Judge: Cherol J. Nellon, Case: 21STCV29818, Date: 2023-04-13 Tentative Ruling

Case Number: 21STCV29818    Hearing Date: April 13, 2023    Dept: 28

Defendant Mark Deazeley’s Motion to Compel Compliance of Third-Party Onsyte Imaging with Deposition Subpoena for Records

Having considered the moving and reply papers, the Court rules as follows.

BACKGROUND

On August 12, 2021, Plaintiff Ramil Constantino (“Ramil”) filed this action against Defendant Mark Deazeley (“Defendant”) for motor vehicle and general negligence.

On November 1, 2021, Defendant filed an answer.

On August 12, 2022, Plaintiffs filed the FAC, adding Plaintiff Jalen Constantino (“Jalen”).

On January 4, 2023, Defendant filed a Motion to Compel Compliance of Third-Party Onsyte Imaging with Subpoena for Records to be heard on April 13, 2023. Defendant filed a reply on April 6, 2023.

Trial is currently scheduled for November 2, 2023.

PARTY’S REQUESTS

Defendant requests that the Court order Third-Party Onsyte Imaging (“Deponent”) to comply with the subpoena for records. Defendant also requests the Court grant sanctions totaling $1,035.00, and order Deponent forfeit $500.00 to Defendant’s counsel, to be paid within 10 days of the hearing on the motion.

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 has not complied with CRC Rule 3.1346 service requirements for this motion. Under the applicable rule, a moving party must serve a motion to compel a third-party subpoena on said Deponent via personal service unless said Deponent has agreed to accept service by mail or electronic service. The proof of service for the motion lists that Deponent was served via mail and electronic service. There is no indication that Deponent agreed to accept mail or electronic service. The Court denies the motion for insufficient service.

CONCLUSION

Defendant Mark Deazeley’s Motion to Compel Compliance of Third-Party Onsyte Imaging with Deposition Subpoena for Records is DENIED.

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.