Judge: Ronald F. Frank, Case: 21TRCV00525, Date: 2024-01-02 Tentative Ruling
Case Number: 21TRCV00525 Hearing Date: January 2, 2024 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: January 2, 2024¿
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CASE NUMBER: 21TRCV00525
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CASE NAME: Sikder
Holdings International, Inc., et al. v. Michael Ball, et al.
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MOVING PARTY: Plaintiffs, Sikder Holdings International, Inc., R&R Beverages
Group PTE
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RESPONDING PARTY: Defendant,
Marsha NA Nongkhai
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TRIAL DATE: May 28, 2024
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MOTION:¿ (1) Motion to Enforce Subpoena of
Business Records of Defendant Ultracor, Inc. Served on Third-Party Witness JP
Morgan
(2) Motion to of Sikder Holdings International, Inc. for an
Order Compelling Defendant Marsha Na Nongkhai’s Appearance at Deposition and
Production of Documents
(3)
Request for Sanctions
Tentative Rulings: (1) Motion to Enforce
Subpoena of Business Records of Defendant Ultracor, Inc. Served on Third-Party
Witness JP Morgan is GRANTED, over the unproven objection by Ms. Nongkai
(2) Motion to Compel Defendant Marsha Na Nongkhai to attend
Deposition and Produce Documents is GRANTED
(3)
Monetary Sanctions GRANTED in the amount of $750, payable on or before January
3-, 2024 by Ms. Nongkai to Plaintiff’s counsel Ms. Kwong
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I. BACKGROUND¿¿¿
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A. Factual¿¿¿
On June 29, 2022, Plaintiffs, Sikder Holdings
International, Inc, R&R Beverages Group PTE, LTD, Lisa Haque, and Nasim
Sikder filed a Complaint against Defendants, Michael Ball, Marsha NA Nongkhai,
aka Asha Kai, Ultracor, inc., and DOES 1 through 25. The Complaint alleges
causes of action for: (1) Breach of Contract; (2) Breach of Fiduciary Duty
(CWater); (3) Breach of Fiduciary Duty (Denim Technologies); (4)
Fraud/Concealment; (5) Conversion; and (6) Declaratory Relief.
On August 11, 2023, Plaintiff notes it served Chase Bank a
subpoena for particular Ultracor, Inc. bank statements. (Declaration of Rosa Kwong (“Kwong Decl.”),
Exhibit A.) Plaintiff notes that production of the records were due on
September 14, 2023. On September 21, 2023, Plaintiff notes that its counsel
received a letter from Chase Bank advising that the subpoenaed records would
not be produced because of the objections from Nongkhai. Plaintiff contends the
letter and in the portion of the Notice to Consumer reserved for “objection,”
Nongkhai cited “privacy rights” and her belief that Plaintiffs lacked ownership
interest in Ultracor. However, Plaintiff contends that Nongkhai never served her
objections to Plaintiffs and did not make known her objections in any other
fashion. As such, Plaintiff has brought this Motion to Enforce Subpoena of
Business Records of Defendant, Ultracor, Inc. and contends that Ultracor’s objection
mut be disregarded.
On July 21, 2023, Sikder notes it e-served Defendant
Nongkhai a notice of her deposition set for August 15, 2023. (Declaration of
Rosa Kwong (“Kwong Decl.”), Exhibit A.) Plaintiff notes that on August 14,
2023, it sent Nongkhai the zoom link for the remote deposition, advising that,
failure to appear would subject her to a court order that she do so in the
future. (Kwong Decl., Exhibit B.) Nonetheless, on August 15, 2023, Defendant
Nongkhai failed to appear. On August 21, 2023, Sikder notes it re-noticed
Nongkhai’s deposition for September 19, 2023. Plaintiff notes that on September
15, 2023, it emailed Nongkhai reminding her of the deposition and requesting
she advise ahead of time whether she intends to appear. Plaintiff notes that Nongkhai
responded by email, indicating she that she lacked funds to hire an attorney
and asked for 30 days to find one. Plaintiff notes it took the deposition off
calendar, but that as of the filing of this motion, Plaintiff had not reached
back out to Plaintiff with an update on her ability to find counsel or with a proposed
date for her deposition to be taken. As such, Plaintiff Sikder has filed this
Motion for Order Compelling Defendant Nongkhai’s appearance at her deposition
and the production of documents.
B. Procedural¿¿¿
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On November 29, 2023, Plaintiffs filed a
Motion to Enforce Subpoena of Business Records of Defendant Ultracor, Inc.
served on Third-Party Witness JP Morgan Chase Bank. To date, no opposition has
been filed.
On December 1, 2023, Plaintiff Sikder filed
a Motion for an Order Compelling Defendant Marsha Na Nongkhai’s Appearance at
Deposition and Production of Documents. To date, no opposition has been filed.
II. MEET AND CONFER
This
Court finds that Plaintiff’s efforts to meet and confer are sufficient to bring
this motion.
III. ANALYSIS¿¿
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Legal
Standard
“Any consumer
whose personal records are sought by a subpoena duces tecum and who is a party
to the civil action in which this subpoena duces tecum is served may, prior to
the date for production, bring a motion under Section 1987.1 to quash or modify
the subpoena duces tecum. Notice of the bringing of that motion shall be given
to the witness and deposition officer at least five days prior to production.”
