30-2012-00617730

Motion by Plaintiff Glacern for Order Quashing Discovery Subpoena:

The court denies the motion as moot, in light of Defendant/Cross-Complainant Eric Sun’s representation that the subject subpoenas were withdrawn and new subpoenas were issued.
In the Opposition, Sun points out that Opus Bank was notified that the original subpoenas were being withdrawn and that new subpoenas have been served with the technical defects noted by Plaintiff’s counsel remedied. (Opposition, p. 2:12-15.) Glacern’s counsel declared that if the subpoenas were cancelled, this motion would be taken off calendar. (Klein Decl., ¶ 10.) The motion has yet to be withdrawn. Glacern did not file a Reply to the Opposition, which tends to show that Sun did withdraw the original subpoenas and re-issued new ones.

Sanctions appear warranted because Glacern filed the motion prematurely on 03/17/14, even though the document production date was set for 03/31/14. Indeed, Glacern’ s counsel called Sun’s counsel on 03/17/14 to clarify whether the subpoenas would be withdrawn and re-issued—Sun did not even have 24 hours to respond to the call. Although Glacern’ s counsel explains that he could not wait longer because he had other “pressing matters” and did not want the motion to “fall through the cracks,” he could have simply drafted the motion and held off on filing/serving it. Further, Glacern’ s counsel represented that the motion would be withdrawn if the subpoena was cancelled. It appears that corrected subpoenas were re-issued. Glacern did not file a Reply arguing the subpoenas were not re-issued, nor has it withdrawn the motion. It thus appears Sun was forced to oppose a motion that had already been rendered moot.

Sanctions of $1,960 are issued against Glacern Machine Tools LLC and Glacern LLC and their counsel, jointly and severally, for failing to make a reasonable, good faith attempt to resolve the discovery dispute before filing the motion, pursuant to Code Civ. Proc., § 2023.010, subds. (h) and (i).

Responding Party is ordered to give notice.