Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00595, Date: 2025-04-25 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00595, Date: 2025-04-25 Tentative Ruling

Hearing Date: 03/20/2025 – 8:30am
Case No. 24NNCV03633
Trial Date: UNSET
Case Name: GUISHENG XU, an individual, v. JIAQI HAN, an individual; FUZHOU LIU, an individual; YINMING LIU, an individual; FIRST STOP AUTO LLC, a California limited liability company; and DOES 1 to 10, inclusive

TENTATIVE RULING ON MOTION TO VACATE AND SET ASIDE DEFAULT AND DEFAULT JUDGMENT

RELIEF REQUESTED¿¿¿
“Defendant YINMING LIU will and hereby does move this court for an order vacating and setting aside the default entered on October 11, 2024, and subsequent default judgment entered on February 4, 2025, on the grounds:

a) the Summons and Complaint purportedly served on him by substituted service on August 27, 2024, were not properly served on him and hence the default and default judgment are void;

b) alternatively, on the grounds set forth in Code of Civil Procedure section 473.5.

A copy of Defendant’s proposed Demurrer is attached to this Motion as Exhibit “C.”

The relief requested by this Motion is based upon this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the declarations of Defendant Yinming Liu and Eugene R. Long, all pleadings and documents currently on file with the Court as well as such other oral or documentary evidence as may be presented at the time of hearing on this Motion.”

(Def. Mot. p. 2.)

PROCEDURAL

Moving Party: Defendant, Yinming Liu (Defendant or Movant)

Opposing Party: Plaintiff, Guisheng Xu

Proof of Service Timely Filed (CRC, Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Moving Papers: Notice/Motion [filed 2/10/2025]; Amended Notice/Motion [filed 2/24/2025];

Opposition Papers: Opposition

Reply Papers: Reply

BACKGROUND

Plaintiff, Guisheng Xu, filed the instant action on 8/19/2024 against Defendants – (1) Jiaqi Han, an individual, (2) Fuzhou Liu, an individual, (3) Yinming Liu, an individual, (4) First Stop Auto LLC, a California limited liability company, and (5) Does 1 to 10, inclusive.

Entry of default was entered against all of the non-Doe Defendants on 10/11/2024.

Does 1 to 10 were dismissed from the Complaint on 10/29/2024.

On 02/04/2025, default judgment was entered against (1) Jiaqi Han, an individual, (2) Fuzhou Liu, an individual, (3) Yinming Liu, an individual, and (4) First Stop Auto LLC, a California limited liability company.

For purposes of this hearing, the Court considers Defendant, Yinming Liu’s, amended notice/motion filed on 2/24/2025 and not the earlier filed notice/motion that was filed on 2/10/2025.

ANALYSIS
Preliminary Matter

In the instant action, Plaintiff filed four proofs of substituted service on 8/29/2024 for all of the named Defendants in this action.

Moving Defendant, Yinming Liu, moves for an order to vacate and set aside the default and default judgments entered against him on the basis that he was not properly served.

Movant appears to move pursuant to CCP § 473(d), and in the alternative, § 473.5.

The Court notes that neither party’s papers is a model of clarity. For example, neither party makes clear why § 473(d) or § 473.5 is or is not the appropriate statute to move under to vacate the default/default judgment. Generally speaking, Defendant argues that service upon him was improper, and Plaintiff argues that service upon Defendant was proper. To the Court, this motion appears to be akin to a motion to quash service of summons. Either way, since Defendant’s motion does not make clear why § 473(d) or § 473.5 is the appropriate statute, and since Plaintiff did not oppose Defendant’s motion on the grounds that those two statutes are not the proper statutes, the Court will assume Defendant moved under the proper statute.

Substantive

On 8/29/2024, Plaintiff filed a proof of service of summons that alleged substituted service on Defendant, Yinming Liu, on 8/27/2024.

Defendant, Yinming Liu, argues that service upon him was not proper.

Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.)

As to how Defendant believes that service upon him was improper is not entirely clear. Many times Defendant asserts arguments without citing legal authority. Or at times, Defendant will make reference to legal authority, but in no clear manner does Defendant explain how his argument is tied to the legal authority that he cited.

