I. SUMMARY

*1 On February 14, 2023, Plaintiffs filed a Motion to Compel Production of Documents in Response to Plaintiffs' Subpoena to Third Party Onyx Relocation, Inc. (“Motion to Compel”) which is noticed for hearing before this Court on March 14, 2023 at 9:30 a.m.[1] Plaintiffs essentially seek an order compelling Third Party Onyx Relocation, Inc. (“Onyx”) to provide materials responsive to five categories of documents identified in a subpoena directed to Onyx (hereinafter “Subpoena Request Nos. 1, 4, 7, 11 and 13” or “Subpoena Requests in Issue”).

Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds the Motion to Compel appropriate for decision without oral argument. The hearing on this Motion to Compel is hereby vacated and taken off calendar, and the Motion to Compel is submitted for decision.

Based upon the Court's consideration of the submissions made in connection with the Motion to Compel, the record, and the pertinent facts and law, and for the reasons explained herein, the Court grants this Motion to Compel and orders Third Party Onyx to produce to Plaintiffs the documents called for by this Order by not later than March 20, 2023. Plaintiffs are directed forthwith to serve a copy of this Order on Onyx and promptly to file a proof of service demonstrating that such service has been made.

II. BACKGROUND

A. Pleadings/Deadlines

On February 1, 2022, Southern California Housing Rights Center, Inc. d/b/a Housing Rights Center (“HRC”) and 16 individual tenants filed the Complaint (alternatively, “Comp.”), alleging that ten Defendants – K3 Holdings, K3 Manager, Western 19 LLC, Oxford 19 LLC, Kenmore 20 LLC, Mariposa 20 LLC, Ave 55 19 LLC, Nathan Kadisha, Michael Kadisha and Angel Escobar engaged in discriminatory housing practices, in violation of state and federal law, by targeting for gentrification apartment buildings specifically occupied by Latinx families in the Koreatown and Highland Park neighborhoods of Los Angeles. (Docket No. 1). Defendants consist of two principals (Nathan Kadisha and Michael Kadisha), their alleged holding and management companies (K3 Holdings and K3 Manager), five individual building LLCs (the remaining entity Defendants), and one of their alleged employees/agents (Angel Escobar). (Comp. ¶¶ 21-30). The Complaint alleges that Defendants acquired several buildings, unlawfully removed Latinx families from them, renovated the buildings, and ultimately marketed the apartments to a new demographic selected by Defendants on the basis of race, color, ethnicity, national origin, familial status, age, disability, or source of income that completely excluded the former Latinx tenants. (Comp. ¶¶ 31-60). The Complaint identifies thirty older apartment buildings occupied by low-income Latinx families in Koreatown and Highland Park neighborhoods that Defendants allegedly targeted for acquisition and gentrification since 2019. (Comp. ¶ 34).

*2 Plaintiffs' first claim asserts a violation of the Fair Housing Act (“FHA”), alleging that Defendants discriminated against them, among other things, on the basis of race, color, or national origin. (Comp. ¶¶ 72-75) (citing 42 U.S.C. §§ 3604(a)-(e), 3617; 24 C.F.R. §§ 100.60(b)(4)-(b)(5), 100.60(b)(7), 100.65(b)(1)-(b)(2), 100.65(b)(4), 100.65(b)(7), 100.70(a)-(c)(3), 100.75(c)(1)-(c)(3), 100.80(b)(4), 100.400(c)(1)-(c)(2), 100.400(c)(6). Plaintiffs assert both disparate impact and disparate treatment theories of liability. (Comp. ¶ 74) (citing 42 U.S.C. § 3604(c); 24 C.F.R. §§ 100.5, 100.7).

