Judge: Andrew E. Cooper, Case: 20CHCV00844, Date: 2023-05-24 Tentative Ruling

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Case Number: 20CHCV00844    Hearing Date: February 16, 2024    Dept: F51

Dept. F-51 

Date: 2/16/24                                                                                             JURY TRIAL: 2/26/24

Case #20CHCV00844

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION TO QUASH DEPOSITION SUBPOENA

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Motion Filed: 1/26/24

MOVING PARTY: Defendant Valley Oaks Village Center, a limited liability company (“Defendant”)

RESPONDING PARTY: Plaintiffs Gemma Boykin, an individual; and Julian Boykin, an individual (collectively, “Plaintiffs”)

NOTICE: OK

RELIEF REQUESTED: An order quashing Plaintiffs’ 1/10/24 deposition subpoena for production of business records, propounded and served on non-party deponent Arshud Mahmood, Ph.D., P.E. Defendant also seeks monetary sanctions against Plaintiffs and/or their counsel in the amount of $2,310.00.

TENTATIVE RULING: The motion is granted. The Court imposes sanctions against Plaintiffs’ counsel in the amount of $510.00.

BACKGROUND

On 1/10/24, Plaintiffs served a deposition subpoena for business records on non-party deponent and expert witness Arshud Mahmood, Ph.D., P.E. (“Dr. Mahmood”), seeking the production of Dr. Mahmood’s “entire file as to this property located at 23311 Happy Valley Drive, Newhall, CA 91321, including, without limitation: (a) any and all reports/notes to, from, or by Dr. Mahmood, whether or not submitted to Harrington Foxx Dubrow & Canter LLP after inspection of the subject property; and (b) any and all communications, including without limitations emails to or from Dr. Mahmood regarding the property located at 23311 Happy Valley Drive, Newhall, CA 91321.” (Ex. A to Def.’s Mot.)

On 1/26/24, Defendant filed the instant motion to quash the deposition subpoena. On 2/6/24, Plaintiffs filed their opposition. No reply has been filed to date.

ANALYSIS

A party may move to quash a deposition subpoena to strike, modify, or direct “compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc. § 1987.1, subd. (a).) Here, Defendant moves to quash Plaintiffs’ 1/10/24 deposition subpoena to Dr. Mahmood on the bases that the subpoena was untimely and defectively served.

A.    Timeliness

A party may depose a designated expert witness as late as the 15th day before the date initially set for the trial, and motions concerning such a deposition may be heard up to the 10th day before that trial date. (Code Civ Proc. § 2024.030.) Here, the parties stipulated that the expert discovery cut-off date would be based on the previous 11/28/22 trial date. (6/13/22 Ex Parte App. 3:2–6.)

Here, Defendant observes that “Plaintiffs issued the subpoena to Dr. Mahmood after the cut-off date had passed and expert discovery had closed. Plaintiffs’ counsel admitted as much in their response to the meet and confer letter.” (Def.’s Mot. 5:19–21.) Plaintiffs argue in opposition that the subject subpoena was warranted because Defendant initially listed Dr. Mahmood’s written report as a trial exhibit, but later, after the discovery cut-off date, represented to Plaintiffs that no such report was created. Plaintiffs argue that therefore, “this ‘sandbagging’ warrants discovery by Plaintiffs of Dr. Mahmood’s case file, including any notes and emails, because the circumstances strongly suggest that his report would have favored Plaintiffs – and that Defendants’ counsel ‘arranged’ for him not to prepare the report for that reason.” (Pls.’ Opp. 4:2–5.)

The Court declines to draw such a conclusion, and notes that Plaintiffs concede in their opposition that the subpoena to Dr. Mahmood was untimely served. (Id. at 2:3–4.) Furthermore, Plaintiffs do not cite to any legal authority allowing for the reopening of expert discovery under such circumstances. As Defendant observes, “exhibit lists merely represent proposed exhibits that a party intends to offer” and may be modified. (Def.’s Mot. 6:4–5, citing LASC Local Rule No. 3.25(f)(1) [“If trial does not commence within 30 days of the set trial date, a party has the right to request a modification of any final status conference order or any previously submitted required exchange list.”].)

Based on the foregoing, the Court finds that the 1/10/24 deposition subpoena was served after the expert discovery cut-off date, and is therefore untimely. Accordingly, Defendant’s motion to quash the deposition subpoena on this ground is granted.

B.     Service

Deposition subpoenas to nonparty deponents must be served via personal service, not by mail. (Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8E-6, citing Code Civ. Proc. § 2020.220, subds. (b)–(c).) Here, the proof of service attached to the subject deposition subpoena states that the subpoena was mailed to Dr. Mahmood on 1/10/24. (Ex. A to Def.’s Mot.) Defendant therefore argues that “the statutes demand personal service and no personal service was given. Accordingly, the subpoena should be quashed for improper service.” (Def.’s Mot. 5:6–7.)

Plaintiffs argue in opposition that “Dr. Mahmood himself invited, nay instructed, that the Subpoena at issue could and should be served on him by mail.” (Pls.’ Opp. 3:15–16.) The Court notes that beyond this representation made in their opposition, Plaintiffs provide no further evidence showing that Dr. Mahmood requested that the subject subpoena be mailed to him. Even if such evidence were presented, Plaintiffs cite to no legal authority making an exception to the method of service required by Code of Civil Procedure section 2020.220 under such circumstances.

Based on the foregoing, the Court finds that the 1/10/24 deposition subpoena was improperly served by mail. Accordingly, Defendant’s motion to quash the deposition subpoena on this ground is granted.

C.    Sanctions

“In making an order pursuant to motion made under … Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc. § 1987.2, subd. (a).) Additionally, “the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc. § 2023.030, subd. (a).)

Here, Defendant requests $2,310.00 in monetary sanctions against Plaintiffs and/or their counsel, which encompasses: (1) 7 hours of Defendant’s attorney’s time spent meeting and conferring, and preparing this motion; and (2) an anticipated 3 hours reviewing Plaintiffs’ opposition, drafting a reply, and attending the instant hearing, at his hourly billing rate of $225.00 per hour. (Decl. of Adam Byrne ¶ 5.) Defendant also seeks to recover $60.00 in filing fees relating to the instant motion. (Ibid.) In granting the instant motion, the Court finds it reasonable to award Defendant monetary sanctions in the amount of $510.00 against Plaintiffs’ counsel.

CONCLUSION

The motion is granted. The Court imposes sanctions against Plaintiffs’ counsel in the amount of $510.00.