For example, Defendant first appears to argue that service upon him was not valid because Plaintiff did not personally serve him.

The argument that service was improper because Defendant was not personally served appears to be unavailing for several reasons.

First, Plaintiff’s proof of service lists service upon Defendant via substituted service; it does not list service upon Defendant via personal service.

Second, it does not appear that Defendant has to be personally served, because substituted service is an alternative to personal service.

As explained in American Express Centurion Bank v. Zara:

The Code of Civil Procedure specifies the various methods by which service may be made upon defendants who are sued as individuals.

The method described as “personal service” means service that is accomplished “by personal delivery of a copy of the summons and of the complaint to the person to be served.” (§ 415.10.) If the complaint and summons were personally delivered to, i.e., handed to, defendant then he could be said to have been “personally served.”

A defendant may also be “personally” served by delivering a copy of the summons and complaint to an agent authorized to accept service on behalf of that defendant. (§ 416.90; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶¶ 4:128 to 4:132, pp. 4–19 to 4–21; (rev. # 1, 2010) ¶ 4:184, p. 4–27 (rev. # 1, 2004) (hereafter Weil & Brown, Civil Procedure Before Trial).) An authorized agent might include, for example, an attorney who has been expressly authorized to accept service, or a sheriff or jailer having custody of a prisoner. (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:128, p. 4–19, ¶¶ 4:130.2, 4:132, pp. 4–20 to 4–21.)

Another alternative available for serving individual defendants is what is commonly known as “substitute service.” Substitute service on an individual is accomplished by “leaving a copy of the summons and complaint **103 at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address ..., at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” (§ 415.20, subd. (b).)

However, an individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint “cannot with reasonable diligence be personally delivered” to the individual defendant. (§ 415.20, subd. (b); Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801, 152 Cal.Rptr. 836.) Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “ ‘reasonable diligence.’ ” (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:196, p. 4–30.)

(American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

Thus, Defendant’s argument that service was improper because he was not personally served is unavailing.

Substituted Service – Usual Place of Business

The proof of service pertaining to Defendant, Yinming Liu, states that Defendant was substitute served at “314 E Garvey Ave Monterey Park, CA 91755.”

Further, Plaintiff’s proof of service checks a box for substituted service via business to “a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served.” The proof of service also indicates that the documents were left with “Jane Doe – Angela, refused last name (Gender: F Age: 35 Height : 6’0” Weight: 120 Race: Asian American Hair: Black Other: Hazel Eyes) Manager.”

Under CCP § 415.20(b), substitute service is effectuated when:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(CCP § 415.20(b).)

Defendant appears to be arguing that substitute service was not proper under § 415.20(b) because he was not served at his “usual place of business,” and because service was not left with “a person apparently in charge of his or her office, place of business, or usual mailing address.”

Attached to the motion, the declaration of Defendant Yinming Liu is attached.

In relevant part, Liu’s declaration states:

2. Plaintiff Guisheng Xu, states that service of a Summons and Complaint was affected [sic] by substitute service on me on August 27, 2024. Plaintiff claims that substitute service was made by serving on one Jane Doe – “Angela” -- who refused to provide her last name, who held a position as a “Manager.” I do not know this individual nor do I have any personal or business relationship with her.

3. The address of 314 Garvey Avenue Monterey Park, CA 91755 is a small building with several businesses at that location, and it is not my place of business. The building does not have any front desk person or onsite management office. The corporate defendant First Stop Auto LLC is a dormant entity with no revenue, employees, or operations. It does not have any manager, employees, or representatives at that address.

4. I first became aware of this lawsuit on January 2, 2025, upon receipt of a WeChat message from defendant Fuzhou Liu. A review of the lawsuit revealed that it concerns a dispute concerning an unpaid loan of $50,000 between two individuals, Plaintiff and Mr. Fuzhou Liu. It has nothing to do with me as an individual or the corporate defendant, First Stop Auto LLC.

