Judge: Salvatore Sirna, Case: 19PSCV00882, Date: 2023-01-17 Tentative Ruling

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Case Number: 19PSCV00882    Hearing Date: January 17, 2023    Dept: G

Plaintiff William Loo’s Motion to Compel Compliance with Subpoena for Production of Powers of Attorney and Attorney Journals and Entries Regarding Fraudulent Powers of Attorney and Deeds of Trust Encumbering By Theft of 3 Real Properties Owned by Plaintiff and His Parents, in the Possession of Los Angeles County Sheriff’s Department and Los Angeles Police Department

Respondent: Non-Party Los Angeles Police Department

TENTATIVE RULING

Plaintiff William Loo’s Motion to Compel Compliance with Subpoena for Production of Powers of Attorney and Attorney Journals and Entries Regarding Fraudulent Powers of Attorney and Deeds of Trust Encumbering By Theft of 3 Real Properties Owned by Plaintiff and His Parents, in the Possession of Los Angeles County Sheriff’s Department and Los Angeles Police Department is DENIED.

BACKGROUND

This is an action to quiet title. Plaintiff William Loo alleges that Zixi Li (Li), Plaintiff’s wife, acted in concert with others to use the Plaintiff’s name to forge, present, and notarize false powers of attorney and a deed of trust in order to obtain a loan. On October 2, 2019, Plaintiff filed a verified complaint alleging the following causes of action against Li, M. Zha, Agnes N. Nwapa-Jourdan, Summit Capital LLC, the Bernard Rothschild Pension Plan by and through Bernard Rothschild and James Bernard Rothschild as trustees, JMR Investments, Does 1-25, and all persons unknown (collectively, Defendants), alleging the following causes of action: (1) declaratory relief, (2) cancellation of instruments, (3) slander of title, (4) quiet title, and (5) unjust enrichment.

On December 5, 2019, Summit Capital LLC and the Bernard Rothschild Pension Plan by and through Bernard Rothschild and James Bernard Rothschild as trustees filed a cross-complaint against Li, M. Zha, and Roes 1-20 for (1) indemnity, (2) contribution, (3) fraud by intentional misrepresentation, (4) fraud by concealment, and (5) negligence of a notary public.

On December 12, 2022, Plaintiff filed the present motion to compel the Los Angeles Police Department’s (LAPD) compliance with a deposition subpoena. Prior to filing on December 2, 2022, Plaintiff’s counsel telephonically meet-and-conferred with LAPD’s counsel but was unable to come to an agreement.

A hearing on the motion is set for January 17, 2023. A final status conference is also set for July 6 and a jury trial is set for July 18.

ANALYSIS

Plaintiff moves to compel the Los Angeles County Sheriff’s Department (LASD) and LAPD’s compliance with a deposition subpoena.

For the following reasons, the court ­DENIES Plaintiff’s motion.

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.)¿ 

A 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 3.1346.)¿ 

A nonparty deponent may be subject to contempt or monetary sanctions for disobeying a court order (Code of Civ. Proc., § 2025.480, subd. (k)) or for “flouting” the discovery process by suppressing or destroying evidence (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 476).¿ A nonparty may be punished by contempt (Code Civ. Proc., § 2020.240) or payment of $500.00 (Code Civ. Proc., § 1992).¿ 

Discussion

As an initial matter, the court notes Plaintiff has not properly served either the LASD or LAPD with this motion as required by Rule 3.1346 of the California Rules of Court. According to Plaintiff’s proof of service, copies of this motion were mailed via overnight mail to the LAPD Police Discovery Unit in Los Angeles and the LASD Fraud & Cyber Crimes Bureau in Whittier. There is no indication either the LAPD or LASD accept service by mail. Furthermore, the declaration by Plaintiff’s counsel does not suggest any attempt to meet-and-confer with counsel for the LASD.  Although, the declaration suggests LASD did in fact comply with the subpoena by turning over records to Plaintiff. (Ensberg Decl., ¶ 5-7.)

Pursuant to Code of Civil Procedure section 2020.410, subdivision (c), a deposition subpoena for business records must be “directed to the custodian of those records or another person qualified to certify the records.” That custodian or person must also provide an affidavit certifying that (1) “[t]he affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records,” (2) the copies are true copies of all the records described the subpoena, and (3) “[t]he records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event” in addition to other requirements. (Evid. Code, § 1561, subd. (a).)

Because of these requirements, an entity that did not prepare or generate the requested records cannot be the subject of such a subpoena. (Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1045 (Cooley).) In Cooley, the court held the district attorney for Los Angeles County could not be compelled to turn over law enforcement reports because the district attorney’s office did not provide the law enforcement reports requested. (Id., at p. 1043-1045.)

Here, Plaintiff’s counsel states none of the records sought “were created by the Police or Sheriff, nor prepared by the Police, nor were documents belonging to them, or the Sheriff’s department.” (Ensberg Decl., ¶ 4.) Because representatives for the LASD and LAPD cannot certify these records under Evidence Code section 1561, the LASD and LAPD do not qualify as custodians of record subject to service of deposition subpoenas. Thus, the court finds that Plaintiff has no legal basis to bring the subject motion to compel.

Accordingly, the court DENIES Plaintiff’s motion.

CONCLUSION

Based on the foregoing, Plaintiff’s motion to compel compliance with deposition subpoenas to the LASD and LAPD is DENIED.