Judge: Virginia Keeny, Case: 19VECV00088, Date: 2023-02-01 Tentative Ruling
Case Number: 19VECV00088 Hearing Date: February 1, 2023 Dept: W
SPENCER
WEINERMAN, ET AL. V. RON GROSSBLATT, ET AL.
MOTION FOR ORDER
TO COMPEL COMPLIANCE WITH COURT’S ORDER REQUIRING FULL COMPLIANCE WITH SUBPOENA
DUCES TECUM, TO SHOW CAUSE RE CONTEMPT DIRECTED TO THIRD PARTY DIGNITY HEALTH
FOR FAILURE TO APPEAR AT DEPOSITION AND PRODUCE RECORDS
Date
of Hearing: February 1, 2023 Trial Date: October 16, 2023
Department:
W Case No.: 19VECV00088
Moving
Party: Plaintiff Spencer
Weinerman, individually, and as Trustee of the Weinerman Family Trust
Responding
Party: Non-party Dignity Health
BACKGROUND
Plaintiff
and Defendant Grossblatt’s father started a collections business called Grant
& Weber. Plaintiff owns or controls a total of 40% of the company. He is a
former employee and his employment was terminated in December 2014.
Plaintiff
alleges that an agreement exists between plaintiff and some of defendants that
provides that in the event of the termination of a shareholder the terminating
shareholder’s shares shall be sold to the remaining shareholder. The contract
sets forth a formula for calculating the costs of the shares. According to
plaintiff, defendants refuse to pay for the shares pursuant to the contract. Plaintiff
further alleges that he is also the owner of 15% of the shares of Grant &
Weber Nevada. However, plaintiff discovered that he shares had never been
formally transferred to certificates bearing plaintiff’s name and defendants
have now declared that plaintiff owns no shares of Grant & Weber Nevada.
Plaintiff
also alleges that defendants have committed acts of misconduct against clients,
in particular those clients plaintiff brought to the firm. Plaintiff alleges he
was coerced into signing a promissory note representing that he owed a lot more
that he actually did, and ultimately terminated him.
There
is a related case in which Grant and Weber is suing plaintiff’s new company
Weber and Associates, for breach of fiduciary duty and misappropriation of
trade secrets.
Plaintiff
filed their complaint on January 17, 2019 and the First Amended Complaint on
February 14, 2019, alleging: 1. Removal of Director; 2. Breach of Contract; 3.
Conversion; 4. Breach of Fiduciary Duty; 5. Intention Misrepresentation; 6.
Negligent Misrepresentation; and 7. Involuntary Dissolution of Corporation
On
May 6, 2021, this action was related to Grant & Weber v. Weber &
Associates, et. al. (LC107630) and Spencer Weinennan, Individual and
Trustee v. Ron Grossblatt, et. al. (21VECP00229).
[TENTATIVE]
RULING:
Plaintiff
Spencer Weinerman, individually, and as Trustee of the Weinerman Family Trust’s
Motion to Compel Compliance is DENIED.
EVIDENTIARY
OBJECTIONS
Nonparty Dignity Health submits evidentiary
objections to the declaration of Plaintiff’s counsel, Keven Steinberg.
The court sustains objection nos. 1, 3.
DISCUSSION
Plaintiff
Spencer Weinerman, individually, and as Trustee of the Weinerman Family Trust
moves this court for an order compelling third party Dignity Health’s full
compliance with Subpoena Duces-Tecum and the Court’s Order dated November 3,
2022. Plaintiff further moves for sanctions against Dignity Health and its
attorney of record, Harvey Rochman, in the amount of $5,986.65 as well as an
order to Show Cause why Dignity Health should not be held in contempt and
sanctioned for such contempt for failing to comply with the subpoena duces
tecum and the Court’s order.
Nonparty
Dignity Health opposes the motion on two main grounds: (1) Plaintiff cannot
compel Dignity Health to comply with Defendant Grossblatt’s Motion to Quash;
and (2) If Plaintiff’s motion is deemed a motion to compel compliance, it is
untimely. The court agrees.