5. On February 4, 2025, I appeared at the Court and sought to express my position to the Court. The Court advised me that it cannot give me any legal advice and the only advice to me was to retain a lawyer to file a motion for relief. Accordingly, I have retained the law firm of WHGC, PLC to file this Motion.

(Liu Decl. ¶¶ 2-5.)

To the extent that Defendant is arguing that substitute service was not proper under § 415.20(b) because he was not served at his “usual place of business,” Defendant’s declaration appears to address this in ¶ 3 of the Liu declaration wherein Liu states, “The address of 314 Garvey Avenue Monterey Park, CA 91755 is a small building with several businesses at that location, and it is not my place of business.” (Liu Decl. ¶ 3.)

In Opposition, Plaintiff argues that Defendant Yinming Liu was in fact properly substitute served at his “usual place of business.” Plaintiff argues that Liu is making misrepresentations to the Court and that the 314 Garvey address is in fact Liu’s “usual place of business.”

To support this argument, Plaintiff attaches the declaration of Plaintiff’s attorney (Tom F.Y. King), along with Exhibits A-E cited in King’s declaration.

King states as follows:

2. In or about August 2024, I searched, downloaded, and printed a statement of information filed with California Secretary of State filed by Yinming Liu on behalf First Stop Auto LLC on August 13, 2024. Attached hereto as Exhibit A is a true and correct copy of the statement of information I obtained from California Secretary of State website. It shows Yingming Liu as the CEO, member, manager, and agent for service of process of First Stop Auto LLC, located at 314 E Garvey Ave, Monterey Park, CA 91755.

3. Previously, before Yinming Liu filed the August 13, 2024 statement, I also searched and download a statement of information Yinming Liu filed with California Secretary of State the year before on July 5, 2023, which also shows Yinming Liu as the CEO, member, manager, and agent for service of process of First Stop Auto LLC located at 314 E Garvey Ave, Monterey Park, CA 91755. A true and correct copy of said statement is attached hereto as Exhibit B.

4. In January 2025, after the three individual defendants appeared in court to try to argue their case on January 16, 2025, I searched, found, and download from California Secretary of State website a statement of information filed by Yinming Liu on January 3, 2025 moving the company address to 797 E Arrow Hwy, Azusa, CA 91702, a copy of which is attached hereto as Exhibit C. I also found and downloaded a statement of information filed on January 16, 2025 by co-defendants Jiaqi Han moving the company address back to 314 E Garvey Ave, Monterey Park, CA 91755 and removing Yinming Liu's name from the company. A true and correct copy of said statement is attached hereto as Exhibit D.

5. As a result of the two successively filed statement of information First Stop Auto LLC filed with California Secretary of State in January 2025, all previously filed statement of information were purged from the public record. I inquired on this matter online and discovered that it is the policy of California Secretary of State to only keep the two most recently filed statement of information for an entity for public record. Attached hereto are search results from Google based on the search terms "California Secretary of State purging prior statement of information." The search result shows a general result followed by links to specific webpage results. Attached hereto as Exhibit E is a page from the general search result and a specific search results from California Secretary of State website.

(King Decl. ¶¶ 2-5.)

However, even assuming the truth of King’s declaration and the attached exhibits, Plaintiff’s argument is not on point and appears to miss the mark.

For example, to the extent that the California Secretary of State lists Yinming Liu as manager, member, CEO, and agent for service of process at the 314 E Garvey address, that information is applicable to First Stop Auto LLC. That information says nothing about the Defendant as an individual that is filing the instant motion. The instant proof of service that Defendant is arguing is improper is the proof of service as to the individual, Yinming Liu. Yinming Liu is arguing that the 314 address is not his usual place of business. At best, the information attached from the California Secretary of State would maybe seem to indicate that Yinming Liu could accept service at the 314 E Garvey address for First Stop Auto LLC since he was listed as agent of service of process for First Stop Auto LLC. However, to reiterate, that information says nothing about where Yinming Liu, the individual’s usual place of business is. At best, it may show where First Stop Auto LLC’s usual place of business is. Ultimately, First Stop Auto LLC is not moving to vacate default/quash service of summons. Here, moving Defendant is Yinming Liu the individual.

