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1 David G. Finkelstein (CSB# 47791)
Brian Cohen (CSB #316427)
2 FINKELSTEIN & FUJII, LLP
1528 S. El Camino Real, Suite 306
3 San Mateo, CA 94402
Telephone: (650) 353-4503
4 Facsimile: (650) 312-1803
5 Attorney for Plaintiff(s):
YVETTE MICHEL, PAUL MICHEL,
6 JOHN MICHEL aka JEAN MICHEL
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
IN AND FOR THE COUNTY OF SAN MATEO
9
UNLIMITED JURISDICTION
10
) Case No.: 23-CIV-03423
11 YVETTE MICHEL, PAUL MICHEL, JOHN )
) PLAINTIFFS YVETTE MICHEL, PAUL
12 MICHEL aka JEAN MICHEL, ) MICHEL, JOHN MICHEL aka JEAN
) MICHEL’S MEMORANDUM OF
13 Plaintiff(s), ) POINTS AND AUTHORITIES IN
) SUPPORT OF MOTION TO COMPEL
vs. AMERICAN EXPRESS’S RESPONSE
14 KATHLEEN SULLIVAN aka KATHLEEN )
) TO A THIRD-PARTY SUBPOENA AND
SULLIVAN MICHEL, DOES 1 through 50, FOR MONETARY SANCTIONS
15 inclusive, )
) AGAINST AMERICAN EXPRESS
Defendants.
16 ) Date: May 15, 2024
)
17 ) Time: 2:00 p.m.
) Dept.: 28
18 ) Judge: Nicole S. Healy
)
19 )
) Action Filed: 7/21/2023
20 ) Trial Date: None
)
21
22 I. INTRODUCTION AND STATEMENT OF FACTS
23 Plaintiffs YVETTE MICHEL, PAUL MICHEL, JOHN MICHEL aka JEAN MICHEL bring
24 this Motion to compel responses and documents from third party deponent American Express
25 (“AmEx”). AmEx has shown a blatant disregard for the court system for months. Plaintiffs’ counsel
26 issued a subpoena to AmEx on October 19, 2023. (Cohen Dec. ¶ 2.) The subpoena was served on
27
-1-
28 PLAINTIFFS YVETTE MICHEL, PAUL MICHEL, JOHN MICHEL aka JEAN MICHEL’S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
AMERICAN EXPRESS’S RESPONSE TO A THIRD-PARTY SUBPOENA AND FOR
MONETARY SANCTIONS AGAINST AMERICAN EXPRESS
1 AmEx on October 25, 2023. (Cohen Dec. ¶ 3.) The documents requested in Plaintiffs’ subpoena
2 were to be produced on November 20, 2023 to deposition officer Array. It is now over three months
3 past the date of production listed on Plaintiffs’ subpoena, and Plaintiffs have not even received a
4 response from AmEx, let alone any of the requested documents. This is despite numerous contacts
5 and attempts to follow up by both Plaintiffs’ counsel and Array. (Cohen Dec. ¶ 4.)
6 Accordingly, AmEx should be compelled to provide responses and documents, in their
7 entirety without objections, immediately, and AmEx should be sanctioned in the amount of $3,735
8 for their total disregard of a properly issued third party subpoena. (Cohen Dec. ¶ 5.)
9 II. ARGUMENT
10 “A deposition for production of business records and things” may be used to obtain
11 discovery from third parties. (Code Civ. Proc., § 2020.010(a)(3).) “A deponent who disobeys a
12 deposition subpoena…may be punished for contempt under Chapter 7 (commencing with Section
13 2023.010) without the necessity of a prior order of court directing compliance by the witness. The
14 deponent is also subject to the forfeiture and the payment of damages set forth in Section 1992.”
15 (Code Civ. Proc., § 2020.240.) Failure to respond to a subpoena is sanctionable conduct. (Code Civ.
16 Proc., §§ 2023.010, 2025.410 et seq.,.)
17 “[I]n addition to any other sanctions imposed pursuant to this chapter, a court shall impose a
18 one-thousand-dollar ($1,000) sanction, payable to the requesting party, upon a party, person, or
19 attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court
20 finds…[t]he party, person, or attorney did not respond in good faith to a request for the production
21 of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an
22 inspection demand made pursuant to Section 2031.010.” (Code Civ. Proc., § 2023.050.)
