Judge: Anne Hwang, Case: 21STCV04465, Date: 2023-10-30 Tentative Ruling

Case Number: 21STCV04465    Hearing Date: October 30, 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 February 4, 2021, Plaintiff Aris Mirzakhanian (Plaintiff) filed a complaint against Alex Aksert (Defendant) and Does 1 to 50 for negligence related to an alleged motor vehicle accident.

According to Defendant, after the motor vehicle accident, Plaintiff rented a 2015 Ferrari from Norwalk Transport, Inc. (Norwalk Transport) (Castronovo Decl. ¶ 2.) As a result, Plaintiff is claiming $46,500 in out-of-pocket rental expenses due to the accident. (Id.) On June 1, 2023, Defendant personally served Norwalk Transport with a subpoena to produce a person most knowledgeable for deposition and to produce documents specified on attachment “3” of the subpoena. (Id. ¶ 10, Exh. E, F, G.)

On August 9, 2023, Defendant moved to compel compliance with the subpoena under Code of Civil Procedure section 1987.1. Defendant also seeks monetary sanctions. 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.) 

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.) 

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 . . . .” 

MEET AND CONFER

            Defendant states that he sent a letter to Labejian, Norwalk Transport’s person most knowledgeable about setting a new date for the deposition. (Castronovo Decl. ¶ 16, Exh. K.) However, no response was received. Therefore, it appears Defendant has attempted to reasonably resolve the issue.

DISCUSSION

As an initial matter, this motion is timely since the date of production on the subpoena was June 26, 2023, and this motion was filed on August 9, 2023. Therefore, the motion was filed within the 60-day timeframe. However, the proof of service reflects that only counsel for Plaintiff has been served with the motion. Because Defendant does not appear to have served Norwalk Transport with the motion, the motion is procedurally defective. Accordingly, the Court denies the motion.

CONCLUSION AND ORDER

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

Defendant is ordered to give notice and file a proof of service of such.