At best, maybe the successive filings with the Secretary of State tests Liu’s credibility for changing the address of First Stop Auto LLC and changing the name of the agent for service of process. However, again, even assuming there were bad faith, the Court fails to see how Plaintiff’s arguments addresses the usual place of business of the moving Defendant, Yinming Liu, the individual.

Despite all this, in Defendant’s Reply Defendant confusingly argues that even if 314 E Garvey were Liu’s place of business, service was not proper because the crucial question is whether service was proper where Plaintiff served an unknown individual at a location that housed several other businesses where there is no indication that the individual ever informed Liu of service.

Therefore, the Court will hear argument from the parties about the “usual place of business” of Defendant.

Substituted Service – Person Apparently in Charge of his or her office, place of business

The proof of service pertaining to Defendant, Yinming Liu, states that Defendant was substitute served at “314 E Garvey Ave Monterey Park, CA 91755.”

Under CCP § 415.20(b), substitute service is effectuated when:

(CCP § 415.20(b).)

Defendant argues that the individual who was served on Defendant’s behalf is not an individual with whom Liu had any personal or business relationship.

Further, in relevant part, Liu’s declaration states:

2. Plaintiff Guisheng Xu, states that service of a Summons and Complaint was affected [sic]by substitute service on me on August 27, 2024. Plaintiff claims that substitute service was made by serving on one Jane Doe – “Angela” -- who refused to provide her last name, who held a position as a “Manager.” I do not know this individual nor do I have any personal or business relationship with her.

(Liu Decl. ¶¶ 2-5.)

Defendant’s argument – that the individual who was served on Defendant’s behalf is not an individual with whom Liu had any personal or business relationship – is confusing because it isn’t entirely clear what portion of § 415.20(b) Defendant is arguing that Plaintiff did not comply with.

Presumably, Defendant is trying to argue that “Jane Doe – Angela” was not “a person apparently in charge of his or her office, place of business,” and thus service was improper. Defendant’s declaration does not state that Jane Does/Angela was not “a person apparently in charge of his or her office or place of business” in any explicit terms. Instead, the Liu declaration states in relevant part, “I do not know this individual nor do I have any personal or business relationship with her.” (Liu Decl. ¶ 2.)

In Opposition, Plaintiff does not address Defendant’s argument regarding the individual that was allegedly served in any clear manner. Plaintiff’s Opposition seems to mainly contest that 314 E Garvey was in fact the usual place of business of Defendant. It seems like Plaintiff attempts to argue that Defendant is not credible based on the filing with the secretary of state because Defendant would know the people at the 314 E Garvey address because it is his address.

In Reply, Defendant argues that the key issue here is that Plaintiff served an unknown individual that housed several other businesses where there is no indication that the individual ever informed Liu of the service.

Here, the Court will hear argument. Defendant appears to be arguing, although not explicitly stated in Defendant’s motion or Defendant’s declaration, that “Jane Doe – Angela” was not a person apparently in charge of his or her office, or place of business. Opposition does not do much to contest this argument. Plaintiff’s Opposition seems to just be implying that Defendant would in fact know who Angela is because the 314 Garvey address is Defendant’s business. The Reply reiterates that Defendant has no idea who Angela is and that there is no evidence to suggest that she worked with or for Liu.

473.5

Under CCP § 473.5(a):

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(CCP § 473.5(a).)

Defendant argues that the Summons and Complaint did not result in actual notice to Liu for Liu to defend the action.

However, the Court notes that neither party’s arguments regarding § 473.5 adds any further substance to their arguments. Plaintiff’s arguments that Defendant did in fact have notice are based on the same arguments previously discussed, i.e., Plaintiff argues that Defendant is lying and in fact had notice because Defendant is/was CEO of First Stop Auto LLC which is located at 314 E Garvey.

Overall

Dill v. Berquist Construction Co. states:

It has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper. (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770 [145 Cal.Rptr. 814], quoting from Judicial Council Rep., supra, com. to § 417.10, p. 56; but see Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 255, fn. 7 [211 Cal.Rptr. 517, 695 P.2d 1058], overruling Lowenstein on a related issue.) However, that presumption arises only if the proof of service complies with the statutory requirements regarding such proofs.

