Judge: Theresa M. Traber, Case: 22STCV29957, Date: 2023-09-08 Tentative Ruling

Case Number: 22STCV29957    Hearing Date: September 8, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 8, 2023                 TRIAL DATE: April 23, 2024

CASE:                         Jeffrey Allen Tabor et al. v. Colorado Capital Calabasas LLC, et al.

CASE NO.:                 22STCV29957           

MOTION TO COMPEL COMPLIANCE WITH THIRD PARTY DEPOSITION SUBPOENA; REQUEST FOR SANCTIONS

MOVING PARTY:               Plaintiffs Jeffrey Allen Tabor and Tenant Advisory Services, Inc. dba Jeff Tabor Group

RESPONDING PARTY(S): Nonparty Maverick Bankcard, Inc.

CASE HISTORY:

·         09/14/22: Complaint filed

·         11/22/22: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for fraud and breach of contract arising from a lease of real property. Plaintiffs allege that they were hired to broker a lease agreement with their client and Defendants, who own the property. Plaintiffs allege that they are entitled to a commission on the lease agreement which was improperly withheld.

Plaintiffs move to compel compliance with a third-party deposition subpoena propounded to non-party Maverick Bankcard, Inc., and for sanctions.

TENTATIVE RULING:

            Plaintiff’s Motion to Compel Compliance with Third Party Deposition Subpoena is GRANTED. Respondent is ordered to produce all responsive documents within 30 days of this order.

            Plaintiff’s request for sanctions is GRANTED against Respondent in the amount of $4,425.

DISCUSSION:

Plaintiffs move to compel compliance with a third-party deposition subpoena for business records propounded to non-party Maverick Bankcard, Inc., and for sanctions

Legal Standard

            Code of Civil Procedure section 1987.1(a) states, in relevant part:

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 . . . may make an order . . .  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.

(Code Civ. Proc. § 1987.1(a).) There is no meet and confer requirement in section 1987.1.  A separate statement is required when responses have been provided to the request for discovery. (Cal. Rules of Court Rule 3.1345(b).) Further, there is no requirement for a showing of good cause for production of documents in connection with a deposition subpoena. (Code Civ. Proc. § 2020.510(b); Terry v. SLICO (2009) 175 Cal.App.4th 352, 358.)

Deposition Subpoena Requests at Issue

            Plaintiff served Respondent with a deposition subpoena requesting production of 23 categories of business records via personal service on December 7, 2022. (Declaration of Grigory Rchtouni ISO Mot. ¶ 5, Exh. 1.) The subpoena demanded production of documents on January 3, 2023. (Id.) Respondent e-served objections to categories Nos. 1 through 11 only on December 30, 2023. (Id. ¶ 9, Exh. 3.) No response was ever provided to the remaining requests. (Id. ¶ 19.)

            Plaintiff now seeks to compel compliance with respect to categories Nos. 1, 2, 5, 6, and 8 through 23. Plaintiff contends that it is entitled to an order compelling these responses because Respondents’ objections to the first 11 categories were untimely under Code of Civil Procedure section 2025.410. This section provides, in relevant part:

(a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.

(b) If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition. Any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one.

(Code Civ. Proc. § 2025.410 (a)-(b).) It is undisputed that the deposition subpoena demanded responses by January 3, 2023. Pursuant to section 2025.410(a), any objections were due three calendar days before that date, which would have been Sunday, December 31, 2022. Thus, by operation of Code of Civil Procedure section 12, the final date to provide objections was December 30, 2023, the date those objections were provided. Pursuant to subdivision (b) of section 2025.410, any objections served on that date were required to be personally served on Plaintiffs. It is undisputed that Respondent’s objections were not served personally on that date, but instead were served electronically. (Rchtouni Decl. ¶ Exh. 3.) Respondents’ objections to these requests were therefore untimely as a matter of law.

            With respect to requests Nos. 12 through 23, Respondent contends that it was never served with the requests, because both copies of the subpoena (one for Respondent and one for its custodian of records, Ben Griefer, personally) which were served on Respondent’s counsel only contained the first 11 categories. (Declaration of Trevor R. Witt ISO Opp. ¶ 8, Exh. B.) However, Plaintiff provided, in its motion, not only the objections provided by Maverick, but the objections provided by Mr. Griefer, and Mr. Griefer responded to all 23 categories. (Rchtouni Decl. Exh. 3.) Respondent makes no effort to address this contradiction, and the Court therefore finds the Declaration of Attorney Witt not to be credible on this matter. As Respondent has not demonstrated a defect in service of the subpoena and failed to object to the remaining categories, Plaintiff is entitled to an order compelling compliance.

Sanctions

            Plaintiff also requests sanctions against Respondent for failure to comply with the subpoena.

            Sanctions are available against nonparties who “flout the discovery process.” (Temple Comm. Hosp. v. Sup. Ct. (Ramos) (1999) 20 Cal.4th 464, 476-77.) For example, a deponent who disobeys a subpoena may be punished for contempt. (Code Civ. Proc. § 2020.240.) Further, monetary sanctions are available “against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. § 2023.030 [emphasis added]; see also Code Civ. Proc. § 2025.480(f) [sanctions available against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance].)

            Here, Plaintiff requests $6,305 in sanctions against Respondent, accounting for six hours incurred at a rate of $485 per hour, plus seven anticipated hours reviewing the opposition, drafting a reply, and preparing for the hearing, plus a $60.00 filing fee. (Rchtouni Decl. ¶¶ 28-30.) The Court is not inclined to award anticipated hours based on fees not actually incurred but adds three additional hours of work for the reply papers submitted.  The Court will therefore reduce the fee award to $4,425, reflecting the amount reasonably expended by Plaintiff’s counsel.   

CONCLUSION:

            Accordingly, Plaintiff’s Motion to Compel Compliance with Third Party Deposition Subpoena is GRANTED. Respondent is ordered to produce all responsive documents within 30 days of this order.

            Plaintiff’s request for sanctions is GRANTED against Respondent in the amount of $4,425.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  September 8, 2023                             ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.