Judge: Anne Hwang, Case: 23STCV11758, Date: 2024-09-12 Tentative Ruling

Case Number: 23STCV11758    Hearing Date: September 12, 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

Plaintiffs Jill Reichman and Howard Reichman (“Plaintiffs”) now move to compel nonparty Alex Marroquin (“Marroquin”) to comply with a deposition subpoena for the production of business records. Plaintiffs also seek 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.) 

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

            The Declaration of Samuel Winokur, Plaintiff’s counsel, states the following: “[o]n June 20, 2024, plaintiffs’ counsel sent a letter to Alex Marroquin asking that he comply with the subpoena, and gave him until July 3, 2024 to respond to the letter. Alex Marroquin did not respond to the letter or produce any records.” (Winokur Decl., at p. 8:5-7.) Therefore, the meet and confer requirement is met.

DISCUSSION

This case involves an alleged slip and fall on a walkway owned by Defendant Brent Weisman (“Weisman”). On May 17, 2024, Plaintiffs issued a deposition subpoena for the production of business records on Marroquin, who inspected and did work on the subject walkway both before and after the incident. (Winokur Decl., at p. 7:20-21, Exh. 1.) The subpoena’s date of production was June 14, 2024.

Though Plaintiffs contend they issued a valid subpoena, the proof of service of the subpoena shows it was served by substitute service on Marroquin’s wife; therefore, the subpoena was not served personally. (See Winokur Decl., Exh. 2; Code Civ. Proc. § 2020.220(b)(1) [“Any person may serve the subpoena by personal delivery of a copy of it as follows: (1) If the deponent is a natural person, to that person.”].) Plaintiffs provide no authority showing that substitute service is allowed to effectuate service of a deposition subpoena.

Furthermore, the proof of service for this motion does not show that Marroquin was mailed notice. Therefore, the motion is denied as procedurally defective.

CONCLUSION AND ORDER

Therefore, the Court DENIES the Motion for Order Compelling Non-Party Alex Marroquin to Comply with Subpoena.

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