(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

Here, Defendant appears to have shown how Plaintiff’s proof of service as to moving Defendant did not comply with the statutory requirements for proof of substituted service. Defendant appears to have shown this by showing that the location served was not his usual place of business. Plaintiff’s argument in Opposition appeared to be unavailing because at best Plaintiff may have shown that the address served was First Stop Auto LLC’s usual place of business; however, First Stop Auto LLC is not seeking to vacate the default/default judgment. Here, moving Defendant is Yinming Liu. Plaintiff did not submit proof or evidence about Yinming Liu, the individual’s, usual place of business. Even setting aside the issue of “usual place of business” and focusing on whether or not a “person apparently in charge of his or her office or place of business” was served, Defendant seems to argue that he had no idea who the person is that Plaintiff served. In Opposition, Plaintiff simply seems to argue that Defendant is lying and Defendant would know who was served because the location served was where Defendant’s business was located.

Dill v. Berquist Construction Co. states, “In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)

Tentatively, the Court plans to GRANT, Defendant Yinming Liu’s motion to vacate the default and default judgment entered against Yinming Liu. The Court notes that this order does not apply to the other Defendants, as no other Defendants moved to vacate default/judgment.

Case Number: 23GDCV00595 Hearing Date: April 25, 2025 Dept: E

Case No. 23GDCV00595
Trial Date: UNSET
Case Name: ANTONIO LUJAK, an individual; v. FCA US LLC; a limited liability company; ALFA ROMEO USA; a business entity; ALFA ROMEO OF GLENDALE; a California business entity; FIAT AND ALFA ROMEO OF SANTA MONICA; a California business entity; and DOES 1-100; inclusive

TENTATIVE RULING - MOTION TO COMPEL DEPOSITION OF NON-PARTY

BACKGROUND
Plaintiff filed the instant action on 3/23/2023.

Plaintiff’s action stems from allegations that, due to Defendants’ negligence and defects in the automobile, when Plaintiff parked his automobile, the parking brake and/or “Safe Hold” function failed, and the automobile rolled into him, crushing him against a wall and causing serious injuries. (FAC ¶ 24.)

On 8/25/2023, this Court granted FCA US LLC’s motion to strike punitive damages; however, the Court granted Plaintiff leave to amend to file an amended complaint.

On 9/25/2023, Plaintiff filed the First Amended Complaint (FAC), and the FAC alleges two causes of action – (1) Negligence and (2) Strict Liability.

The FAC names the Defendants as: (1) FCA US LLC; a limited liability company; (2) Alfa Romeo USA; a business entity; (3) Alfa Romeo of Glendale; a California business entity; (4) Fiat and Alfa Romeo of Santa Monica; a California business entity; and (5) Does 1-100, inclusive.

On 10/22/2024, Plaintiff named Doe 1 as Stellantis N.V.

Confusingly, on 8/22/2023, which would have been before Plaintiff filed the FAC, eCourt indicates that Defendant, Alfa Romeo USA, a business entity, was removed. Presumably, this is the case because Plaintiff filed a request for dismissal of Alfa Romeo USA, a business entity, on 8/22/2023. This is confusing because on 9/25/2023, when Plaintiff filed the FAC, the FAC names Alfa Romeo USA as a Defendant. At the hearing, the parties need to address whether or not Alfa Romeo USA is still a Defendant in this action.

On 12/13/2023, entry of default was entered against Defendant, Fiat and Alfa Romeo of Santa Monica, a California business entity, on the FAC.

Now, Plaintiff moves for an order compelling non-party, Casey O’Brien, to appear at an in-person deposition and produce documents pursuant to a deposition subpoena served on March 3, 2025.

RELIEF REQUESTED¿
“Plaintiff Antonio Lujak (“Plaintiff”) will move, and hereby does move the Court, for an order compelling Casey O'Brien (“O'Brien”), a non-party, to appear at an in-person deposition and produce documents pursuant to a deposition subpoena properly served on March 3, 2025.

