Judge: Anne Hwang, Case: 21STCV31918, Date: 2024-01-19 Tentative Ruling

Case Number: 21STCV31918    Hearing Date: January 23, 2024    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 January 31, 2022, Defendants Randy George Cudworth, Del Amo Construction, Inc., and Enterprise FM Trust LSR (“Defendants”) served a deposition subpoena for production of business records, on non-party International Orthopedic Center (“IOC”), seeking medical records for Plaintiff Ramon Mayoral (“Plaintiff”).  

On September 5, 2023, Defendants moved to compel compliance with the subpoena under Code of Civil Procedure section 1987.1. Defendants also seek 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.) 

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

            Defendants’ counsel merely states that “Defendants met and conferred” following the production date. (Fodrini Decl. ¶ 3.) However, this is insufficient to show that a good faith meet and confer took place.

DISCUSSION

On January 31, 2022, Defendants served the deposition subpoena on IOC. (Fodrini Decl. ¶ 2, Exh. A, B.) The date of production was March 1, 2022. Sixty days after the date for production was April 30, 2022. Therefore, since Defendants filed the instant motion on September 5, 2023, the motion is untimely.

Defendants argue the motion is timely because IOC never objected to the subpoena, and therefore the record was never completed. However, IOC’s non-compliance was clear on March 1, 2022, when the records were not produced. “A nonparty must comply (or not) with the subpoena on the date specified for production. If a party is not satisfied with the nonparty's compliance, the party has 60 days in which to meet and confer with the nonparty. These meet and confer efforts do not affect the mandatory 60-day deadline. The meet and confer process is part of the 60-day period in which to file a motion; it does not extend it. If the party is still unsatisfied with the nonparty's compliance with any portion of the subpoena at the end of this period (because, for example, the nonparty still has not produced the requested documents), the party may file a motion to compel.” (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1034–35.) Therefore, the 60-day deadline started on March 1, 2022. (See id. at 1033 [“On [the date specified for production], the subpoenaing party has all of the information it needs to meet and confer regarding the nonparty's compliance and, if unsatisfied, prepare a motion to compel.”.)

As a result, the motion to compel, and request for monetary sanctions is denied.

CONCLUSION AND ORDER

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

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