Mystica Fleury vs Byron Richard Tarnutzer et al

Case Number

22CV02886

Case Type

Hearing Date / Time

Fri, 10/13/2023 - 10:00

Nature of Proceedings

Motions to Quash

Tentative Ruling

For the reasons set forth below, the motions to quash deposition subpoenas and requests for monetary sanctions are denied.

Background:

This action was commenced on July 26, 2022, when plaintiff Mystica Fleury (Fleury) filed a complaint against defendants Byron Richard Tarnutzer (aka Rick Tarnutzer), Vonna Carol Tarnutzer, and American Interior, alleging nine causes of action related to an underlying transaction in which defendant Rick Tarnutzer (Rick) induced Fleury to purchase a run-down property and hire him and his wife, Vonna Carol Tarnutzer (Vonna), to perform design and construction work to remodel the property. [Note: In order to avoid any confusion, the Court will refer to the Tarnutzer defendants by their first names; no disrespect is intended.] The complaint alleged that in reliance on various representations made by defendants, plaintiff paid substantial sums of money to defendants for their work. It alleged further that defendants were not licensed contractors, failed to obtain any permits for the work, failed to provide promised documentation of work completed, invoices, proof that subcontractors had been paid, failed to perform the work in a workmanlike manner, charged in excess of the hourly wage they had promised the work would be performed for, charged a fee for acting as general contractor when they had promised they would not do so, impeded progress on the project by failing to timely pay subcontractors, and stopped work prior to completion when plaintiff challenged the billing.

On October 10, 2022, Rick and Vonna appeared in this action through counsel, by filing a demurrer to and motion to strike the complaint, setting their hearings for February 2, 2023.

On November 16, 2022, plaintiff’s original counsel, Joshua E. Lynn of Lynn & O’Brien LLP, substituted out of the action as counsel for Fleury, and attorney Timothy M. Ryan of The Ryan Firm, APC, substituted into the action on Fleury’s behalf.

On December 1, 2022, Fleury, through Ryan, issued subpoenas to Airbnb, Inc. and Expedia, Inc. seeking documents related to property located at 540 Owen Road, Santa Barbara. The production dates were continued several times as the parties met and conferred regarding the appropriateness of the subpoenas.

On January 23, 2023, Fleury filed her first amended complaint, which mooted the hearings on the demurrer and motion to strike.

On June 22, 2023, Fleury advised Airbnb, Inc. and Expedia, Inc. that production was delayed until July 31, 2023.

On June 23, 2023, Ryan was disqualified. On July 26, 2023, current counsel, Dimitri P. Gross, substituted in as counsel for plaintiff. Fleury was unrepresented between June 23, 2023, and July 26, 2023.

On July 21, 2023, 10 days prior to the continued date of production, and when Fleury was unrepresented by counsel, the Tarnutzer defendants filed the present motions to quash the deposition subpoenas for production of business records from Airbnb, Inc. and Expedia, Inc. The motions are identical except for the names of the businesses. Fleury filed her opposition on October 2, 2023, and request sanctions against the Tarnutzer defendants.

On October 2, 2023, Fleury, through Gross, withdrew the subpoenas and advised the Tarnutzer defendants’ counsel that the subpoenas were being withdrawn. Fleury requested that the motions to quash be taken off-calendar, but the Tarnutzer defendants wish to continue to pursue sanctions for having to bring the motions. As the subpoenas have been withdrawn, the sole remaining issue is each parties’ request for sanctions.

Fleury offered to pay the Tarnutzer defendants $2,000.00 out of any settlement or judgment for the motions to be taken off-calendar. The Tarnutzer defendants rejected to offer and countered that they would accept $2,000.00, in exchange for taking the motions off-calendar, immediately.

Analysis:

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Code Civ. Proc., § 2023.040.)

The requirement, that the notice identify every person, party, and attorney against whom the sanction is sought, is mandatory.

“ ‘As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose.’ ” [Citation.] “ ‘We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature’s enactment generally is the most reliable indicator of legislative intent.’ ” [Citations.] The plain meaning controls if there is no ambiguity in the statutory language. [Citation.]” (People v. Cornett (2012) 53 Cal.4^th 1261, 1265.)

“Ordinarily, the term ‘shall’ is interpreted as mandatory and not permissive. Indeed, “ ‘the presumption [is] that the word “shall” in a statute is ordinarily deemed mandatory and “may” permissive.’ ” [Citation.]” (People v. Standish (2006) 38 Cal.4^th 858, 869.)

Here, the legislature chose to use the word “shall” rather than “may.” This plainly indicates that the legislature meant that the requirements of the notice are mandatory rather than discretionary. The Tarnutzer Defendants failed to comply with the mandatory requirement that they identify every person, party, and attorney against whom the sanction is sought. In reply, the Tarnutzer defendants state that because plaintiff is the only opposing party to the motion, “there can be no dispute that it applies to plaintiff.” (Reply, p. 3, ll. 8-10.) The court disagrees that the request is clear. Sanctions could have been sought against plaintiff, plaintiff’s current counsel, or plaintiff’s prior counsel, yet the notice does not specify which. As such, the request for sanctions will be denied on that basis.

In the alternative: 

“Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or 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.” (Code Civ. Proc., § 1987.2, subd. (a).)

The legislature has clearly made the imposition of sanctions discretionary. Given the totality of the circumstances, including the willingness of counsel to engage in discussions regarding the appropriateness of the subpoenas, and their eventual withdrawal, the court finds that the imposition of sanctions would be unjust. As such, the court will exercise its discretion and decline to award sanctions against, or in favor of, any party or attorney.