This motion will be, and is hereby, made pursuant to Code of Civil Procedure sections 1987.1, 2020.010, 2020.220, 2025.010, 2025.480, et seq. As set forth herein, O'Brien has failed to comply with the deposition subpoena. After being served with the subpoena O'Brien failed to appear for the on the day of the deposition. As any opposition to this motion is not substantially justified, Plaintiffs also seek sanctions against O'Brien for reasonable costs and attorney’s fees in the amount of $1,000.00 in accordance with Code of Civil Procedure sections 1987.2(a), 2020.030, and 2025.480. Plaintiff notes that because O'Brien failed to provide any response or objection to the subpoena, a separate statement is not required under California Rule of Court, Rule 3.1345(b)(1).

This motion is further based upon this notice, the attached Memorandum of Points and Authorities, the Declaration of Vahan Mikayelyan, upon the records and files in this action, and upon such further evidence and argument as may be presented prior to or at the time of hearing on the motion.”

(Pl. Mot. p. 2.)

Preliminary Procedural
Moving Party: Plaintiff, Antonio Lujak

Responding Party: No Opposition by Defendants; No Opposition by Non-Party Casey O’Brien

16/21 Day Lapse (CCP § 12c and § 1005(b)): Ok

Proof of Service Timely Filed (CRC, Rule 3.1300(c).): Ok

Correct Address (CCP § 1013, § 1013a, § 1013b): Uncertain –

Plaintiff should be prepared to address the service issues explained below.

As to service of the instant motion on non-party, Casey O’Brien, Plaintiff served Casey O’Brien via personal service at: Alfa Romeo of Santa Monica, 1820 Santa Monica Blvd, Santa Monica, CA 90404.

Since no opposition was submitted by O’Brien, Plaintiff should be prepared to explain how it determined that it served the proper address for non-party O’Brien. The Court has no way to cross-reference what the proper service address is for O’Brien on eCourt since O’Brien is not a party to this action.

[The Court also notes that service of the deposition subpoena itself was allegedly served by personally delivering a copy to O’Brien at: Alfa Romeo of Santa Monica, 1820 Santa Monica Blvd, Santa Monica, CA 90404.]

As to service of this motion on Defendant, FCA US LLC, eCourt lists FCA’s counsel as Anthony Thomas, with an email address of tony.thomas@kleinthomaslaw.com. However, Plaintiff’s proof of service indicates that it served tony.thomas@kleinthonaslaw.com. Since Plaintiff served this motion to FCA via electronic mail, and since the email address that Plaintiff served for Anthony Thomas (tony.thomas@kleinthonaslaw.com) does not match with the email address listed on eCourt for FCA’s counsel (tony.thomas@kleinthomaslaw.com), Plaintiff should be prepared to address this issue.

As to service of this motion on Defendant, Alfa Romeo of Glendale, the Court notes that eCourt lists two email addresses for Alfa Romeo of Glendale’s counsel. One email address is listed as tony.thomas@kleinthomaslaw.com, and as previously explained, Plaintiff did not properly serve that email address. However, eCourt also lists Alfa Romeo of Glendale’s counsel as Melissa Wilner at melissa.wilner@kleinthomaslaw.com, and Plaintiff appears to have properly served Melissa Wilner. Therefore, it appears as if service was properly effectuated on Defendant, Alfa Romeo of Glendale.

Plaintiff’s proof of service of this motion also indicates service on Defendant, Fiat and Alfa Romeo of Santa Monica. However, service on Defendant, Fiat and Alfa Romeo of Santa Monica was effectuated only via US Mail. Plaintiff served Fiat and Alfa Romeo of Santa Monica at 1820 Santa Monica Blvd, Santa Monica, CA 90404. However, eCourt does not list an address for Defendant, Fiat and Alfa Romeo of Santa Monica, and eCourt does not indicate that Fiat and Alfa Romeo of Santa Monica has counsel. Therefore, the Court has no ability to determine if Plaintiff served Fiat and Alfa Romeo of Santa Monica at the proper address. Further, the Court notes that on 12/13/2023, entry of default was entered against Defendant, Fiat and Alfa Romeo of Santa Monica, a California business entity, on the FAC. The Court to hear argument.

