Seton Hall University vs. Spitz

dismissal. Here, Petitioner filed its petition to commence this action on July 9, 2021, and therefore more than five years have elapsed since commencement without this action being brought to trial.

The court has raised this issue with Petitioner multiple times, and Petitioner has said they would bring a motion to address it. The current motion, however, does not appear to address the five-year issue. Petitioner previously has indicated they would like a conviction in the underlying criminal case, but one still has not been obtained and Petitioner nonetheless brought this action. Indeed, multiple forfeiture statutes, including the one under which this motion is brought, provide that a conviction is not required.

Accordingly, Petitioner should be prepared to address these issues at the time of the hearing.

14. Seton Hall Before the court are the following motions filed by University vs. respondent Eric Spitz (Respondent): (1) motion to quash Spitz deposition subpoena, or in the alternative for a protective order and to vacate or modify the June 1, 2026 order; and

(2) motion to vacate the May 29, 2026 monetary sanctions order. For the reasons set forth below, both motions are DENIED.

Motion No. 1: Motion to Quash (ROA 150)

Code of Civil Procedure section 1987.1 provides “upon motion reasonably made” by a party or witness, a court “may make an order quashing [a] subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1, subd. (a).)

Respondent seeks to quash the deposition subpoena served on Respondent that is the subject of this action (Subpoena), or alternatively, he seeks a protective order barring compelled disclosure of Respondent’s confidential sources, unpublished newsgathering materials, or journalistic work product, on the grounds Respondent is a newsperson and the subpoena seeks materials protected by the California Shield Law and the First Amendment reporter’s privilege.

As an initial matter, as petitioner Seton Hall University (Petitioner) points out, the motion is unaccompanied by a separate statement. California Rules of Court, rule 3.1345(a)(5) requires a separate statement to be filed for any motion to quash the production of documents at a deposition. Therefore, to the extent Respondent seeks to quash the twenty-four requests for production of

documents included in the deposition subpoena, the motion is denied on this basis. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893 [trial court was well within its discretion to deny motion to compel discovery on basis party did not comply with separate statement requirement].)

The motion also is not “reasonably made” within the meaning of Code of Civil Procedure section 1987.1. The Subpoena was issued on December 1, 2025, for a deposition on January 12, 2026. (Dee Decl., ¶¶ 11-12, Ex. 3, ROA 247.) Respondent was personally served with the Subpoena on December 20, 2025. (See Ibid.) Respondent filed no formal objections to the Subpoena and filed no proper motion to quash prior to the date initially set for the deposition. Moreover, on May 28, 2026, the court granted Petitioner’s petition to enforce the Subpoena and ordered Respondent to appear for deposition on Monday, June 15, 2026, and produce all responsive documents. (ROA 67.) Respondent did not file the instant motion until seven months after being served with the Subpoena, six months after the initial deposition date, and more than six weeks after the court granted the petition in this action.

In his supplemental memorandum filed August 11, 2026, Respondent argues the motion is timely based on his earlier failed attempts to file a motion to quash. The court’s records show on January 12, 2026, Respondent attempted to file a motion to quash in case number 30-2025- 01528524 – the case in which the clerk of the court issued the Subpoena – but the filing was rejected because the documents were not in proper legal format. Respondent never attempted to re-file the motion. (See ROA 13, Case No. 30-2025-01528524.)

Furthermore, Respondent did not file any opposition to the petition to enforce the Subpoena in the instant action and did not appear at the May 28, 2026 hearing on the petition. As the record demonstrates, Respondent contacted courtroom staff a few minutes before the hearing to state his counsel was unavailable to appear, however, no basis for his counsel’s inability to appear was provided and no message was received from counsel or his office. Also, no request for any action by the court was made. (See Minute Order at ROA 67.)

The court therefore proceeded with the hearing.

Respondent also contends the Shield Law is a “nonwaivable protection” that may be asserted against compelled disclosure at any time. As Petitioner points out, Respondent cites no authority supporting this proposition. Respondent also cites no authority showing an assertion of

the Shield Law immunity suffices to cure an otherwise untimely motion to quash.

