Judge: Anne Hwang, Case: 21STCV29844, Date: 2023-11-01 Tentative Ruling

Case Number: 21STCV29844    Hearing Date: November 1, 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 August 12, 2023, Plaintiff Narine Karapetyan (Plaintiff) filed a complaint against Defendant Cheesecake Factory (Defendant) and Does 1 to 50 for negligence and premises liability related to a slip and fall.  

Defendant argues that Plaintiff testified that her daughters Maneh and Tina, witnessed her physical limitations after the incident and had to assist with daily household activities. (Clancey Decl., Exh. C, Pl. Depo. 18:10–24.) Defendant seeks to depose Maneh and Tina, arguing that they are percipient witnesses to the damages Plaintiff alleges.

On August 23, 2023, Defendant served a Deposition Notice for Maneh and a Deposition Notice for Tina, set for September 15, 2023. (Clancey Decl., Exh. D.) On September 8, 2023, Plaintiff stated the depositions would not occur because Maneh and Tina are minors. (Clancey Decl., Exh. F.) Maneh and Tina did not appear for deposition and now Defendant moves to compel. The motion to compel Tina’s deposition is set for hearing on November 2, 2023. The Court advances and vacates that hearing to today’s date unless either party objects at the hearing.

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 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 . . . .” 

DISCUSSION

Defendant argues that Plaintiff testified that her daughters, Maneh and Tina, were witnesses to Plaintiff’s physical limitations following the incident, and therefore they should be compelled to sit for deposition. Plaintiff argues that Plaintiff has already produced medical records and has retained an expert, so the depositions that Defendant seeks will not lead to the discovery of new evidence. The Court finds that the testimony of Plaintiff’s daughters is relevant because they can describe the actual limitations Plaintiff presented on a day-to-day basis after the incident. Such testimony is different from medical records based on providers’ impressions during a medical visit. Plaintiff’s daughters are ages 14 and 17; Plaintiff does not argue that they are not competent to testify.

However, in its moving papers, Defendant cites to Code of Civil Procedure section 2025.450(a) which governs depositions of party witnesses. Here, Plaintiff’s daughters are not listed as a party on the complaint. Therefore, in order to seek a deposition of a non-party witness, Defendant must serve a deposition subpoena under Code of Civil Procedure section 2020.010 et seq. Here, because Defendant only served a notice of deposition, and not a subpoena, the motions to compel are denied as procedurally defective. (See Clancey Decl., Exh. D.)

Because the motions are denied, the Court declines to award sanctions.

CONCLUSION AND ORDER

Therefore, the Court DENIES the motions to compel depositions of Manel Frangulyan and Tina Frangulyan. The hearing on the motion to compel deposition of Tina Frangulyan set for November 2, 2023, is advanced to today’s date and vacated.

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