Judge: Andrew E. Cooper, Case: 23CHCV01564, Date: 2023-11-01 Tentative Ruling

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Case Number: 23CHCV01564    Hearing Date: November 1, 2023    Dept: F51

MOTION TO COMPEL DEPOSITION

Motion filed: 8/21/23

MOVING PARTY: Plaintiff Michael Soriano, in pro per (“Plaintiff”) 

RESPONDING PARTY: Specially Appearing Non-party Deponent M&Y Personal Injury Lawyers (“M&Y”)

NOTICE: ok 

RELIEF REQUESTED: An order (1) compelling Steve Yamin and M&Y to appear to produced documents responsive to Plaintiff’s document subpoena served on 7/11/23; and (2) monetary sanctions against Yamin and M&Y in the amount of $1160.56.

TENTATIVE RULING: The motion is granted in part. Nonparty deponent M&Y Personal Injury Lawyers is ordered to produce any additional documents and/or communications in connection with Plaintiff’s claims in the instant action, by delivering a true, legible, and durable copy of the business records described in the 7/10/23 Deposition Subpoena for Production of Business Records, to Plaintiff’s address of record, by the method described in Paragraph 1a. of the subpoena. Plaintiff’s request for sanctions is denied.

BACKGROUND

This is a personal injury action in which Plaintiff alleges that on 6/24/21, defendant Mira Gavrieli caused a collision of the automobiles driven by either party. (Compl. p. 5.) Defendant Kfir Gavrieli allegedly entrusted the vehicle to Mira Gavrieli. (Ibid.) M&Y is a law firm that formerly represented Plaintiff in this matter. (Pl.’s Mot. 2:7–8.)

On 5/31/23, Plaintiff filed his complaint, alleging against Defendants the following causes of action: (1) Motor Vehicle Negligence; and (2) General Negligence. On 7/21/23, Defendants filed their answer.

On 7/10/23, the Court issued Deposition Subpoena for Production of Business Records to Steve Yamin and M&Y, seeking the production of “all case files and all emails, recordings, facsimiles, or other communications or records of communications between yourself and/or your firm and its agents, and the other parties in the above titled case and claim #21-4496252” for inspection at its offices on 8/8/23. (7/11/23 Subpoena & Proof of Service.) On 7/11/23, Plaintiff served Yamin and M&Y with the deposition subpoena. (Ibid.) On 8/8/23, when Plaintiff arrived at M&Y to inspect the documents, he was informed that he was not allowed access to the law firm’s offices. (Pl.’s Mot. 3:3–15.)

On 8/21/23, Plaintiff filed the instant motion to compel. On 10/19/23, M&Y filed and served its opposition. On 10/23/23, Plaintiff filed his reply.

ANALYSIS

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc. § 2025.480, subd. (a).)

1.      Meet and Confer

A motion to compel a document production in response to a document subpoena must (1) “be accompanied by a meet and confer declaration under Section 2016.040. (Id. at subd. (b).) Here, Plaintiff states that on 7/31/23 and 8/9/23, he contacted M&Y via emails to Yamin and Nick Movagar in attempts to meet and confer regarding the issues raised in the instant motion but received no response. (Pl’s Mot. 5:24–26, 6:11–12.) Accordingly, the Court finds that Plaintiff has satisfied the meet-and-confer requirement under Code of Civil Procedure section 2025.480, subdivision (b).)

2.      Procedural Issues

a.      Separate Statement

M&Y argues that Plaintiff’s motion should be denied because he has failed to include a separate statement as required by California Rules of Court, rule 3.1345. (Opp. 6:3–10.) Plaintiff argues in reply that the rule clearly states that “A separate statement is not required … When no response has been provided to the request for discovery.” (Cal. Rules of Ct., rule 3.1345(b)(1).) Here, Plaintiff argues that because M&Y provided no response to the document subpoena and did not respond to his meet and confer efforts, he is not required to attach a separate statement to the instant motion. (Pl.’s Reply 7:11–25.) The Court agrees and finds that Plaintiff was not required to attach a separate statement to the instant motion.

b.      Service of Opposition

Plaintiff argues that M&Y’s opposition was improperly served on him via electronic service, where he has not consented to this method for service of documents, and therefore the Court should disregard the opposition in full. (Id. at 4:8–9; Code Civ. Proc. § 1010.6, subd. (c).) However, the Court notes that “the law respects form less than substance.” (Civ. Code § 3528.) Additionally, the public policy of California favors adjudicating cases on the merits (Elston v. City of Turlock¿(1985) 38 Cal.3d 227, 235; Hernandez v. Superior Court¿(2004) 115 Cal.App.4th 1242, 1246.)

Here, while M&Y may have improperly served its opposition papers on Plaintiff via electronic service, Plaintiff has not alleged any prejudice resulting from such method of service, particularly where Plaintiff has had an opportunity to provide a lengthy reply to the opposition.¿Accordingly, the Court declines to reject M&Y’s opposition for this procedural deficiency.

