Case Number: B161824??? Hearing Date: July 19, 2016??? Dept: 37

CASE NAME: In re: Petition of Gilmour South, Inc.

CASE NO.: BS161824

HEARING DATE: 7/19/16

DEPARTMENT: 37

CALENDAR NO.: 1

TRIAL DATE: None

NOTICE: OK

SUBJECT: Petition for Order to Take Discovery (Code Civ. Proc., ? 2029.600)

PETITIONER: Gilmour South, Inc.

OPPOSING PARTY: Respondent Jason Sugarman

COURT?S TENTATIVE RULING

The petition is denied without prejudice as to Jason Sugarman. There is no opposition by Cameron Wald and Daniel D. White and the petition is granted as to them. Counsel for Sugarman to give notice.

DISCUSSION

This is a petition by Gilmour South, Inc. to enforce subpoenas served on Respondents Jason Sugarman, Cameron Wald, and Daniel D. White, Esq. Petitioner filed a lawsuit in Florida state court to rescind a real estate transaction concerning a shopping mall known as the Galleria. Petitioner alleges that Sugarman and Wald were partners in the entity responsible for financing the transaction, and that White was an attorney who prepared the closing documents. Since November 2015, Petitioner has been attempting to obtain discovery from Respondents pursuant to subpoenas issued by a court clerk of this court under the Interstate and International Depositions and Discovery Act (Code Civ. Proc., ?? 2029.100-2029.900). Petitioner now petitions the court to compel compliance with the subpoenas. (Code Civ. Proc., ? 2029.600.) Only Sugarman opposes the petition.

The service of the subject subpoenas on Sugarman did not comply with the Code of Civil Procedure. With respect to Sugarman, Petitioner secured the issuance of a subpoena duces tecum for deposition (?Subpoena 1?) and a subpoena for production of documents without deposition (?Subpoena 2?) on November 23, 2015, and December 9, 2015, respectively. Petitioner purported to serve Subpoena 1 on January 18, 2016, and Subpoena 2 on January 11, 2016.1 However, neither subpoena provided Sugarman sufficient time to comply under the Code of Civil Procedure. For instance, Subpoena 1, served on January 18, 2016, called for attendance and production of documents on January 26, 2016, eight days later. Fifteen days? notice was required with respect to the production of documents; ten days? notice was required for oral deposition testimony. (Code Civ. Proc., ?? 2020.220(a), 2020.410(c), 2025.270(a).) Similarly, Subpoena 2,
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1 Petitioner secured the issuance of subpoenas with respect to Wald and White in November and December 2015, and served those subpoenas in January 2016.

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served on January 11, 2016, called for production of documents on January 13, 2016, two days later. Fifteen days? notice was required. (Code Civ. Proc., ? 2020.410(c).)2

As Petitioner notes, parties are generally able to resolve matters of this nature, which likely explains the absence of reported decisions on this subject. Petitioner maintains that the untimeliness of the service does not render the subpoena invalid. Instead, it means only that the court could not have enforced the subpoena until after the 15- or 10-day periods for the production of documents and attendance at oral deposition had elapsed. Since those time periods have since elapsed, Petitioner concludes that the court may enforce the subpoenas against Sugarman, citing Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886. In Rosenfeld, the trial court refused to enforce a subpoena duces tecum for personal appearance and production of documents on the ground that the subpoena was untimely served only eight days before trial. The Court of Appeal held that the trial court properly refused to enforce the subpoena, since it did not provide a reasonable amount of time for compliance, as set forth in Code of Civil Procedure section 2020.410(c). (Id. at pp. 903-904.) The Court did not opine as to whether the subpoena nevertheless remained ?valid? such that it could be enforced at a later point in time. Rosenfeld, therefore, does not support Petitioner?s position. There is no authority which supports the broader proposition argued by Petitioner.

The declaration submitted in support of the petition is that of Patricia Silver. She states, ?Due to the length of time to obtain service as a result [of] what appears to be evasive action on the part of Respondents, there was not sufficient time between the time set for compliance with the subpoenas and appearance at depositions.? (Silver Decl. ? 10.) She also states, ?The witnesses were not released from the subpoenas but the depositions were cancelled and have been reset. The nonparty witnesses did not communicate with Petitioner?s counsel as to their attendance prior to cancellation. Rather than [voluntarily] agree to comply upon an agreed upon date, White filed objections, Sugarman contested service and Wald agreed to coordinate, but has not done so as of this date. Consequently, Petitioner has issued and tried to serve new subpoenas. To date, all three respondents have evaded service of process.? (Silver Decl. ? 14.) Thus, it appears that Petitioner recognized the initial subpoenas were not validly served and has since been attempting to effectuate proper service.

The petition is denied without prejudice because Petitioner has not demonstrated that valid service has been effectuated. The timing requirements with respect to the subpoenas are mandatory. By statute, the subpoenas ?shall? be served in sufficient time to allow the witness ?a reasonable time? to respond as called for. (Code Civ. Proc., ?? 2020.220(a), 2020.410(c), 2025.270(a).) This did not occur with respect to the subject subpoenas. Sugarman denies that he has been attempting to evade service,
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2 The court notes that Sugarman also objects to the service of Subpoena 1 on the ground that, as demonstrated by the proof of service, the subpoena was served by substitute service on an individual named Susan ?Doe,? who is described as being a man. The resolution of that issue is not necessary for the disposition of this matter.

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and because service was improper, Sugarman devoted his opposition to demonstrating why service, a procedural matter, was defective

As a substantive matter, Sugarman contends that the subpoenas are overbroad and invade his right to privacy. This is an important issue which remains to be resolved. The court notes that the subject subpoenas seek a significant amount of financial information with respect to thirty different individuals and companies. The substantive issues are better addressed at a later juncture after adequate service has been made. The court requires a meet and confer on these issues before ruling and will enter a protective order prior to any production. Once Petitioner properly serves Sugarman, he will then have the opportunity to object to the scope of the documents and meet and confer with opposing counsel. Accordingly, it is premature for the court to address the substantive issues raised by Sugarman. However, at the hearing, the parties should be prepared to discuss the issues with respect to service of the subject subpoenas.