23 In this case, AmEx has refused to respond to or provide any documents in response to a
24 lawfully issued subpoena which was served on AmEx literally months ago. The documents
25 requested in Plaintiffs’ subpoena were to be produced on November 20, 2023 to deposition officer
26 Array. It is now over three months past the date of production listed on Plaintiffs’ subpoena, and
27
-2-
28 PLAINTIFFS YVETTE MICHEL, PAUL MICHEL, JOHN MICHEL aka JEAN MICHEL’S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
AMERICAN EXPRESS’S RESPONSE TO A THIRD-PARTY SUBPOENA AND FOR
MONETARY SANCTIONS AGAINST AMERICAN EXPRESS
1 Plaintiffs have not even received a response from AmEx, let alone any of the requested documents.
2 This is despite numerous contacts and attempts to follow up by both Plaintiffs’ counsel and Array.
3 Accordingly, an order should be issued ordering AmEx to respond to Plaintiffs’ subpoena.
4 In addition, AmEx should be sanctioned in the amount of $3,735 pursuant to Code of Civil
5 Procedure §§ 2020.010 et seq., 2023.010 et seq., 2025.410 et seq., and 2020.240, for failing entirely
6 to respond to Plaintiffs’ subpoena. AmEx has shown a blatant disregard for the court system for
7 months. Plaintiff has incurred substantial attorney fees in bringing this motion, and sanctions in the
8 amount of $1,000 in addition to this amount are also authorized. (Code Civ. Proc., § 2023.050.)
9 Accordingly, Defendant should be sanctioned in the amount of $3,735.
10 III. CONCLUSION
11 For all of these reasons provided above, AmEx should be compelled to provide a response to
12 Plaintiffs’ subpoena and AmEx should be sanctioned in the amount of $3,735, reflecting attorney
13 fees incurred by Plaintiffs in addition to the addition $1,000 in statutory sanctions. (Code Civ. Proc.,
14 § 2023.050.)
15
16
17
FINKELSTEIN & FUJII, LLP
18
19
20 Dated: March 11, 2024 By: __________________________________
Brian Cohen
21 Attorney for Plaintiffs
YVETTE MICHEL, PAUL MICHEL,
22 JOHN MICHEL aka JEAN MICHEL
23
24
25
26
27
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28 PLAINTIFFS YVETTE MICHEL, PAUL MICHEL, JOHN MICHEL aka JEAN MICHEL’S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
AMERICAN EXPRESS’S RESPONSE TO A THIRD-PARTY SUBPOENA AND FOR
MONETARY SANCTIONS AGAINST AMERICAN EXPRESS
Preview
1 David G. Finkelstein (CSB# 47791) Brian Cohen (CSB #316427) 2 FINKELSTEIN & FUJII, LLP 1528 S. El Camino Real, Suite 306 3 San Mateo, CA 94402 Telephone: (650) 353-4503 4 Facsimile: (650) 312-1803 5 Attorney for Plaintiff(s): YVETTE MICHEL, PAUL MICHEL, 6 JOHN MICHEL aka JEAN MICHEL 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SAN MATEO 9 UNLIMITED JURISDICTION 10 ) Case No.: 23-CIV-03423 11 YVETTE MICHEL, PAUL MICHEL, JOHN ) ) PLAINTIFFS YVETTE MICHEL, PAUL 12 MICHEL aka JEAN MICHEL, ) MICHEL, JOHN MICHEL aka JEAN ) MICHEL’S MEMORANDUM OF 13 Plaintiff(s), ) POINTS AND AUTHORITIES IN ) SUPPORT OF MOTION TO COMPEL vs. AMERICAN EXPRESS’S RESPONSE 14 KATHLEEN SULLIVAN aka KATHLEEN ) ) TO A THIRD-PARTY SUBPOENA AND SULLIVAN MICHEL, DOES 1 through 50, FOR MONETARY SANCTIONS 15 inclusive, ) ) AGAINST AMERICAN EXPRESS Defendants. 16 ) Date: May 15, 2024 ) 17 ) Time: 2:00 p.m. ) Dept.: 28 18 ) Judge: Nicole S. Healy ) 19 ) ) Action Filed: 7/21/2023 20 ) Trial Date: None ) 21 22 I. INTRODUCTION AND STATEMENT OF FACTS 23 Plaintiffs YVETTE MICHEL, PAUL MICHEL, JOHN MICHEL aka JEAN MICHEL bring 24 this Motion to compel responses and documents from third party deponent American Express 25 (“AmEx”). AmEx has shown a blatant disregard for the court system for months. Plaintiffs’ counsel 26 issued a subpoena to AmEx on October 19, 2023. (Cohen Dec. ¶ 2.) The subpoena was served on 27 -1- 28 PLAINTIFFS YVETTE MICHEL, PAUL MICHEL, JOHN MICHEL aka JEAN MICHEL’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL AMERICAN EXPRESS’S RESPONSE TO A THIRD-PARTY SUBPOENA AND FOR MONETARY SANCTIONS AGAINST AMERICAN EXPRESS 1 AmEx on October 25, 2023. (Cohen Dec. ¶ 3.) The documents requested in Plaintiffs’ subpoena 2 were to be produced on November 20, 2023 to deposition officer Array. It is now over three months 3 past the date of production listed on Plaintiffs’ subpoena, and Plaintiffs have not even received a 4 response from AmEx, let alone any of the requested documents. This is despite numerous contacts 5 and attempts to follow up by both Plaintiffs’ counsel and Array. (Cohen Dec. ¶ 4.) 