Judge: Alison Mackenzie, Case: 22STCV28437, Date: 2024-07-18 Tentative Ruling

Case Number: 22STCV28437    Hearing Date: July 18, 2024    Dept: 55

NATURE OF PROCEEDINGS: Hearing on Motion to Compel MOTION TO COMPEL ATTENDANCE OF DR. RYAN GREENE AND PRODUCTION OF DOCUMENTS AT HIS DEPOSITION, AND FOR SANCTIONS

BACKGROUND

Plaintiff NJRY Inc. sued defendants Flow Health Laboratories, LLC, Signal Diagnostics, LLC, and Flow Health Holdings, LLC for (1) breach of contract, (2) conversion, (3) a common count, (4) intentional misrepresentation, (5) negligent misrepresentation, (6) embezzlement, and (7) unjust enrichment, constructive trust, and restitution.

On November 22, 2022, the parties stipulated to submit their dispute to binding arbitration and stay this action in the interim.

On April 9, 2024, Defendants filed the instant motion to compel a third-party deponent, Dr. Ryan Greene, to sit for a deposition and produce documents.

Plaintiff opposes the motion.

LEGAL STANDARD

A motion lies to compel a non-party witness to obey a deposition subpoena, and contempt is available where the non-party consciously refused to attend the deposition, and had knowledge of the subpoena, and an ability to comply. (Code Civ. Proc., § 1987.1; Person v. Farmers Insurance Group of Cos. (1997) 52 Cal.App.4th 813, 818; Chapman v. Superior Court (1968) 261 Cal.App.2d 194, 200; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶¶8:609.1 and 8:611.)

DISCUSSION

            Service

Defendants did not effect proper service of their motion.

“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court, rule 3.1346.)

Defendants’ proof of service indicates they served the deponent with notice of the instant motion by U.S. Mail only. This does not satisfy the Rules of Court.

Defendants argue Code of Civil Procedure section 2025.480 permits them to serve Dr. Greene by mail as long as he was personally served with the underlying subpoena. Not so. Defendants refer to section 2025.480(c), which permits “service in writing” of a motion to compel subsequent to the completion of a deposition record. “Service in writing” is not the same as “service by mail.” Rule 3.1346 clarifies that the “service in writing” must be effected personally on a third-party deponent.

The motion is denied for failure to properly serve the deponent with the moving papers.

            Remaining Issues

The remaining issues argued by the parties are moot. For clarification only, the Court makes the following observations:

First, that the Court is not empowered to review the underlying merits of arbitrators’ decisions on discovery matters. (Code Civ. Proc., § 1281.4; Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P. (2008) 44 Cal.4th 528, 536 [an arbitrator’s discovery order is ‘ “as conclusive, final and enforceable as an arbitration award on the merits’ ”]).

Second, if the parties return to the Court after proper notice to the deponent, they should be prepared to reconcile Aixtron, Inc. v. Veeco Instruments, Inc. (2020) 52 Cal.App.5th 360 and McConnell v. Advantest America, Inc. (2023) 92 Cal.App.5th 596 with the facts of this dispute.

CONCLUSION

The motion is denied without prejudice.