Judge: Andre De La Cruz, Case: 2020-01139897, Date: 2023-08-21 Tentative Ruling

Order to Show Cause filed by David Elias on 4/26/23

Plaintiff, David Elias, (“Plaintiff”) is in pro per, and moves for an order compelling non-party, Franchise Tax Board (“FTB”), to comply with a Subpoena Duces Tecum, pursuant to Code of Civil Procedure section 1987.1.

Initially, Plaintiff purports to bring an “Order to Show Cause” to enforce compliance with a subpoena without providing any authority which permits him to do so. Nevertheless, the Court treats the instant “Order to Show Cause” as a motion to compel compliance with a subpoena.

There is also no notice of motion; however, the memorandum makes clear that Plaintiff is seeking an order to have the FTB comply with a subpoena.

Despite the foregoing, it does not appear that Plaintiff has properly served the instant motion to compel compliance on the FTB. “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.

Here, the proof of service attached to the Motion indicates that the FTB was served by mail, not by personal service, and there is no showing that the FTB agreed to accept service by mail. The Court notes no opposition has been filed.

Additionally, it does not appear that Plaintiff has served all parties that have appeared in this case. “After appearance, a defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Where a defendant has not appeared, service of notice or papers need not be made upon the defendant.” Code Civ. Proc., § 1014. Although Defendants, W. Rod Stern; Murtaugh Treglia Stern & Deily, LLP; Naji Khatib and the State Bar of California; Krishna Gulaya; Thomas M. McIntosh and Theodore McIntosh; and Brian Sardina have appeared and must be served with the instant motion, the proof of service does not indicate mail service on Defendants Murtaugh Treglia Stern & Deily, LLP, Naji Khatib and the State Bar of California, and Brian Sardina

Based on the foregoing, the motion is DENIED without prejudice.

Court orders Clerk to give notice.