Judge: Barbara M. Scheper, Case: 19STCV31223, Date: 2023-03-24 Tentative Ruling

Case Number: 19STCV31223    Hearing Date: March 24, 2023    Dept: 30

Dept. 30

Calendar No.

Ortega vs. Frontier Communications Corporation, et. al., Case No. 19STCV31223

Tentative Ruling re:  Defendants’ Motion to Quash Subpoena

Defendants Frontier Communications Corporation, Frontier California, Inc., and Citizens Telecom Services Company LLC (collectively, Defendants) move to quash the Deposition Subpoena for Production of Business Records issued by Plaintiff Sonia Ortega (Plaintiff) to Dr. Marc A. Cohen, M.D., M.S. (Cohen), Defendant’s rebuttal expert. The unopposed motion is granted. The Court orders monetary sanctions against Plaintiff and her counsel in the amount of $3,567.50.

Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents. (Code Civ. Proc., § 2020.010, subd. (b).) A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records.  (Code Civ. Proc., § 2020.020.)  The court, upon motion or the court’s own motion, “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.” (Code Civ. Proc., § 1987.1, subd. (a).) In addition, “the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

            A motion to quash production of documents at a deposition must be accompanied by a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled. (Cal. Rules of Court, rule 3.1345(a)(5).)

On December 16, 2022, Defendants served on Plaintiff their Supplemental Expert Designation, designating Cohen as their rebuttal expert. (Bernstein Decl. ¶ 1, Ex. A.) Later that day, Plaintiff served documents including a Notice of Taking Deposition for Cohen, scheduling Cohen’s deposition for December 19, 2022 (the following Monday), and requesting the production of 30 categories of documents. (Bernstein Decl. ¶ 2, Ex. B.) On January 18, 2023, Plaintiff also served a Deposition Subpoena for Production of Business Records on Cohen (the Deposition Subpoena), requesting production of 46 categories of documents by January 31, 2023. (Bernstein Decl. ¶ 2, Ex. F.)

A deposition subpoena that commands only the production of business records “shall command compliance in accordance with Section 2020.430 on a date that is no earlier than 20 days after the issuance, or 15 days after the service, of the deposition subpoena, whichever date is later.” (Code Civ. Proc. § 2020.410, subd. (c).) Plaintiff issued and served the Deposition Subpoena on January 18, 2023, and so could properly compel compliance with the subpoena by February 7, 2023, at the earliest. The requested production date of January 31, 2023 is improper.

The motion to quash is unopposed, and is granted.

The Court finds that monetary sanctions are warranted against Plaintiff for misuses of the discovery process, by “[u]sing a discovery method in a manner that does not comply with its specified procedures,” and “[e]mploying a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. § 2023.010, subds. (b), (c).)

Defendants seek sanctions in the amount of $3,567.50, for fourteen hours billed by counsel Jamar Davis and six hours by counsel Alexandra Bernstein, both at an hourly rate of $280, plus a half-hour from counsel Brandie N. Charles at a rate of $415. (Bernstein Decl. ¶ 7.) The Court grants monetary sanctions in the amount of $3,567.50.