(Code Civ. Proc. § 1985.3(g).)
Code of Civil
Procedure § 1987.1(a) states:
If a subpoena requires the attendance of a witness or the
production of books, documents, electronically stored information, 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
Here, while it appears that Defendant
Nongkhai did indicate, on the SUBP-025 form, that she objected to the
production of her records specified in the subpoena, the Court notes that
Defendant Nongkhai never filed a motion to quash or modify the subpoena as
required and indicated in the document in which she signed. (Declaration of
Rosa Kwong (“Kwong Decl.”), ¶ 6, Exhibit F.) Plaintiff argues that Code of
Civil Procedure § 1985.3 does not authorize a party to halt the production of
subpoenaed records by merely submitting an objection. Plaintiff notes that in
this case, both Nongkhai and Ultracor, Inc. are party-defendants. Plaintiff
contends that Nongkhai’s letter/objection does not specify whether it was
generated on her own behalf as an individual defendant or on behalf of the
corporate defendant Ultracor, Inc. Moreover, Plaintiff contends that the
subject subpoena seeks the bank statements of Ultracor, Inc, and not the bank
statements of Defendant Nongkhai, and emphasizes that Corporations can claim no
equality with individuals in the enjoyment of a right to privacy. (citing
United States v. Morton Salt Co. (1950) 338 U.S. 632, 652.)
Although the Court understands that
Defendant Nongkhai may be representing herself in pro per, Defendants
representing themselves are still required to abide by required procedures. As
such, Defendant Nongkhai is required to follow the procedures of Code of Civil Procedure
§ 1985.3 and either file a motion to quash or modify the subpoena. Here,
Defendant Nongkhai failed to file either motion. Nor did Nongkai file any
response to the motion to enforce the subpoena such as to establish her claimed
privacy interest in the documents sought by the subpoena, an objection on which
she carries the burden of proof. That
burden has not been met on the record before this Court, even assuming that
Ultracor has a privacy interest in the records being sought to be
produced. Additionally, the Court notes
that discovery sought by the subpoena is not only relevant, but is also tailored
to a relevant and appropriate period of time. As such, the Court GRANTS the
motion and orders JP Morgan to comply with the subpoena and to disregard the unproven
objection filed by Defendant Nongkhai.
B.
Motion of
Plaintiff for an Order Compelling Defendant Marsha Na Nongkhai’s Appearance at
Deposition and Production of Documents
Legal Standard
Code of Civil Procedure section
2025.450, section (a) provides:
“If, after service of a
deposition notice, a party to the action or an officer, director, managing
agent, or employee of a party, or a person designated by an organization that
is a party under Section 2025.230, without having served a valid objection
under Section 2025.410, fails to appear for examination, or to proceed with it,
or to produce for inspection any document, electronically stored information,
or tangible thing described in the deposition notice, the party giving the
notice may move for an order compelling the deponent’s attendance and
testimony, and the production for inspection of any document, electronically
stored information, or tangible thing described in the deposition notice.”
(Code Civ. Proc., § 2025.450, subd. (a).)
The motion must “be accompanied by a meet and confer
declaration under Section 2016.040, or, when the deponent fails to attend the
deposition…by a declaration stating that the petitioner has contacted the
deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450,
subd. (2).) A court shall impose monetary sanctions if the motion to compel is
granted unless the one subject to sanctions acted with substantial
justification or other circumstances would make the imposition of the sanction
unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)
Discussion
Plaintiffs note that Defendant Nongkhai has
twice failed to appear for her lawfully noticed deposition. Plaintiffs also
note that Defendant Nongkhai did not object to either of the depositions, but
instead has pleaded a lack of funds to hire an attorney. As noted by
Plaintiffs’ motion, the Discovery Act does not excuse a witness from
participating in discovery because the party lacks an attorney, and the costs
of the court reporter are borne at least initially by the deposing party, not
by the witness. Plaintiff offered to
take the deposition remotely, reducing the deponent’s out-of-pockt expense for
things such as travel to and from the deposition and parking. As such, the
Court orders Defendant Nongkhai to appear remotely to give sworn deposition
testimony, and to produce the documents sought in the deposition notice. Unless otherwise agreed upon in writing by
the parties, the deposition is ordered to take place on January 17, 2024,
commencing at 10:0 a.m., with Plaintiffs’ mcounsel to provide Ms. Nongkai by
email with a link for the remote attendance at the deposition. The requested documents
are to be produced on or before that date and time as well. The Motion is thus GRANTED.
Sanctions
Pursuant to Code of Civil procedure §
2025.240(g)(1), if a motion to compel deposition is granted the Court shall
impose a monetary sanction in favor of the party who noticed the deposition and
against the deponent or party with whom the deponent is affiliated, unless the
court finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the sanction
unjust. Plaintiffs argue that Defendant Nongkhai should be sanctioned in the
amount of $1,036.65. This amount is based on Rosa Kwong’s declaration noting
that she has spent 4.5 hours to prepare the motion and supporting papers,
anticipates spending another hour reviewing any opposition to the Motion and
preparing a reply brief, an additional hour for the hearing, and has an hourly
rate of $150. This Court notes that no opposition was filed. As such, the Court
GRANTS the request for sanctions against Defendant Nongkhai in the lowered
amount of $750, to be paid to Plaintiffs counsel by January 30, 2024.