KNM Outdoor Tribe LLC vs Roulette William Smith

Case Number

23CV02416

Case Type

Hearing Date / Time

Mon, 08/05/2024 - 10:00

Nature of Proceedings

CMC; Motion: Enforce re Enforce Deposition Subpoena

Tentative Ruling

KNM Outdoor Tribe, LLC v. Roulette William Smith         

Case No. 23CV02416

Hearing Date: August 5. 2024                                                 

HEARING:              Motion of KNM Outdoor Tribe, LLC to Enforce Deposition Subpoena Served on Brigitta ‘Anu’ Wissmann

                                                         

ATTORNEYS:        For Plaintiff and Cross-Defendant KNM Outdoor Tribe, LLC and Cross-Defendant Scott Wilkinson: Jill L. Friedman, Paola Delgadillo

                                    For Defendant and Cross-Complainant Roulette William Smith: Mark T. Coffin

                                   

TENTATIVE RULING:

1. The motion for KNM Outdoor Tribe, LLC to enforce the deposition subpoena served on Brigitta ‘Anu’ Wissmann is granted as follows:

            a. Brigitta ‘Anu’ Wissmann is ordered to personally appear for deposition on August 21, 2024, at 9:00 a.m., at Reetz, Fox & Bartlett located at 116 East Sola, Santa Barbara, and to bring with her copies of any documents specified in the previously served deposition subpoena that are in her custody or control.

            b. No monetary sanctions are ordered at this time.

2. KNM Outdoor Tribe, LLC is to give notice of this ruling to all parties as well as Brigitta ‘Anu’ Wissmann no later than August 6, 2024.

Background: 

This action commenced on June 6, 2023, by the filing of the complaint by KNM Outdoor Tribe, LLC (“KNM”) against Roulette William Smith (“Smith”) asserting causes of action for specific performance and breach of contract.

As alleged in the complaint:

“The Property which is the subject of this action is an improved 2.6-acre parcel of land located at 2600 Foothill Road, Santa Barbara, in Santa Barbara County, California (APN 023-180-007) (the ‘Property’).” (Complaint, ¶ 2.) “On or about May 1, 2023, a written Property Sale and Purchase Agreement was entered into between Plaintiff and Defendant (the ‘Purchase Agreement’) committing to sell and transfer the Property from Defendant to Plaintiff.” (Complaint, ¶ 4.)

“Plaintiff has requested performance of the Purchase Agreement and has performed or is ready, willing, and able to perform, all conditions, covenants, and promises required by it on its part to be performed in accordance with the terms and conditions of the Purchase Agreement. This action constitutes further request for performance of the Purchase Agreement.” (Complaint, ¶ 7.) “Defendant has failed and refused, and continues to fail and refuse, to perform the conditions of the Purchase Agreement on his part in that he refuses to execute a conveyance of the

Property as provided in the Purchase Agreement.” (Complaint, ¶ 8.) “Plaintiff has requested mediation in accordance with paragraph XVIII(a) of the Purchase Agreement. Defendant has refused to participate.” (Complaint, ¶ 9.)

On July 25, 2023, Smith filed his answer to the complaint admitting some of the allegations, denying some of the allegations, and setting forth 20 affirmative defenses.

Also on July 25, 2023, Smith filed a cross-complaint against KNM and Scott Wilkinson (“Wilkinson”) asserting causes of action for: (1) Civil Assault and Battery; (2) Fraud; (3) Negligent Misrepresentation; (4) Elder Abuse; and (5) Declaratory Relief.

As alleged in the cross-complaint:

“On or about April 30, 2023, Defendant SCOTT WILKINSON initiated a Zoom call with Cross-Complainant. Participants included Cross-Complainant ROULETTE SMITH, Nicole Smith, Todd Smith, SCOTT WILLKINSON, Mr. WILKINSON’s fiancé Melody, and some of WILKINSON’S adult children.” (Cross-Complaint, ¶ 9.) “During the April 30, 2023 Zoom call, Mr. WILKINSON discussed his proposed ideas for purchasing the PROPERTY. Cross-Complainant did not agree to Mr. WILKINSON’s proposals. Ms. WILKINSON invited Mr. SMITH to dinner the following evening, at a Japanese restaurant in Santa Barbara (which upon information and belief is named ‘Oku’).” (Cross-Complaint, ¶ 10.)

“On May 1, 2023, Cross-Complainant attended a dinner with Cross-Defendant and others. A large amount of Japanese beer was consumed by all parties. At the end of the dinner, Cross-Defendant WILKINSON insisted that Cross-Complainant sign a written ‘sales contract’ to sell his interest in the PROPERTY.” (Cross-Complaint, ¶ 11.) “Prior to the dinner, Cross-Complainant SMITH had never seen a ‘sales agreement’ of any kind from Mr. WILKINSON, nor did he review the sales contract that Cross-Defendant had prepared that evening. Mr. SMITH told Mr. WILKINSON at the dinner that Cross- Complainant was not prepared to sign a contract at that time, because the parties had not reached agreement on several necessary terms, and because Cross-Complainant required any contracts to be reviewed and approved by legal counsel and by his adult children.” (Cross-Complaint, ¶ 12.) “At the May 1, 2023 dinner, Mr. WILKINSON physically grabbed Cross-Complainant’s hand while Mr. SMITH was holding a pen. While holding SMITH’s hand, WILKINSON attempted to forge Cross-Complainant’s signature on the last page of the agreement, above the blank line for his signature. Mr. SMITH once again told Cross-Defendant in definitive terms that he would not sign the purported agreement.” (Cross-Complaint, ¶ 13.)