Under these circumstances, Respondent failed to show his motion under Code of Civil Procedure section 1987.1 is “reasonably made.”

To the extent Respondent alternatively seeks an order vacating or modifying the court’s June 1, 2026 order granting the petition to enforce the deposition subpoena, no separate authority is cited for this request. To the extent Respondent relies on Code of Civil Procedure section 1987.1, the request is denied for the same reasons discussed above. To the extent the motion can be considered a motion for reconsideration, as Petitioner asserts, such motion is untimely because it is not made within 10 days after service of written notice of the order, and Respondent has not otherwise satisfied the requirements for reconsideration. (See Code Civ. Proc., §1008, subd. (a).) Notice of entry of the subject order was served on Respondent on June 1, 2026. (ROA 80.) This motion was not filed until July 14, 2026.

Moreover, as the court noted in its May 29, 2026 order granting Petitioner’s request for sanctions, the Shield Law protects news media against punishment for contempt, but it does not create a privilege against testifying. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 797, fn. 6; Bakersfield Californian v. Superior Court (2023) 96 Cal.App.5th 1228, 1249.) “Because the shield law provides only an immunity from contempt, there is nothing from which to seek relief until a newsperson has been adjudged in contempt.” (New York Times Co. v. Superior Court (1990) 51 Cal.3d 453, 459, emphasis in original.) Similarly, Respondent has not shown the qualified constitutional privilege for news media applies and provides a wholesale excuse from appearing for deposition.

Based on the foregoing, the motion is DENIED in its entirety.

In accordance with the court’s prior order enforcing the deposition subpoena (as well as Respondent’s representation in his supplemental filings), Respondent is ordered to appear for his deposition within 20 days of service of notice of this order. Any disputes regarding the content of any specific questions and the answers or objections thereto can be presented to the court upon noticed motion after good faith meet and confer efforts.

Sanctions: Given the significant procedural deficiencies with this motion and the fact this court previously has ordered Respondent to appear for deposition pursuant to the deposition subpoena, the court finds this motion was made without substantial justification. An award of reasonable expenses to Petitioner is thus appropriate. (Code Civ. Proc., § 1987.2(a).) The amount requested by Petitioner is excessive, however, based on the number of hours requested and attorneys for which time is sought. The court will allow 10 hours for associates and 4 hours for partners. This results in total fees of $5,200 (10 hours x $300 + 4 hours x $550).

Respondent is ordered to pay $5,200 in monetary sanctions to Petitioner, through its counsel, within 45 days of service of this order.

Requests for Judicial Notice: Respondent’s request for judicial notice at ROA 146, Items 1 and 2, and requests for judicial notice at ROA 196 and 217, Exhibits C through E, are GRANTED as to the existence of and legal effects of the records, but not as to the truth of any disputed facts asserted therein. (Evid. Code, § 452, subd. (d); Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

Respondent’s request for judicial notice at ROA 146, Items 3 through 8, and requests for judicial notice at ROA 196 and 217, Exhibits A and B, are DENIED. (Center for Community Action & Environmental Justice v. City of Moreno Valley (2018) 26 Cal.App.5th 689, 695, fn. 4 [declining to take judicial notice of records not necessary for court’s analysis].)

Objections: Petitioner’s evidentiary objections are OVERRULED.

Motion No. 2: Motion to Vacate (ROA 151)

Respondent moves for an order vacating the court’s May 29, 2026 order directing Respondent to pay $6,900 in monetary sanctions to Petitioner.

Respondent moves to vacate the sanctions order on two grounds. First, Respondent contends the sanctions order is void because it was made and entered during the automatic stay of discovery proceedings imposed by Code of Civil Procedure section 425.16(g), which Respondent contends attached when he filed his Special Motion to Strike on May 29, 2026. This argument fails as the court already determined, when it denied Respondent’s special motion to

strike on August 6, 2026, because the anti-SLAPP statute does not apply to the instant proceeding which concerns a petition to enforce a deposition subpoena and not a traditional cause of action. (See Minute Order at ROA 185.) Moreover, Respondent did not properly file the anti-SLAPP motion until after the court had ruled on the petition. (Ibid.) Thus, no discovery stay could have attached. Petitioner raised these arguments in its opposition to the instant motion. Respondent filed no reply and thus failed to make any showing that the discovery stay under the anti- SLAPP statute could apply in this instance.

