Judge: Anne Hwang, Case: BC705015, Date: 2023-12-08 Tentative Ruling

Case Number: BC705015    Hearing Date: December 8, 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 October 4, 2023 Defendant Mountain View Unified School District (Defendant) served a deposition subpoena on Plaintiff Israel Marines’ (Plaintiff) treating physician, Tracy L. Zaslow, set for October 31, 2023. On October 27, 2023, Plaintiff served an objection on the basis that Plaintiff’s counsel was unavailable on the date. Plaintiff contends the date was set unilaterally. Plaintiff then filed this motion to quash on October 30, 2023. Defendant opposes and Plaintiff replies.

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).)¿

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

Plaintiff generally argues that Defendant failed to coordinate the deposition with Plaintiff as required by California Rules of Court, rule 3.1010(a) and case law. California Rules of Court, rule 3.1010(a) allows a party to take an oral deposition, if among other things, it “makes all arrangements for any other party to participate in the deposition in an equivalent manner.” Here, Defendant served the subpoena on Plaintiff on October 4, 2023 for a deposition set on October 31, 2023. Therefore, Plaintiff had sufficient time to object and re-schedule on a mutually beneficial date. Plaintiff does not explain why he waited until October 27, 2023, four days before the deposition, to serve an objection. Plaintiff cites Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299 to argue that Defendant should not have scheduled the deposition when Plaintiff had a conflict. However, Tenderloin involved a party who scheduled motions and depositions knowing that the other party had a pre-planned conflict. (Id. at 304–305.) Here, there is no evidence that Defendant knew in advance that Plaintiff’s counsel had a scheduled trial on that date.

Next, Plaintiff argues that the deposition subpoena is defective because there is no indication it was served on Dr. Zaslow. While section 2020.220(c) requires personal service to compel a deponent to appear for deposition, here the deponent appears to have voluntarily agreed to appear. Based on Defendant’s assertions, the deposition was scheduled with Dr. Zaslow through his counsel.

Both parties seek sanctions. However, there is insufficient evidence that the parties acted in bad faith in making or opposing the motion. Both parties are encouraged to meet and confer to promptly schedule a mutually beneficial date and time for Dr. Zaslow’s deposition.

CONCLUSION AND ORDER

Therefore, the Court DENIES Plaintiff’s motion to quash.   

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