“Upon learning that Cross-Complainant would not execute the purported contract, Mr. WILKINSON wrote the words ‘I Intend to Sale to Scott’ at the bottom of the page . . .. Cross-Defendant WILKINSON also wrote the phrase ‘* This precedes Mr. Smith + Todd + Nicole reviewing to ensure legal entity [sic],’ along with several arrows and a circle.” (Cross-Complaint, ¶ 14.) “Cross-Complainant signed his actual

signature inside the circle, next to the statement ‘I Intend to Sale to Scott . . .’ as a letter of intent. In so doing, Cross-Complainant memorialized his willingness to sell the PROPERTY, but only after the remaining terms had been agreed upon by the parties, and after the entire contract had been reviewed and approved by Cross-Complainant’s legal counsel, and by his adult children Todd and Nicole.” (Cross-Complaint, ¶ 15.)

Discovery has commenced and KNM moves to enforce a deposition subpoena served on non-party Brigitta ‘Anu’ Wissmann (“Wissmann”).

Wissmann has not filed an opposition. However, she late-filed a declaration, on July 30, 2024, which addresses her finances, her thoughts about this action, and the effects on her well-being.

Analysis:

“(a) Any of the following methods may be used to obtain discovery within the state from a person who is not a party to the action in which the discovery is sought:

“(1) An oral deposition under Chapter 9 (commencing with Section 2025.010).

“(2) A written deposition under Chapter 11 (commencing with Section 2028.010).

“(3) A deposition for production of business records and things under Article 4 (commencing with Section 2020.410) or Article 5 (commencing with Section 2020.510).

“(b) Except as provided in subdivision (a) of Section 2025.280, the process by which a nonparty is required to provide discovery is a deposition subpoena.” (Code Civ. Proc., § 2020.010.)

On March 24, 2024, Wissmann was served a deposition subpoena for personal appearance and production of documents with an appearance date of April 18, 2024, at 116 E. Sola Street, Santa Barbara. (Friedman Dec., ¶ 3 & Exh. A.) A friend of Wissmann contacted KNM’s counsel and explained that Wissmann was declining to attend the deposition, that she was afraid of the legal process, and that she was very busy. (Friedman Dec., ¶¶ 6-7.) Following several attempts to convince Wissmann to attend her deposition, and varying excuses from Wissmann as to why she either could not or would not appear, Wissmann was served with a notice of continued deposition for April 25, 2024. (Friedman Dec., ¶ 7 & Exh. C.) Thereafter, Wissmann provided documentation that she had contracted Covid, so the deposition was rescheduled for May 24, 2024. Wissmann was personally served with a notice of second continuance of deposition. (Friedman Dec., ¶¶ 18-19 & Exh. D.) Wissmann again failed to appear for her deposition.

KNM represents, primarily through declarations, that Wissmann has been an acquaintance and tenant of Smith at the property for approximately 30 years. It is unknown whether Wissmann has a written tenant agreement or if she claims any possessory or financial interest in the property. Wissmann has rented out the property through online services such as Airbnb. Wissmann is personally familiar with Smith and the transaction at issue in this case and may possess information and documents relevant to the disputed transaction, the condition of the property, valuation of the property, and any interest that Wissmann herself has in the property.

There is a split of authority relative to KNM’s argument that Wissmann was required to file a motion to quash the subpoena. The court finds that as a non-party to this action, Wissmann may, but is not required to, file a motion to quash. (See Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282.)

However, Wissmann is required to comply with a valid subpoena, or, to provide a legally sufficient reason that she should not be required to do so. Wissmann has failed to provide a legally sufficient reason. The crux of Wissmann’s declaration appears to be that she has no interest in getting involved in this action and that it causes her stress. While the court does understand that testifying is stressful to most people, discovery is vital in the pursuit of the truth. KNM, as well as the other parties to this action, have a right to conduct discovery in an effort to discover admissible evidence. It does appear to the court that Wissmann has information that is either admissible, or reasonably calculated to lead to the discovery of admissible evidence.

For the above reasons, Wissmann will be ordered to comply with the deposition subpoena, appear in person, and produce documents.

Counsel for KNM has filed a supplemental declaration wherein it is represented that Wissmann is willing to attend her deposition, but was not available on Mondays or Wednesdays. Counsel for KNM conferred with all counsel and both August 16, 2024, and August 21, 2024, were available, with the 21st being the preferred date. August 21, 2024 will be the date of the deposition.

Although the court is authorized to find Wissmann in contempt for disobeying the deposition subpoena, pursuant to Code of Civil Procedure section 2020.240, the court will decline to do so at this time.

The court has reviewed and considered the facts as presented by KNM, as well as the representations made by Wissmann in her declaration. The court finds that the imposition of the sanctions sought by KNM would be unjust under the circumstances at this time. However, should Wissmann continue to refuse to comply with the deposition subpoena, and this order, or refuse to answer questions without legally supported grounds for doing so, the court will be inclined to issue monetary sanctions against her and in favor of KNM.