Judge: Cherol J. Nellon, Case: 20STCV36312, Date: 2023-05-15 Tentative Ruling

Case Number: 20STCV36312    Hearing Date: May 15, 2023    Dept: 28

Defendants Admiral Pest Control, Inc and Anthony Lee Bearden’s Motion to Compel Compliance of Third-Party Brian Aun, D.C., with Deposition Subpoena for Records Having considered the moving papers, the Court rules as follows. BACKGROUND On September 23, 2020, Plaintiff Amy Melissa Mata (“Plaintiff”) filed this action against Defendants Admiral Pest Control, Inc (“APC”) and Anthony Lee Bearden (“Bearden”) for negligence and negligence per se. On October 23, 2020, Defendants filed an answer. On April 3, 2023, Defendants filed a Motion to Compel Compliance of Third-Party Brian Aun, D.C., with Subpoena for Records to be heard on May 15, 2023. Trial is currently scheduled for May 2, 2023. PARTY’S REQUESTS Defendants request that the Court order Third-Party Brian Aun, D.C. (“Deponent”) to comply with the subpoena for records. Defendants also request the Court grant sanctions totaling $4,230.00. 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. (CCP § 2020.010.) A deposition subpoena may command the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (CCP § 2020.020.) The Court may order a third party to comply with a deposition subpoena upon any terms or condition as the court shall declare. (CCP § 1987.1.) CRC Rule 3.1346 states “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” DISCUSSION Defendant did not originally file proof of service on Deponent, but later submitted proof of personal service. Defendant has complied with the service requirements for this motion. Plaintiff alleges that she sustained injuries following the subject incident; she received treatment from Deponent's business, from Deponent. Defendants served a deposition subpoena for appearance and production of records on Deponent on May 10, 2022, ordering him to appear for the deposition on May 23, 2022. Parties rescheduled the deposition for September 16, 2022, pursuant to scheduling requests. Deponent appeared for his deposition, but allegedly failed to provide any of the request documents. Defendants could rely on some previously produced documents but did not have access to any imaging studies or billing records. Deponent’s custodian of records issued a declaration stating that no films relating to Plaintiff existed. At his deposition, Deponent testified he had additional, relevant records that had yet to be produced. Deponent has yet to produce these records. As these records are relevant to the litigation, Deponent has acknowledged they exist, and Defendants properly subpoenaed these records, the Court finds good cause and grants the motion. Defendants request sanctions totaling $4,230.00, based upon 11.5 hours of attorney’s work, at a rate of $220.00 per hour, 1 $60.00 filling fee, 1 $40.00 service fee, and $1,600.00 in additional deposition fees. Attorney’s work is based on 7.5 hours drafting the motion, 2 hours preparing a reply and 2 hours attending the hearing. The Court notes this motion is unopposed. The Court also will not grant sanctions based on additional deposition fees, as these are costs that would have been occurred regardless of when these records were produced, and further deposition is not a focus of the motion. The request for service fees will also not be granted. The Court grants sanctions totaling $940.00, based on 4 hours of attorney’s work and 1 filling fee. CONCLUSION Defendants Admiral Pest Control, Inc and Anthony Lee Bearden’s Motion to Compel Compliance of Third-Party Brian Aun, D.C., with Deposition Subpoena for Records is GRANTED. Deponent is ordered to produce the requested records within 10 days of the hearing on this motion. Defendants Admiral Pest Control, Inc and Anthony Lee Bearden’s Request for Sanctions is GRANTED. Deponent is ordered to pay Defendants $940.00 in sanctions within 30 days of the hearing on the motion. Moving party is ordered to give notice of this ruling. Moving Party is ordered to file the proof of service of this ruling with the Court within five days. The parties are directed to the header of this tentative ruling for further instructions.