Plaintiffs also bring state law claims for violations of California's Fair Employment and Housing Act (“FEHA”) (second claim) and Unruh Civil Rights Act (third claim); unlawful business practices (fourth claim); tenant harassment (fifth claim); substandard conditions (sixth claim); nuisance (seventh claim); quiet enjoyment (eighth claim); negligence (ninth claim); rent stabilization (tenth claim), unlawful rent (eleventh claim); unlawful construction (twelfth claim); unlawful buyouts (thirteenth claim); and tenant harassment (fourteenth claim). (Comp. ¶¶ 76-115) (citing Cal. Bus. & Prof. Code §§ 17200, 17204-17208; Cal. Civ. Code §§ 51, 52(a), 52(e), 1714, 1940.2, 1940.2(b), 1941-1941.1, 1941.3-1941.5, 1942.4(b), 1942.5(h), 1947.11-1947.11(a), 3281, 3333, 3345, 3479-3481, 3491, 3493, 3501; Cal. Govt. Code §§ 12927(c)(1), 12955, 12955(a), 12955(c)-(d), 12955(f)-(h), 12955(k), 12955.6-12955.8; 12989.2; Cal. Health & Safety Code §§ 17920.10, 17920.3; Cal. Penal Code §§ 484, 518; 2 C.R.R. §§ 12005(1), 12010, 12040-12042, 12161(b)(1)-(b)(2), 12161(b)(5), 12161(b)(11)-(b)(12); LAMC Chap. IV, Art. 5.3; LAMC Chap. XV, Arts. 151-52; LAMC §§ 45.35, 151.10, 151,31(F), 152.07(E)). Plaintiffs seek injunctive and declaratory relief and compensatory, statutory and punitive damages. (Comp. §§ 116-21).

On April 8, 2022 and April 25, 2022, Defendants filed their Answers, responding to the allegations in the Complaint and asserting multiple affirmative defenses. (Docket Nos. 32, 43).

On June 7, 2022, the District Judge issued an Order Re: Jury Trial, which, among other things, set December 19, 2022 as the deadline for initial expert disclosures, January 30, 2023 as the deadline for rebuttal expert disclosures, March 13, 2023 as the non-expert discovery cut-off, and April 3, 2023 as the expert discovery cut-off. (Docket No. 53). The District Judge thereafter granted certain of the parties' stipulated requests to extend certain deadlines, ultimately extending the initial expert disclosure deadline to February 27, 2023, the rebuttal expert disclosure deadline to March 27, 2023, the non-expert discovery cut-off to March 27, 2023, and the expert discovery cut-off to April 17, 2023. (Docket Nos. 101, 103; Leggett Ex. 1).

B. Pertinent Facts Relating to Discovery Requests in Issue

Based on interrogatory responses from Defendant Michael Kadisha, it appears that at least such Defendant “contracted with Onyx Relocation, Inc. beginning on or around October 14, 201 [sic], for certain relocation services related to [multiple] properties [in issue][,]” that two specified individuals (“Natalia” and “Darby”) at specified email addresses, who were believed to be Onyx employees, “received one thousand [dollars] ($1000) to initiate the voluntary buyout process and three thousand dollars ($3000) if the tenant voluntarily agreed to a buyout[,]”[2] that another individual (“Sandy Newman”) with a specified email address was also believed to be an Onyx employee, and that Onyx was paid approximately $213,300.00 total for services. (Leggett Decl. ¶ 19; Leggett Ex. 10).

*3 On January 3, 2023, Plaintiffs personally served a Subpoena to Produce Documents (“Subpoena”) upon Onyx, calling for Onyx to produce on January 10, 2023, fourteen categories of documents, including the five Subpoena Requests in Issue – Subpoena Request Nos. 1, 4, 7, 11 and 13.[3] (Leggett Decl. ¶ 4; Leggett Exs. 2, 3). Neither Onyx nor Defendants objected to the Subpoena. (Leggett Decl. ¶ 6).

On Friday, January 20, 2023 – the compliance deadline – Onyx's President, Shelby Istrin, emailed Plaintiffs' counsel seeking an extension of the deadline to produce the documents called for by the Subpoena to “the end of next week.” (Leggett Decl. ¶ 7; Leggett Ex. 4). On January 21, 2023, Plaintiffs granted Onyx's/Istrin's request, and extended the Subpoena compliance deadline to Friday, January 27, 2023. (Leggett Decl. ¶ 8; Leggett Ex. 5).

On January 30, 2023, apparently having not received documents called for by the Subpoena from Onyx, Plaintiffs' counsel emailed Onyx/Istrin asking when Onyx would produce documents. (Leggett Decl. ¶ 9;[4] Leggett Ex. 6). As of the execution of the Leggett Declaration on February 14, 2023, Plaintiffs' counsel had not received a response to this email from Istrin or any other representative of Onyx. (Leggett Decl. ¶ 10).