Both
a party to the litigation and the subpoenaed third party have independent
rights to challenge a third party subpoena.
The record is clear that Dignity Health served timely objections to the
subpoena at issue here (the “October subpoena”). Those objections were independent from the
motion to quash brought by Defendant Grossblatt. The court never considered any objections
Dignity Health might have had since Dignity Health was not served with the motion
to quash or opposition and did not appear at that hearing. The court ruled on only the motion to
quash. When it ordered compliance, this
court overstated its ruling and order, since it had not considered and did not
even have before it the separate objections made by Dignity Health. The court’s ruling should have simply been
that the motion to quash was denied.
Any
motion to compel compliance with the subpoena had to be brought within 60 days
of the service of objections. C.C.P. §
2025.480 (a)-(b)(if a party fails to answer any question or produce any
document, the party seeking discovery may move the court for an order
compelling that answer or production; the motion must be made “no later than
60
days after the completion of the record of the deposition”). In Unzipped
Apparel, LLC v.
Bader,
156 Cal. App. 4th 123, 127 (2007), the Court of Appeal held that objections
constitute a “record of the deposition” therefore once a party receives
objections to a subpoena, “the subpoenaing party has all of the information it
needs to prepare a motion to compel.” Id. at 127, 133; Board of Registered
Nursing v. Sup.Ct., 59 Cal. App. 5th 1011, 1032-1033 (2021) (the deposition
record is complete and the 60-day period begins to run on the date objections
are served); Rutledge v. Hewlett-Packard Co., 238 Cal.App.4th 1164, 1192
(2015)(“the 60-day period during which a motion to compel must be filed, begins
to run when the deponent serves objections on the party. At the time the
objections are served, the record of deposition is complete”). This rule
applies to subpoenas for production of documents at a deposition and also to
business records subpoenas. Cal. Prac. Guide Civ. Pro. Before Trial, Rutter
Group, Ch. 8:609.1 (Motion to Compel).
Objections
were served on September 26, 2022. More
than 60 days have passed since those objections were served, making this motion
untimely. While the objections were not
on pleading paper or formal, they were written by counsel for Dignity Health,
emailed to plaintiff’s counsel and incorporate the company’s earlier objection
to a similar subpoena. The court finds these objections to satisfy the code’s
requirements. At the time the court
ruled on the motion to quash, there was still more than sufficient time to file
the motion to compel and to have the court consider and overrule such
objections.
Sanctions
and Order to Show Cause
Under
Code of Civil Procedure section 2023.030(a), “[t]he court may impose a monetary
sanction ordering that one engaging in the misuse of the discovery process, or
any attorney advising that conduct, or both pay the reasonable expenses,
including attorney's fees, incurred by anyone as a result of that conduct. If a monetary sanction is authorized by any
provision of this title, the court shall impose that sanction unless it finds
that the one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.” Under Code
of Civil Procedure section 2023.010, an example of the misuse of the discovery
process is “(d) Failing to respond or to submit to an authorized method of
discovery.”
Plaintiff’s
counsel seeks $5,986.65 in monetary sanctions against Nonparty Dignity and its
counsel of record, Harvey Rochman. Plaintiff’s counsel attests he spent 6 hours
meeting and conferring and preparing the instant motion; an anticipated 3 hours
reviewing the opposition and preparing a reply. (Steinberg Decl. ¶8.) Counsel
also seeks $61.65 for filing fees and $75 for attorney services fees.
(Steinberg Decl. ¶8.) Counsel’s hourly rate is $650.00. (Steinberg Decl. ¶8.)
Although
it is true that this court’s order directed compliance with the subpoena, the
court agrees with Dignity Health that such order was improper given the
procedural posture of these discovery motions.
Accordingly, sanctions and an OSC re contempt are unwarranted.