Judge: Upinder S. Kalra, Case: 19STCV40869, Date: 2022-11-14 Tentative Ruling

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Case Number: 19STCV40869    Hearing Date: November 14, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   November 14, 2022                                       

CASE NAME:           Donna Marie Morgan v. 853 North Fuller Avenue, LLC

CASE NO.:                19STCV40869

DEFENDANTS’ MOTION TO COMPEL THIRD PARTY TO COMPLY WITH SUBPOENA DUCES TECUM

MOVING PARTY: Defendants 853 North Fuller Avenue LLC, Elit Property Management Inc., Jehoshua Jakobi, and Ilana Jakobi

RESPONDING PARTY(S): None as of November 9, 2022

REQUESTED RELIEF:

1.      An order compelling Third-Party Tseng & Associates to comply with the Subpoena Duces Tecum

TENTATIVE RULING:

1.      Motion to Compel Third-Party Tseng & Associates to Comply with the Subpoena Duces Tecum is GRANTED

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On November 12, 2019, Plaintiff Donna Marie Morgan filed a complaint against Defendants 853 North Fuller Avenue, LLC (“853 North Fuller”), Elit Property Management, Inc. (“Elit”), Jehoshu Jakobi, and Ilana Jakobi for: (1) Negligence, (2)Breach of Implied Warranty of Habitability, (3): Violation of Los Angeles Municipal Code §§ 151.10 & 151.04, (4) Violation of Civil Code § 1942.4, (5) Unlawful and Unfair Business Practices (based on LAMC Violations), (6) Constructive Eviction, and (7) Unlawful and Unfair Business Practices (based on Civ. Code §1942.4 Violations)

Plaintiff was a tenant in a residential rental unit that 853 North Fuller owned and in which Jehoshu and Illana Jakobi had an ownership interest. Elit managed the property. Plaintiff alleges uninhabitable conditions, including ongoing rodent and vermin infestation, a faulty water supply that contained mold, missing/broken smoke detectors/carbon monoxide detectors, exposed gas pipes, no heat, etc. Plaintiff alleges that the City notified Defendants of multiple violations and ordered Defendants to address those violations, but Defendants failed to do so. Instead, Defendants increased and continued to demand rent. At the end of April 2019, given these habitability issues, Plaintiff alleges she had not choice but to vacate her unit.

On December 26, 2019, Defendants Jehoshua Jakobi, Ilana Jakobi, and Elit Property Management, Inc., filed an Answer.

On October 9, 2020, Defendant 853 North Fuller Avenue, LLC, filed an Answer.

On October 17, 2022, Defendants 853 North Fuller Avenue LLC, Elit Property Management Inc., Jehoshua Jakobi, and Ilana Jakobi filed the current Motion to Compel Third-Party Tseng to Comply with Subpoena. No Opposition has been filed.

On October 20, 2022, Defendants filed an Ex Parte Application Shortening Time on Hearing on Defendants’ Motion to Compel Third Parties’ Compliance with Subpoenas Duce Tecum, which was GRANTED, in part, as to Non-Party Tseng.

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.)¿ 

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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.)¿ 

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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.)¿ 

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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).¿ 

ANALYSIS:

Defendants move to have the Court order non-party Tseng & Associates (“Tseng”) to comply with the subpoena duces tecum and produce documents.

Plaintiff filed this action against Defendants claiming severe emotional distress due to inhabitability during her time residing at 853 North Fuller Avenue from April 2015 to April 2019. However, during that time, Plaintiff sustained two other injuries, one during work and one due to a car accident. As a result of both of these, Plaintiff suffered emotional distress and physical injuries. Non-party Tseng was counsel for the other driver and “has documents directly relevant to Plaintiffs’ personal injuries and emotional distress.” (Motion 5: 1-3.)

Defendants served Tseng with a subpoena, requesting the following documents:

“All documents that evidence, identify, and/or relate to Plaintiff’s suffering from stress anxiety, fear, anger, and loss of sleep from April 2014 through the present, including, but not limited to, any complaints from Plaintiff relating to these symptoms, any diagnosis of any of these conditions, any treatment for these conditions, any damages or money paid to Plaintiff related to these conditions, except attorney-client communications and/or attorney work-product.”

(Motion 3: 6-9.)

Tseng objected to this subpoena on the grounds of attorney-client privilege, work product privilege, vague, ambiguous, and over-broad. (Dec. Schwartz, Ex. 2.)

             The requested information is directly relevant and must be produced. As the Court indicated in the June 22^nd hearing, other occasions that caused Plaintiff to suffer emotional distress are directly relevant. Moreover, a plaintiff cannot claim emotional distress but the prevent certain documents from being produced that are directly relevant to Plaintiffs’ claimed distress. Moreover, the objections raised are without merit. First, the SDT specifically excludes any type of attorney-client communications or attorney work product. Second, this request is not vague or ambiguous as it specifically identifies the types of distress Plaintiff may have suffered, starting in 2014, and requests the complaints, diagnosis, treatment, and damages related to them. This request is specific and detailed.

The Motion to Compel Third-Party Tseng & Associates to Comply with the Subpoena Duces Tecum is GRANTED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

Motion to Compel Third-Party Tseng & Associates to Comply with the Subpoena Duces Tecum is GRANTED

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             November 14, 2022                _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court