Judge: Anne Hwang, Case: 20STCV13665, Date: 2023-12-18 Tentative Ruling

Case Number: 20STCV13665    Hearing Date: December 18, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On April 8, 2020, Plaintiff Dieudonne Ngnie (Plaintiff) filed a complaint against Defendant Los Angeles County Metropolitan Transportation Authority (Defendant) for damages resulting from an alleged motor vehicle accident. Defendant asserts that Plaintiff has worked as an Uber driver since 2017 and is claiming past and future lost income. (Lake Decl. ¶ 3, Exh. B.) Plaintiff claims his average monthly income from Uber was $4,500. On May 8, 2023, Defendant personally served a deposition subpoena on Uber’s registered agent for service of process, setting the deposition for May 22, 2023. (Id. ¶ 5, Exh. D.) Defendant received no objection and on the date of the deposition, Uber’s person most qualified did not appear. (Id. ¶ 7.)

On June 20, 2023, Defendant filed this motion to compel compliance with the subpoena. No opposition has been filed.

LEGAL STANDARD

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.¿ (Code Civ. Proc., § 2020.010.)¿ A deposition subpoena may command either: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.¿ (Code Civ. Proc., § 2020.020.)¿  

A service of a deposition subpoena shall be affected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.¿ (Code Civ. Proc., § 2020.220, subd. (a).)¿ Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.¿ (Code Civ. Proc., § 2020.220, subd. (c).)¿ A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.¿ (Code Civ. Proc., § 2020.240.)¿A motion to compel compliance with a deposition subpoena must be made within 60 days after completion of the deposition record, the date objections are served, or the date specified for production, and be accompanied by a meet and confer declaration. (Code Civ. Proc., §2025.480, subd., (b); Board of Registered Nursing v. Sup.Ct. (Johnson & Johnson) (2021) 59 CA5th 1011, 1032-1033.) 

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” 

California Code of Civil Procedure section 1987.2, subdivision (a) states, in relevant part, “. . . 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 . . . .” 

JUDICIAL NOTICE

The Court declines to rule on Defendant’s request for judicial notice because it does not affect the ruling herein.

MEET AND CONFER

            Defendant does not describe a meet and confer effort with Uber prior to bringing this motion. Therefore, the meet and confer requirement was not met. (Code Civ. Proc., §2025.480, subd., (b).)

DISCUSSION

As an initial matter, this motion is timely because it was filed on June 20, 2023, within 60 days after the completion of the deposition record on May 22, 2023.

Defendant shows proof that the deposition subpoena was personally served on Uber’s registered agent for service of process and that Uber’s person most qualified failed to appear at the scheduled deposition or produce the documents specified in the subpoena.

However, the Court notes that Defendant’s proof of service does not indicate that Uber was served notice of this motion. California Rules of Court, rule 3.1346 states:

“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.”

Therefore, because Uber was not served notice of this motion, the motion is denied without prejudice.

CONCLUSION AND ORDER

Therefore, the Court DENIES the motion to compel compliance with the deposition subpoena.

            Defendant shall give notice of the Court’s order and file a proof of service of such.