On February 2, 2023, apparently still having not received documents called for by the Subpoena from Onyx, Plaintiffs' counsel emailed Onyx/Istrin asking when Plaintiffs could expect to receive the subpoenaed documents, stating that Plaintiffs wished to avoid filing a motion to compel production. (Leggett Decl. ¶ 11; Leggett Ex. 7). As of the execution of the Leggett Declaration on February 14, 2023, Plaintiffs' counsel had not received a response to this email from Istrin or any other representative of Onyx. (Leggett Decl. ¶ 12).

*4 On February 3, 2023, Plaintiffs' counsel emailed Onyx/Istrin asking for availability to meet and confer regarding Onyx's failure to respond to the Subpoena, and alternatively requesting that Onyx provide the subpoenaed documents by 5:00 p.m. that day. (Leggett Decl. ¶ 13; Leggett Ex. 8). As of the execution of the Leggett Declaration on February 14, 2023, Plaintiffs' counsel had not received a response to this email from Istrin or any other representative of Onyx. (Leggett Decl. ¶ 14).

On February 6, 2023, Plaintiffs' counsel again emailed Onyx/Istrin, asking for availability to meet and confer regarding Onyx's failure to respond to the Subpoena. (Leggett Decl. ¶ 15; Leggett Ex. 9). As of the execution of the Leggett Declaration on February 14, 2023, Plaintiffs' counsel had not received a response to this email from Istrin or any other representative of Onyx. (Leggett Decl. ¶ 16).

As of the execution of the Leggett Declaration on February 14, 2023, no attorney had contacted Plaintiffs' counsel on behalf of Onyx, and to date, neither Onyx nor Defendants have sought a protective order or to quash the Subpoena. (Leggett Decl. ¶¶ 17, 18; see generally Docket).

On February 14, 2023, Plaintiffs emailed a copy of the Motion to Compel to Onyx directly and to Onyx's registered agent for service of process, and personally served both. (Leggett Decl. ¶ 26).

III. PERTINENT LAW

Pursuant to Rule 45 of the Federal Rules of Civil Procedure, any party may serve a subpoena commanding a non-party witness to, inter alia, “produce designated documents [or] electronically stored information....” Fed. R. Civ. P. 45(a)(1)(A)(iii).

The scope of discovery allowed under a Rule 45 subpoena is the same as the scope of discovery allowed under Rule 26. Zucchella v. Olympusat, Inc., 2020 WL 13250450, *4 (C.D. Cal. Apr. 1, 2020); Much v. Gessesse, 339 F.R.D. 625, 629 (C.D. Cal. 2018). Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

If a subpoena commands the inspection and copying of documents, a non-party witness may challenge the subpoena by serving on the party or attorney designated in the subpoena a written objection before the earlier of the time specified for compliance or 14 days after the subpoena is served. See Fed. R. Civ. P. 45(d)(2)(B). A nonparty's failure to timely make objections to a Rule 45 subpoena duces tecum generally requires the court to find that any objections have been waived. Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005) (citations omitted). However, in unusual circumstances and for good cause, the failure timely to act will not bar consideration of objections to a Rule 45 subpoena. Id. (citations and quotation marks omitted).

A party cannot object to a subpoena duces tecum served on a nonparty, but rather, must seek a protective order or make a motion to quash. Id. (citations omitted).

IV. DISCUSSION, FINDINGS AND ORDERS

First, as Onyx has not objected to the Subpoena Requests in Issue or filed a response to the Motion to Compel, and as no Defendant has filed a motion to quash or protective order or a response to the Motion to Compel, and as no unusual circumstances or good cause have been shown, the Court finds that any objections to the Subpoena Requests in Issue have been waived.

*5 Second, for the reasons argued by Plaintiffs (see Plaintiffs' Memo at 7-10), the Court finds that the discovery sought by the Subpoena Requests in Issue is relevant and proportional to the needs of the case.

Accordingly, third, the Court finds that the Motion to Compel is well-taken and grants it.

By not later than March 20, 2023, Third Party Onyx shall produce to Plaintiffs all documents (as such term is defined in the Subpoena) in its possession, custody or control responsive to Subpoena Request Nos. 1, 4, 7, 11 and 13.

Plaintiffs shall forthwith serve a copy of this Order on Onyx and promptly file a proof of service demonstrating that such service has been made.

IT IS SO ORDERED.