MARLA MARIE DAVIS, individually and on behalf of all others similarly situated,

Plaintiff,

vs.

CAVALRY SPV I, LLC, a Delaware limited liability company; and DOES 1 through 10, inclusive,

Case No. 2016-1-CV-301730

TENTATIVE RULING RE: MOTION TO COMPEL COMPLIANCE WITH SUBPOENA; REQUEST FOR MONETARY SANCTIONS

The above-entitled action is coming on for hearing before the Honorable Thomas E. Kuhnle on July 28, 2017, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a putative class action brought by plaintiff Marla Marie Davis (“Plaintiff”) pursuant to the California Fair Debt Buying Act. According to the Complaint, filed on October 26, 2016, Plaintiff is alleged to have incurred a financial obligation in the form of a consumer credit account issued by Citibank, N.A. (Complaint, ¶ 12.) Plaintiff denies any debt is owed. (Ibid.) On December 8, 2015, the alleged debt was sold to defendant Cavalry SPV I, LLC (“Defendant”) for collection purposes. (Id. at ¶ 15.)

On July 2, 2016, Defendant sent a written communication to Plaintiff. (Complaint, ¶ 17.) The communication provided the notice required by the California Fair Debt Buying Practices Act in smaller than 12-point type. (Id. at ¶ 19.)

On December 5, 2016, Plaintiff served a deposition subpoena on Cavalry Portfolio Services, LLC (“Deponent”). Deponent served objections and refused to produce any documents. Plaintiff now moves to compel compliance with the subpoena. Deponent also requests monetary sanctions against Deponent in the sum of $2,450.

II. DEPONENT’S REQUEST FOR JUDICIAL NOTICE

Deponent requests judicial notice of the following documents:

(1) Complaint of Tabitha Lynn Newsom filed against Deponent on September 15, 2016;

(2) Order Re: Motion to Compel Compliance with Subpoena; Motion to Compel Further Responses to Request for Production of Documents; Requests for Monetary Sanctions, dated April 13, 2017; and

(3) Deposition Subpoena for Production of Business Records Newsom served on Deponent’s registered agent of process in California, CT Corporation System, on December 5, 2016.

Documents from a different superior court case are not relevant to the resolution of the motion before the Court. Although a court may judicially notice a variety of matters, only relevant material may be noticed. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds.) Accordingly, the request for judicial notice is DENIED.

III. MEET AND CONFER

Deponent argues Plaintiff did not engage in a meaningful meet and confer process before filing this motion. Plaintiff sent a meet and confer letter to Deponent on March 7, 2017. While the letter does not address specific requests for documents,
it responds to Deponent’s objections. For purposes of this motion, the Court finds Plaintiff’s meet and confer letter was sufficient.
Plaintiff argues in its reply papers that Deponent failed to respond to Plaintiff’s meet and confer letter, other than to request an extension of time. This assertion is incorrect. Deponent’s March 31, 2017, letter responded to several of the points made in Plaintiff’s letter. (See Declaration of Liana Mayilyan in Support of Non-Party Cavalry Portfolio Services, LLC’s Opposition to Plaintiff’s Motion to Compel Compliance with Subpoena; Request for Order Awarding Monetary Sanctions (“Mayilyan Decl.”), Ex. E.) The Court finds Deponent’s response was sufficient.

IV. LEGAL STANDARD

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(Code Civ. Proc., § 1987.1, subd. (a).)

If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(Code Civ. Proc., § 2025.480, subd. (a).)

V. DISCUSSION

Plaintiff seeks to compel Deponent to produce documents in response to the deposition subpoena served on December 5, 2016. In addition to certain general objections and objections on various grounds to individual requests in the subpoena, Deponent objects on the ground that it is an out-of-state non-party witness and the subpoena requests business records that are outside of California.

In Coopman v. Superior Court (1965) 237 Cal.App.2d 656, documents were sought by subpoena from the president of a Nevada corporation. The president was a resident of California, but was not in this state for the purpose of transacting business for the corporation; the corporation at no time had conducted business in the State of California, nor did it have its books or records in the state; and all of the affairs of that corporation were handled by and under the control of agents and attorneys of the corporation located at Reno, Nevada. (Id. at p. 658.) The court stated:

An examination of numerous cases dealing with the power to compel the production of records held outside the jurisdiction by process executed locally . . . reflects that enforcement has been predicated (1) upon the fact that the records belonged to a party to the action over whom or which the court had jurisdiction, or (2) the owner of the records was doing business within the jurisdiction and thereby subject thereto. Even in the latter cases some restraint has been exercised where branch operations are concerned and the records do not apply to transactions within the jurisdiction.

(Coopman v. Superior Court, supra, 237 Cal.App.2d at p. 661.)

The court noted that where a “foreign corporation is for many purposes a resident of a second state because it holds its directors’ meetings within that state, has its principal place of business and does part of the corporate business within that state, and the directors reside within that state, the court of the second state may exercise jurisdiction over the corporation and its resident officers and directors to compel the performance of acts without the state.” (Coopman v. Superior Court In and For San Mateo County, supra, 237 Cal.App.2d at pp. 660-661.)

In this case, Plaintiff contends Deponent is subject to California subpoena jurisdiction because it is registered with the California Secretary of State and actively conducts business in California, such as sending letters similar to the one sent to Plaintiff. Plaintiff also relies on the fact that Deponent has hired California counsel to serve objections to the deposition subpoena.

While it is true Deponent mailed a letter to Plaintiff in California, Plaintiff provides no evidence of any other business conducted by Deponent in California. Further, the evidence before the Court does not demonstrate Deponent holds directors’ meetings in California or has its principal place of business in California. Plaintiff has not sufficiently established a factual basis that would allow this Court to extend its subpoena power to reach Deponent in another state.

To the extent Plaintiff wants documents from Deponent, Plaintiff has the ability to seek those documents pursuant to the Uniform Interstate Depositions and Discovery Act, which sets forth procedures for litigants to pursue out-of-state discovery, and pursuant to the laws of the state where Deponent and the subject records are located. (See Yelp, Inc. v. Hadeed Carpet Cleaning, Inc. (2015) 289 Va. 426, 435.)

In light of the above, the Court does not reach Deponent’s individual objections to specific requests. Plaintiff’s motion to compel compliance with subpoena is DENIED.

VI. MONETARY SANCTIONS

Plaintiff requests monetary sanctions against Deponent in the amount of $2,450. In opposition, Deponent requests monetary sanctions against Plaintiff in the amount of $7,699.

The parties request sanctions pursuant to Code of Civil Procedure sections 1987.2 and 2025.480. Code of Civil Procedure section 1987.2 states that in making an order pursuant to a motion made under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive. Section 2025.480 states the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds the one subject to the sanction acted with substantial justification or other circumstances make the imposition of the sanction unjust.

Plaintiff did not prevail in its motion. Accordingly, Plaintiff’s request for sanctions is DENIED.

As stated above, Deponent seeks sanctions in the sum of $7,699. This is based on 24.70 hours worked by Liana Mayilyan at a rate of $280 per hour and 1.80 hours worked by Tomio B. Narita at a rate of $435 per hour. (Mayilyan Decl., ¶¶ 9-10.) Given Deponent’s insistence in its opposition papers that this motion is essentially the same as the motion recently ruled on in the Newsom case, it is not apparent why more than 26 hours of work were necessary to oppose the motion. The Court finds a reasonable amount of time is eight hours at a rate of $280 per hour and one hour at a rate of $435 per hour. Accordingly, Deponent’s request for sanctions is GRANTED in the amount of $2,675.

The Court will prepare the final order if this tentative ruling is not contested.