Further, while Plaintiff’s proof of service for the instant motion indicates service, or attempted service, on Defendants (FCA US LLC; Alfa Romeo of Glendale; and Fiat and Alfa Romeo of Santa Monica), the Court notes that Plaintiff’s proof of service does not indicate service on Defendants (Alfa Romeo USA; Stellantis N.V.). The Court to hear argument as to why Plaintiff decided to serve this motion on only some of the Defendants in this action.

Moving Papers: Notice/Motion; Proposed Order; Proof of Personal Service Casey O’Brien

Opposition Papers: No opposition submitted by any parties; no opposition submitted by the non-party O’Brien

Reply Papers: Notice of no opposition

ANALYSIS
Preliminary Background
Plaintiff alleges that the instant deposition subpoena was personally served on non-party, Casey O’Brien on March 3, 2025. Plaintiff alleges that the instant deposition subpoena required attendance at a deposition on March 13, 2025, along with production of document requests.

Plaintiff argues that O’Brien was the adviser with Alfa Romeo of Santa Monica when Plaintiff’s automobile was serviced.

Plaintiff argues that O’Brien failed to appear for the deposition, and Plaintiff was forced to take a notice of nonappearance for O’Brien’s deposition.

The Court notes that the deposition subpoena at issue in Plaintiff’s motion is titled “DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS.” (See Ex. 1.)

Further, the deposition subpoena at issue states in relevant part, “YOU ARE ORDERED TO APPEAR IN PERSON TO TESTIFY AS A WITNESS in this action at the following date, time, and place: Date: 03/13/2025.” (See Ex. 1.)

Further, the deposition subpoena at issue states in relevant part, “You are ordered to produce the documents and things described in item 3.” (See Ex. 1.)

With respect to Exhibit 1 in Plaintiff’s motion, there are two proofs of service for the deposition subpoena itself.

One proof of service for the deposition subpoena lists proof of service on February 26, 2025, and this proof of service appears to be identical, with respect to the parties/counsel served, as the proof of service for the instant motion.

The second proof of service, in Exhibit 2, is the proof of service for the deposition subpoena as to Casey O’Brien, which indicates service on March 3, 2025.

Both of the proofs of service in Exhibit 1 and 2, with respect to service of the deposition subpoena itself , face the same exact service issues that the motion faced that this Court pointed out above in its Preliminary Procedural section titled “Correct Address (CCP § 1013, § 1013a, § 1013b)”. Therefore, Plaintiff should be prepared to address every service issue that the Court brought up with respect to service of the instant motion, along with service of the deposition subpoena itself.

Substantive
“Except as provided in subdivision (a) of Section 2025.280, the process by which a nonparty is required to provide discovery is a deposition subpoena.” (CCP § 2020.010(b).)

Under CCP § 2020.020, a deposition subpoena may command any of the following:

(a) Only the attendance and the testimony of the deponent, under Article 3 (commencing with Section 2020.310).

(b) Only the production of business records for copying, under Article 4 (commencing with Section 2020.410).

(c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things, under Article 5 (commencing with Section 2020.510).

(CCP § 2020.020(a)-(c).)

Here, it appears as if Plaintiff’s deposition subpoena falls under 2020.020(c) because the deposition subpoena appears to command the attendance and testimony of the deponent, as well as the production of documents.

Although Plaintiff’s motion seeks to compel non-party, Casey O’Brien, to appear at an in-person deposition and produce documents pursuant to the deposition subpoena allegedly served on March 3, 2025, it is unclear if Plaintiff should be awarded this relief.

It is unclear if Plaintiff should be awarded the order that it seeks because Plaintiff’s motion is not the model of clarity.

First, Plaintiff’s motion is difficult to follow because Plaintiff does not explain clearly how it satisfied the appropriate legal standard, whatever that standard may be.

For example, Plaintiff appears to be moving under CCP §§ 1987.1 and 2025.480. Aside from the fact that Plaintiff does not explain why it can move under either §§ 1987.1 or 2025.480, Plaintiff does not explain how it satisfies the requirements of §§ 1987.1 or 2025.480.

