Judge Ronald F. Frank, Case Number: 23TRCV02800, Date: 2025-02-07 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV02800, Date: 2025-02-07 Tentative Ruling

Case Number: 23TRCV02800 Hearing Date: February 7, 2025 Dept: 8

Tentative Ruling

HEARING DATE: February 7, 2025

CASE NUMBER: 23TRCV02800

CASE NAME: Susanne Rose, et al. v. Ocean Ten, LLC, et al.

MOVING PARTY: Plaintiffs, Susanne Rose, Nick Saba, Sr., Jeanette Rowland, Nick Saba Jr., Shameka Fleming, Marquan Pikes, Malaya Pikes, Mashaila Pikes

RESPONDING PARTY: Defendants, Ocean Ten, LLC, BD Management Company, LLC, Bryan Bohlinger, and Patricia Padilla

TRIAL DATE: Not Set.

MOTION:

(1) Plaintiffs’ Motion to Quash Subpoenas

(2) Plaintiffs’ Request for Monetary Sanctions

(3) Defendants’ Request for Monetary Sanctions

Tentative Rulings:

(1) Plaintiffs’ Motion to Quash Subpoenas is GRANTED.

(2) Plaintiffs’ Request for Monetary Sanctions is DENIED.

(3) Defendants’ Request for Monetary Sanctions is DENIED.

I. BACKGROUND

A. Factual

On August 24, 2023, Plaintiffs, Susanne Rose, Nick Saba, Sr., Jeanette Rowland, Nick Saba Jr., Shameka Fleming, Marquan Pikes, Malaya Pikes, Mashaila Pikes (collectively, “Plaintiffs”) filed a Complaint against Defendants, Ocean Ten, LLC, BD Management Company, LLC, Beach Front Property Management, Bryan Bohlinger, and Patricia Padilla, and DOES 1 through 50. On November 15, 2023, Plaintiffs filed a First Amended Complaint (“FAC”). On February 1, 2024, this Court sustained the Defendants’ previous demurrer with leave to amend.

On February 22, 2024, Plaintiffs filed a Second Amended Complaint (“SAC”) alleging causes of action for: (1) Breach of the Warranty of Habitability (common law); (2) Breach of the Warranty of Habitability (statutory); (3) Breach of the Covenant of Quiet Enjoyment; (4) Breach of Contract; (5) Private Nuisance; (6) Discriminatory Practices on Account of Disability and Medical Condition (FEHA § 12955); (7) Violation of the Unruh Civil Rights Act; (8) Negligence; (9) Intentional Infliction of Emotional Distress; (10) Retaliation; (11) Unfair Business Practices (Cal. Bus. & Prof. Code § 17200); and (12) Violation of the Americans with Disabilities Act.

Plaintiffs have now filed a Motion to Quash three of Defendants’ Subpoena Requests.

B. Procedural

On January 22, 2025, Plaintiffs filed this Motion to Quash Subpoenas. On January 28, 2025, Defendants filed an opposition brief. On January 28, 2025, Plaintiffs filed a reply brief.

II. ANALYSIS

A. Legal Standard

A subpoena for the production of personal consumer records may be issued pursuant to Code of Civil Procedure section 1985.3. Personal consumer records means “the original, any copy of books, documents, other writings, or electronically stored information pertaining to a consumer, and which are maintained by any ‘witness’ which is a[n]….insurance company.” (Code Civ. Proc., § 1985.3, subd. (a).) “Consumer” means any individual that has transacted business with, or has used the services of, the witness. (Code Civ. Proc., § 1985.3, subd. (b).) Any consumer whose personal records are sought by a subpoena and who is a party to the action may file a motion to quash or modify the subpoena under Code of Civil Procedure section 1987.1. (Code Civ. Proc., § 1985.3, subd. (g).)

“[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 Assn. (2007) 151 Cal. App. 4th 575, 582-83.) Either the nonparty witness who has been subpoenaed or any party to the action may challenge the deposition subpoena. (Code Civ. Proc., § 1987.1, subd. (b).) A deposition subpoena may be quashed for: (1) defects in form or content of the subpoena (e.g., inadequate description of requested records); (2) defects in service of the subpoena (e.g., failure to satisfy the requirements of providing notice to consumer); (3) requesting production of records not within the permissible scope of discovery; and (4) being unjustly burdensome or oppressive. (Code Civ. Proc., § 1987.1, subd. (a).)

B. Discussion

As an initial matter, the Court acknowledges Defendants’ opposition brief argument that Plaintiffs’ Motion to Quash does not comply with California Rules of Court Rule 3.1345 since it was not filed with a separate statement. However, the Court does not deny the motion on these grounds since they can be found in the subsequently filed declaration of Nnogo C. Obiamiwe (“Obiamiwe Decl.”). Moreover, the Motion to Quash is not based on the content of the subpoenas, as such, the need for a separate statement is not necessary here, where the procedural deficiencies of the consumer notices are the moving grounds for this motion.

As a secondary matter, the Court observes that the Judicial Council form for a Notice to Consumer does not have a box to check for service of the consumer notice by email. This is perhaps due to the forms being behind the times, as service by email to a represented party is now the accepted norm. There is nothing that precludes a party from serving a consumer notice by email in addition to service by mail, which if done here would have avoided this entire tempest in a teapot.

Plaintiffs move for an order to quash the subpoenas on the grounds that the subpoenas were improperly served on one of the two plaintiffs’ counsel after Mr. Obiamiwe had filed and served his notice of change of address. This is a valid ground to object to or move to quash the SDTs. While the defense argues in opposition that the mail sent to the wrong address was likely forwarded and thus Mr. Obianiwe should not have been prejudiced by the clerical mistake in service my mail, the defense ignores the date on which the consumer notices were served – between Christmas and New Year’s – and the defense ignores the short time periods for a consumer or counsel to object after service by mail of notices. In the Court’s opinion, the main complaint of prejudice suffered by Plaintiffs is that they did not have time to object.

Plaintiffs argue in their reply brief that sending a subpoena to a single counsel in a jointly represented case does not meet the requirements of service. Although this issue involves something that should have been resolved during the meet and confer process between the parties, Plaintiffs are not incorrect about the service violation. As such, the Motion to Quash is granted. Defendants will need to re-issue the SDTs and serve new consumer notices with proper service on all of plaintiffs’ counsel.

The Court declines to award sanctions to either side. Counsel on both sides can view this as a learning opportunity because the issues presented here could and should have been resolved without court intervention. Counsel could have discussed any substantive objections to the scope of the SDTs, agreed to narrow them, and have already had the requested documents in hand. However, if plaintiffs have no substantive objection to the scope of the subject subpoenas, the Court may reconsider its tentative decision to deny sanctions.