6 Accordingly, AmEx should be compelled to provide responses and documents, in their 7 entirety without objections, immediately, and AmEx should be sanctioned in the amount of $3,735 8 for their total disregard of a properly issued third party subpoena. (Cohen Dec. ¶ 5.) 9 II. ARGUMENT 10 “A deposition for production of business records and things” may be used to obtain 11 discovery from third parties. (Code Civ. Proc., § 2020.010(a)(3).) “A deponent who disobeys a 12 deposition subpoena…may be punished for contempt under Chapter 7 (commencing with Section 13 2023.010) without the necessity of a prior order of court directing compliance by the witness. The 14 deponent is also subject to the forfeiture and the payment of damages set forth in Section 1992.” 15 (Code Civ. Proc., § 2020.240.) Failure to respond to a subpoena is sanctionable conduct. (Code Civ. 16 Proc., §§ 2023.010, 2025.410 et seq.,.) 17 “[I]n addition to any other sanctions imposed pursuant to this chapter, a court shall impose a 18 one-thousand-dollar ($1,000) sanction, payable to the requesting party, upon a party, person, or 19 attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court 20 finds…[t]he party, person, or attorney did not respond in good faith to a request for the production 21 of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an 22 inspection demand made pursuant to Section 2031.010.” (Code Civ. Proc., § 2023.050.) 23 In this case, AmEx has refused to respond to or provide any documents in response to a 24 lawfully issued subpoena which was served on AmEx literally months ago. The documents 25 requested in Plaintiffs’ subpoena were to be produced on November 20, 2023 to deposition officer 26 Array. It is now over three months past the date of production listed on Plaintiffs’ subpoena, and 27 -2- 28 PLAINTIFFS YVETTE MICHEL, PAUL MICHEL, JOHN MICHEL aka JEAN MICHEL’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL AMERICAN EXPRESS’S RESPONSE TO A THIRD-PARTY SUBPOENA AND FOR MONETARY SANCTIONS AGAINST AMERICAN EXPRESS 1 Plaintiffs have not even received a response from AmEx, let alone any of the requested documents. 2 This is despite numerous contacts and attempts to follow up by both Plaintiffs’ counsel and Array. 3 Accordingly, an order should be issued ordering AmEx to respond to Plaintiffs’ subpoena. 4 In addition, AmEx should be sanctioned in the amount of $3,735 pursuant to Code of Civil 5 Procedure §§ 2020.010 et seq., 2023.010 et seq., 2025.410 et seq., and 2020.240, for failing entirely 6 to respond to Plaintiffs’ subpoena. AmEx has shown a blatant disregard for the court system for 7 months. Plaintiff has incurred substantial attorney fees in bringing this motion, and sanctions in the 8 amount of $1,000 in addition to this amount are also authorized. (Code Civ. Proc., § 2023.050.) 9 Accordingly, Defendant should be sanctioned in the amount of $3,735. 10 III. CONCLUSION 11 For all of these reasons provided above, AmEx should be compelled to provide a response to 12 Plaintiffs’ subpoena and AmEx should be sanctioned in the amount of $3,735, reflecting attorney 13 fees incurred by Plaintiffs in addition to the addition $1,000 in statutory sanctions. (Code Civ. Proc., 14 § 2023.050.) 15 16 17 FINKELSTEIN & FUJII, LLP 18 19 20 Dated: March 11, 2024 By: __________________________________ Brian Cohen 21 Attorney for Plaintiffs YVETTE MICHEL, PAUL MICHEL, 22 JOHN MICHEL aka JEAN MICHEL 23 24 25 26 27 -3- 28 PLAINTIFFS YVETTE MICHEL, PAUL MICHEL, JOHN MICHEL aka JEAN MICHEL’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL AMERICAN EXPRESS’S RESPONSE TO A THIRD-PARTY SUBPOENA AND FOR MONETARY SANCTIONS AGAINST AMERICAN EXPRESS