Below, the Court will cite to relevant portions of 1987.1 and 2025.480.

CCP § 1987.1 states:

(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, 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.

(b) The following persons may make a motion pursuant to subdivision (a):

(1) A party.

(2) A witness.

(3) A consumer described in Section 1985.3.

(4) An employee described in Section 1985.6.

(5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights.

(c) Nothing in this section shall require any person to move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer served under paragraph (1) of subdivision (b) of Section 1985.3 or employment records of any employee served under paragraph (1) of subdivision (b) of Section 1985.6.

(CCP § 1987.1(a)-(c).)

In relevant part of CCP § 2025.480:

(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.

(c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice.

…

(h) Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion.

(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.

(CCP § 2025.480(a)-(c) & (h)-(i).)

The Court to hear argument as to why either §§ 1987.1 or 2025.480 can apply here, and the Court to hear argument as to how Plaintiff met those legal standards.

Section 2025.450 vs. Section 2025.480
Plaintiff argues that it does not have to show good cause for the document requests at issue because § 2025.450 (which requires good cause) applies to parties, whereas § 2025.480, which applies to nonparties, does not require good cause.

The Court to hear argument as to why § 2025.450 does not apply and why § 2025.480 does apply.

Plaintiff appears to be correct that § 2025.450(a) refers to parties, whereas § 2025.480(a) does not explicitly mention parties. However, the Court has concerns because when it reads the entirety of § 2025.450 and the entirety of § 2025.480, § 2025.450 appears to be applicable when the deponent fails to appear or produce documents, whereas § 2025.480 appears to be applicable when the deponent attends the deposition but fails to answer specific questions or fails to produce certain documents. The Court gets this impression because § 2025.480(h) mentions lodging portions of the transcript, as if the deposition actually took place. However, on the other hand, Plaintiff is correct to note that § 2025.450(a) refers to parties, whereas § 2025.480(a) does not mention parties, and here, O’Brien is not a party.

The Court to hear argument.

Sanctions
Plaintiff seeks sanctions against Casey O’Brien for reasonable costs and attorney’s fees in the amount of $1,000.00 in accordance with CCP §§ 1987.2(a), 2020.030, and 2025.480.

Under CCP § 1987.2(a), “Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or 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 or that one or more of the requirements of the subpoena was oppressive.” (CCP § 1987.2(a).)

Under CCP § 2025.480(j), “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2025.480(j).)

Under 2020.030, “Except as modified in this chapter, the provisions of Chapter 2 (commencing with Section 1985) of Title 3 of Part 4 of this code, and of Article 4 (commencing with Section 1560) of Chapter 2 of Division 11 of the Evidence Code, apply to a deposition subpoena.” (CCP § 2020.030.)

Plaintiff argues that there is no justification for the failure to comply with the deposition subpoena.

Although Plaintiff’s notice of motion and caption indicate that Plaintiff is only seeking $1,000.00 against O’Brien for attorney’s fees and costs, later in Plaintiff’s motion on page six (6), Plaintiff seeks an additional $975.20 to be reimbursed for the cost of the Court reporter to take the notice of nonappearance.

Confusingly, Plaintiff’s counsel’s declaration states:

I spent well over 3.5 hours reviewing the file, preparing this notice, motion, and conducting legal research. I anticipate spending an additional 1.5 hours preparing and attending the hearing of this matter. Although I do not charge my clients an hourly fee because they are normally contingency cases, my reasonable hourly rate is $375.00 per hour. Thus, the total expenses and attorney’s fees incurred in filing this motion are $1,875.00, but Plaintiff only requests a reduced amount of sanctions in the amount of $1,000.00 against Casey O'Brien.

(Mikayelyan Decl. ¶ 7.)

The Court to hear argument; Plaintiff may have not properly noticed anything more than the initial $1000.00 it sought in the notice page and caption.

Overall
Plaintiff to address all service issues with respect to service of the motion, the deposition subpoena itself, and all other issues in which the Court stated it would hear argument.

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