Second, Respondent contends the court should grant discretionary relief under Code of Civil Procedure section 473, subdivision (b). Respondent asserts the sanctions order was entered because Respondent filed no opposition to the petition and made no objection at the May 28, 2026 hearing on the petition. Respondent contends this failure was caused by the inability of Respondent’s counsel to appear that morning due to a personal emergency. Respondent contends this is excusable neglect warranting relief under section 473, subdivision (b).

Initially, Respondent’s underlying premise must be refuted. The court did not grant the petition/motion to enforce the subpoena because Respondent filed not opposition. The court granted the petition/motion because, as explained above, the California Shield Law and the First Amendment reporter’s privilege do not excuse Respondent from his obligation to appear for the deposition. They may potentially provide a basis to object to or refuse to any certain questions, but they do not provide a wholesale excuse from the obligation to appear.

The court further imposed sanctions because Respondent failed to establish a substantial justification for his actions. Granted, the failure to file any opposition or appear at the hearing prevented Respondent from meeting that burden, but there was no substantial justification regardless because, as stated, the privileges asserted did not excuse the failure to appear. So, to be clear, the court did not sanction Respondent simply because he did not file an opposition or appear at the hearing.

Nonetheless, Code of Civil Procedure section 473, subdivision (b) provides, in relevant part: “The court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party’s mistake, inadvertence, surprise, or excusable

neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)

“Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.)

Counsel’s failure to discharge routine professional duties is not excusable. “Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.” (Generale Bank Nederland, N.V. v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1400; Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1112 [“The failure to introduce readily available, compelling evidence which supports the client’s position . . . is not a mistake that a reasonably prudent person in the same circumstances might have made but rather conduct falling below the professional standard of care.”].)

“In order to qualify for relief under section 473, the moving party must act diligently in seeking relief.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234 (superseded by statute on other grounds).)

Here, Respondent failed to show the motion was made within a reasonable time after the May 29, 2026 order was taken and failed to show excusable neglect. As to the timeliness of the motion, the sanctions order was served by email on Respondent’s counsel on May 29, 2026. (ROA 69.) This motion was not filed until approximately six and a half weeks later. Respondent provides no explanation for this delay. The court finds the motion not made within a reasonable time after the order was taken. (See Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1145 [unexplained delay of 7 weeks rendered motion untimely].)

As to excusable neglect, Respondent’s counsel, Mr. Lockyer, states he was unable to appear at the May 28, 2026 hearing because of a sudden personal and family emergency that arose that morning. (See Lockyer Decl., ¶ 4.) Although Mr. Lockyer’s declaration may sufficiently explain Respondent’s failure to appear at the May 28, 2026 hearing, it does not explain why Respondent did not file a

written opposition to the petition prior to the May 28, 2026 hearing. The opposition was due on May 14, 2026. (Code Civ. Proc., § 1005, subd. (b).) Mr. Lockyer does not explain why the opposition was not timely filed on this date.

Mr. Lockyer admits a substantive opposition had been prepared and was substantially complete on May 23, 2026, five days before the hearing. (Lockyer Decl., ¶ 10.) For some unexplained reason, however, that opposition was not filed with the court prior to the hearing. Mr. Lockyer does not explain how a personal emergency occurring on the morning of the hearing prevented him from filing the opposition which was in final form days before the hearing. “The failure to introduce readily available, compelling evidence which supports the client’s position . . . is not a mistake that a reasonably prudent person in the same circumstances might have made but rather conduct falling below the professional standard of care.” (Toho-Towa Co., Ltd. v.

Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1112.) Respondent thus has not shown his failure to present a written opposition to the petition, and the resulting entry of the sanctions order, was due to any excusable neglect on the part of Respondent or his counsel.

Accordingly, this motion also is DENIED.

Petitioner’s counsel is ordered to give notice of these rulings.

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