive protection assignments, schedules, dates, or compensation. Without knowing even if the claimed income stream existed, for what period of time, and proof of the dollar amounts, Defendant cannot prepare its case for mediation, settlement, or trial. By the same token, without providing facts for economic experts to be consider in giving loss of earnings testimony, Plaintiff most likely would be barred from seeking such damages at trial.

In the Court’s view, the SDT to Wells Fargo may be premature, but the hour is getting late for Plaintiff to give verified discovery responses that enable the Defendant to examine the bona fides of the loss of earnings and loss of earning capacity claims. This case has been pending since 2019; the subject incident took place nearly six years ago in April of 2017. The Court will entertain oral argument as to Plaintiff’s offer of proof as to what evidence exists as to the prior earnings stream, i.e., contracts, cancelled checks, bank account records, assignment schedules, emails, licenses, letters, receipts, or other evidence of the claimed “lucrative career.” The Court also will require an offer of proof as to tracing the income stream, e.g., what person or entities paid Plaintiff to be an executive Protection Agent, what form the compensation took (e.g., cash, barter, wire transfers, checks, money orders, etc., and where the money was deposited. If there is no offer of proof to permit Defendant to follow such tracing, the Court would be inclined to DENY the Motion to Quash and permit the SDT to go forward (with some restrictions on its scope) because of the EDD’s identification of the subject Wells Fargo account as a financial institution where money payable to Plaintiff was deposited during the relevant time.

Sanctions

Plaintiff requests sanctions and attorney’s fees against Defendant for a total of $1,800. Defendant argues that Plaintiff’s sanctions should be denied and that this Court should sanction Plaintiff in the amount of $2,280.

The Court denies monetary sanctions at this time.

B. Motion to Compel Deposition of Non-Party Witness

Legal Standard

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.¿ (Code Civ. Proc., § 2020.010.)¿ A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.¿ (Code Civ. Proc., § 2020.020.)¿

Service of a deposition subpoena shall be effected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.¿ (Code Civ. Proc., § 2020.220, subd. (a).)¿ Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.¿ (Code Civ. Proc., § 2020.220, subd. (c).)¿ A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.¿ (Code Civ. Proc., § 2020.240.)¿

A “written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail¿or electronic service¿at an address¿or electronic service address¿specified on the deposition record.”¿ (Cal. Rules of Court, Rule 3.1346.)¿

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, 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. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” (Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-583.)

Discussion

Here, Defendant seeks an order compelling Plaintiff’s witness Mr. Pitkin to testify about Plaintiff’s loss of income. Defendant notes that Mr. Pitkin was personally served with a deposition subpoena that required him to appear for deposition on September 8, 2022 at 4:00 p.m. (Declaration of Robert K. Shawhan (“Shawhan Decl.”) ¿ 3; Exhibit B.) However, Defendant notes that on September 7, 2022, the day prior to the scheduled deposition, Mr. Pitkin called and left a voicemail stating that he could not attend the deposition and wanted it to be continued. (Decl. of Cynthia A. Palin (“Palin Decl.”), ¿ 2) Counsel for Defendant claims she spoke with Mr. Pitkin by telephone and agreed to his request on the condition that Defendant would not have to serve Mr. Pitkin with a second deposition subpoena. (Palin Decl., ¿ 3) Defendant asserts that Mr. Pitkin agreed he would appear for deposition without service of a second subpoena and he would provide his available dates for the deposition within a few days. (Palin Decl., ¿ 4) Defendant contends it placed several phone calls to Mr. Pitkin requesting new dates for his deposition but Mr. Pitkin did not respond. (Palin Decl., ¿ 5)

Defendant claims that it had Mr. Pitkin personally served with a second deposition subpoena that required him to appear for a remote deposition on October 6, 2022 at 11:00 a.m. (Shawhan Decl., ¿ 4; Exhibit C.) However, Defendant notes that Mr. Pitkin did not appear for his deposition on October 6, 2022 and Defendant took a Certificate of Non-Appearance. (Shawhan Decl., ¿ 5; Exhibit D.)

Now Defendant argues that Mr. Pitkin’s failure to comply with two separate subpoenas that were personally served on him is punishable as contempt of court without the necessity of a prior order of the Court. Mr. Pitkin violated a subpoena for his deposition, which was personally served on him per Exhibit C to the Shawham declaration. Defendant requests the Court issue an order of contempt and order Mr. Pitkin to appear for deposition within 20 days of the date of the Court’s order. The Court has received no opposition to the motion and is inclined to GRANT the motion and order Mr. Pitkin to attend his deposition on a date selected by Defendant within 20 days of the date of this order.

III. CONCLUSION

¿ For the foregoing reasons, Defendants’ Motions to Compel Mr. Pitkin’s Deposition is GRANTED, and Defendant is authorized to serve the Order by registered mail or other method of delivery that confirms delivery to the home address Defendant has for this witness identified by Plaintiff in his discovery response.

As to the Motion to Quash, the Court will rule after oral argument as directed by this Tentative Ruling.

¿¿

Defendant to give notice of the rulings.