Judge: Virginia Keeny, Case: 20STCV26950, Date: 2025-04-15 Tentative Ruling

Case Number: 20STCV26950    Hearing Date: April 15, 2025    Dept: 45

GRACE CAI, et al. vs MICHELLE KIM, et al.

motion to compel attendance of sheena gao at deposition and motion to quash subpoenas

Date of Hearing:        April 15, 2025                                                 Trial Date:       May 5, 2025

Department:              45                                                                    Case No.:        20STCV26950

BACKGROUND

Plaintiffs Grace Cai and Mitchell Gao filed this action on July 17, 2020, against Defendants Michelle Kim, Konstantinos Raptakis, Scala Investments, LLC, Moloko Holdings, LLC, Forward Beverly Hills, Inc. dba Keller Williams, alleging causes of action for (1) Fraud; (2) Fraudulent Transfer; (3) Negligent Misrepresentation; (4) Conversion; (5) Breach of Oral or Implied Contract; (6) Breach of Promissory Note; (7) Fraudulent Business Practices (Bus. & Prof. Code §§ 17200, et seq.; (8) Breach of Fiduciary Duty; (9) Money Had & Received; (10) Constructive Trust; (11) Unjust Enrichment/Recission; (12) Recovery of Compensation Paid to Unlicensed Contractor (Bus. & Prof. Code §§ 7031(b), et seq.; (13) Violation of Cal. Penal Code § 496; and (14) Injunctive Relief.  Plaintiff dismissed Defendant Forward Beverly Hills, Inc. on January 8, 2021.

On October 22, 2021, Defendants Michelle Kim and Raptakis filed a cross-complaint against Sheena Gao for Defamation Per Se; Intentional Infliction of Emotional Distress; Fraud/Intentional Misrepresentation; and Promissory Fraud/False Promise. Cross-Complainants amended their cross-complaint on February 8, 2022.

[Tentative] Ruling

I.                    Defendants’ Motion to Quash Subpoenas and Request for Sanctions is GRANTED.

II.                  Defendants’ Motion to Compel Attendance of Sheena Gao at Deposition and Request for Monetary Sanctions is GRANTED.

discussion

I.                    DEFENDANTS SCALA INVESTMENTS, LLC AND KONSTANTINOS RAPTAKIS’ MOTION TO QUASH SUBPOENAS AND REQUEST FOR SANCTIONS AGAINST PLAINTIFFS AND THEIR COUNSEL

Defendants Scala Investments LLC and Konstantinos Raptakis move for entry of a court order to quash the subpoenas for production of business records issued by Plaintiffs Grace Cai and Mitchell Gao directed to J.P. Morgan Chase Bank and East West Bank demanding the production of bank records relating to their financial transactions. Defendants also move for an award of sanctions against Plaintiffs and their counsel, jointly and severally, in the amount of $1,860.00.

Code of Civil Procedure section 1987.1 states, “When a subpoena requires the attendance of a witness or the production of [documents], the court, upon motion reasonably made by the party, the witness or any consumer described in Section 1985.3…may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders.” “The court may make any other order as may be appropriate to protect the parties, the witness, or the consumer from unreasonable or oppressive demands including unreasonable violations of a witness’s or consumer’s right of privacy.” (Ibid.)  

Plaintiffs seek the banking records of Defendant Scala from J.P. Morgan Chase Bank and banking records of Defendant Raptakis from East West Bank. Defendants argue the subpoenas for production of business records issued on J.P. Morgan Chase Bank and East West Bank should be quashed on the grounds Plaintiffs failed to serve Notices to Consumer to Scala and Raptakis and the J.P. Morgan Chase Bank subpoena is unintelligible, vague and ambiguous as well as impermissibly overbroad.

The court GRANTS Defendants’ Motion to Quash Subpoenas. As noted by Defendants, Plaintiffs failed to serve Notices to Consumer on Scala and Raptakis before issuing the subpoenas to the Banks. (CCP §1985.3(b)-(d); Ponce-Gomez Decl. ¶4.) Moreover, the court agrees the J.P. Morgan subpoena provides conflicting time periods and it is impossible for Defendant to comply with without speculating. Lastly, either date listed seems to be outside the relevant time period. Defendants note the relevant time periods would be January 1, 2018 through February 1, 2020 as with the East West Bank subpoena.

The motion is unopposed. Accordingly, Defendants’ Motion to Quash Subpoenas is GRANTED.

Sanctions

Defendants Scala and Raptakis request that this court order Plaintiffs and their counsel, jointly and severally, to compensate Scala and Raptakis for attorney fees in the amount of $1,860.00. Defendants seek $1,860.00 for 2.5 hours drafting the motion, 1.5 hours reviewing the opposition, preparing the reply and attending the hearing at counsel’s hourly rate of $450.00. Defendants also seek the $60.00 filing fee. The court GRANTS Defendants’ request in the reduced amount of $1,185.00.

II.                  DEFENDANTS’ MOTION TO COMPEL ATTENDANCE OF SHEENA GAO AT DEPOSITION AND REQUEST FOR MONETARY SANCTIONS

Defendants Michelle Kim, Konstantinos Raptakis, Scala Investments LLC, and Moloko Holdings LLC move to compel Sheena Gao’s attendance at deposition and production of responsive documents pursuant to Code of Civil Procedure section 2025.450. Defendants make the motion on the basis that Sheena has refused, and continues to refuse, to appear at her properly noticed deposition. Defendants also seek monetary sanctions against Sheena Gao and her counsel, Law Offices of Marvin Benson, in favor of Defendants in the amount of $2,760.00.

“If, after service of a deposition notice, a party to the action . . ., without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(CCP § 2025.450(a).)¿¿“The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (CCP § 2025.450(b)(2).) The motion must set forth facts showing both good cause justifying the demand for any documents and a meet and confer declaration.¿¿(Co CCP § 2025.450(b)(1), (b)(2).) 

Defendants Scala Investments LLC and Konstantinos Raptakis contend Sheena has refused to appear for two properly noticed depositions. Defendants maintain they have made repeated efforts to depose Sheena Gao but there has been a refusal to provide Sheena's availability before the Discovery Cut-Off. To date, Defendants maintain Plaintiff has not proposed or confirmed any date for Sheena Gao’s deposition. (Ponce-Gomez Decl. ¶29.) The court notes Sheena Gao originally objected on the grounds her bankruptcy action was still pending; however, there is already a court order stating the she is a percipient witness and "staying of the [First Amended Cross-Complaint] as to [Sheena] has no bearing on the continued 2 litigation of the Complaint against the [Defendants]”. (Ponce-Gomez, Exh. 1.) Moreover, as a precaution, Defendants issued a subpoena for Sheena Gao as a non-party witness. (Ponce-Gomez Decl. ¶18.)

No opposition has been filed. The court GRANTS Defendants’ Motion to Compel Attendance of Sheena Gao at Deposition. Sheena Gao has not appeared for her duly noticed depositions.

Sanctions

Defendants also seek sanctions against Sheena Gao and her attorney, Law Offices of Marvin Benson, jointly and severally, in the amount of $2,760.00 (3.5 hours preparing the motion, 1.5 hours reviewing opposition, preparing reply and attending the hearing, and 1.0 hours preparing ex parte application advancing the hearing date as well as the $60 filing fee). Defendants argue Sheenas continued refusal to cooperate with Defendants to schedule her deposition and her failure to appear at two (2) properly noticed depositions, without any justification, constitute misuses of the discovery process within the meaning of Code of Civil Procedure section 2023.010.

The court GRANTS Defendants’ request for monetary sanctions in the reduced amount of $2,025.00.