3.      Service of Document Subpoena

M&Y further contends that “Plaintiff failed to properly serve the subpoena. By Plaintiff’s own admission, he never served M&Y at its office. Nor did he serve any of M&Y’s attorneys, officers, directors, or agents. Rather, the subpoena was left downstairs in the lobby of a twenty-one story building M&Y occupies with hundreds of other tenants. The individual that allegedly accepted this subpoena, ‘Gabby Pelascio’, is a former employee of M&Y, and was never a legal assistant to Steve Yamin, nor was she ever authorized to accept service of a subpoena. (Opp. 5:15–20, citing Reeves Decl., ¶ 8)

Plaintiff argues in reply that “regardless of the opposing party’s assertion of the person assigned to receive the subpoena and subsequent motion, Ms. Pelacios was a valid recipient via the consent of Steve Yamin and Nick Movagar, both whom are officers of the law firm in their capacity as law partners. These individuals authorized Ms. Pelacios to accept the subpoena upon their behalf in lieu of personally appearing before the individual making the personal service.” (Pl.’s Reply 6:14–18.)

As Plaintiff observes, to the extent M&Y challenges the service of the document subpoena as improper, it could have filed a motion to quash, but failed to do so. (Id. at 6:26–7:5.) As such, the Court declines to make any findings pertaining to the service of the original deposition subpoena for business records served on M&Y on 7/11/23 as they are not properly raised before this Court at this time.

4.      Client File

By way of the subject document subpoena, Plaintiff seeks to recover his client file from M&Y. “The documents, notes, and communications produced by the opposing party are known to contain information that is necessary for the litigation of the movements [sic] case.” (Pl.’s Mot. 6:18–19.)

In opposition, M&Y argues that the instant motion should be denied on substantive grounds, as “the Motion seeks documents that were previously produced to Plaintiff on April 3, 2023, and re-produced a second time on September 22, 2023.” (Opp. 6:15–17.) “In the hypothetical event this Motion were granted (which it shouldn’t), all M&Y would and could do would be to produce the same documents a third time which would be unnecessary, cumulative, and beyond duplicative in clear violation of Code of Civil Procedure Section 2019.030(a)(1).” (Id. at 6:24–27.)

In reply, Plaintiff asserts that “the exhibits directed to in ‘DECLARATION OF DANIEL J. REEVES, ¶ 9’, is just a sampling of the E-mails and communications that were never provided as part of the case file, which forms the basis of the Subpoena. These were never included in the document repository that was provided in April 2023.” (Pl.’s Reply 8:27–9:2.)

Based on the foregoing, the Court orders M&Y to comply with the 7/11/23 document subpoena to the extent that any additional documents and communications, such as those identified by Plaintiff above, have not yet been produced to Plaintiff. However, this Court finds that M&Y is to provide these documents not by making them available for inspection and copying by Plaintiff himself, but by mail delivery to Plaintiff as outlined in Paragraph 1a. in the original subpoena.

5.      Sanctions

If the Court grants a motion to compel the production of documents responsive to a deposition subpoena, it “shall impose a monetary sanction …  against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2025.480, subd. (j).) “A person failing to appear pursuant to a subpoena or a court order also forfeits to the party aggrieved the sum of five hundred dollars ($500), and all damages that he or she may sustain by the failure of the person to appear pursuant to the subpoena or court order, which forfeiture and damages may be recovered in a civil action.” (Code Civ. Proc. § 1992.)

Here, Plaintiff requests $1160.56 in monetary sanctions to be imposed against Yamin and M&Y, which encompasses the following: (1) $70.00 in process server fees; (2) $60.00 in court costs for filing the instant motion; (3) $530.56 in travel, parking, and time expenses; and (4) $500.00 forfeiture under Code of Civil Procedure section 1992. (Att. D to Pl.’s Mot., ¶ 2.)

The Court notes that Code of Civil Procedure section 1992 provides for a separate civil remedy for a deponent’s failure to appear for deposition, therefore Plaintiff is not entitled to such a forfeiture as a monetary sanction in connection with the instant motion. Moreover, based on the arguments and supporting declarations set forth by Plaintiff and M&Y, the Court finds that the imposition of sanctions against M&Y would be unjust. Accordingly, the Court denies Plaintiff’s request for sanctions.

CONCLUSION

The motion is granted in part. Nonparty deponent M&Y Personal Injury Lawyers is ordered to produce any additional documents and/or communications in connection with Plaintiff’s claims in the instant action, by delivering a true, legible, and durable copy of the business records described in the 7/10/23 Deposition Subpoena for Production of Business Records, to Plaintiff’s address of record, by the method described in Paragraph 1a. of the subpoena. Plaintiff’s request for sanctions is denied.