Judge: Cherol J. Nellon, Case: 22STCV06512, Date: 2023-05-18 Tentative Ruling

Case Number: 22STCV06512    Hearing Date: May 18, 2023    Dept: 28

Plaintiff Scott Fitzgerald’s Motion to Compel Compliance of Third-Party Dawson Dingman with Deposition Subpoena

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


On February 22, 2022, Plaintiff Scott Fitzgerald (“Plaintiff”) filed this action against Defendants Jeff Shelton (“Jeff”), L3 Harris Technologies, Inc. (“L3”), Roxford XC., LLC (“Roxford”), S&S Fabrication LLC (“S&S”), TRE and Your Equipment Solutions (“YES”) for motor vehicle negligence, general negligence, and premises liability. Plaintiff later amended the complaint to include Defendants Alex Miseirvitch (“Miseirvitch”) and Cindy Shelton (“Cindy”).

On April 7, 2022, Shelton, S&S and TRE filed an answer. On April 11, 2022, Miseirvitch filed an answer. On June 27, 2022, the Court dismissed Cindy, without prejudice, pursuant to Plaintiff’s request. On February 8, 2023, the Court dismissed Roxford, without prejudice, pursuant to Plaintiff’s request.

On April 7, 2022, L3 filed an answer and a Cross-Complaint against Cross-Defendants Jeff, S&S, TRE and YES for express indemnity, implied indemnity, comparative indemnity, declaratory relief and breach of contract. On May 11, 2022, Cross-Defendants filed an answer.

On December 7, 2022, Plaintiff filed a Motion to Compel Compliance of Third-Party Dawson Dingman with Deposition Subpoena to be heard on March 15, 2023. The Court continued the hearing to May 18, 2023.

Trial is currently scheduled for August 22, 2023.


Plaintiff requests that the Court order Third-Party Dawson Dingman (“Deponent”) to comply with the subpoena for records. Plaintiff also requests the Court grant sanctions totaling $1,520.20.


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.”


Plaintiff did not originally file proof of service on Deponent, but later submitted proof of personal service. Plaintiff has complied with the service requirements for this motion.

Plaintiff alleges that he was injured by Jeff’s negligent operation of a forklift on L3’s property. Deponent was a percipient witness to the events and an employee of Jeff at the time of the incident. Plaintiff noticed Deponent’s deposition for December 5, 2022; Deponent agreed to appear at the deposition on the date and location listed in the subpoena. However, two days before the deposition, Deponent sent Plaintiff’s counsel a text message indicating he could not come in for an in-person deposition as his vehicle broke down, but advised he could attend a Zoom deposition. On the day of the deposition, counsel offered to compensate Deponent for transportation costs to the location, but Deponent declined to accept.

The Court finds good cause to grant the motion, as Plaintiff properly noticed Deponent’s deposition, and Deponent failed to appear for said deposition.

The Court, however, finds no basis for sanctions. Deponent texted to Plaintiff days before and indicated that he could not appear for an in-person deposition; Plaintiff’s counsel failed to respond to Deponent’s text until the morning of the deposition. Deponent could have easily assumed the deposition would be conducted over Zoom or would be rescheduled, given Plaintiff counsel’s lack of response. Had communication been more prompt, parties could have potentially avoided motion work. Therefore, the Court finds imposing sanctions on these facts would be unreasonable.


Plaintiff Scott Fitzgerald’s Motion to Compel Compliance of Third-Party Dawson Dingman with Deposition Subpoena is GRANTED. Deponent is ordered to produce the requested records within 10 days of the hearing on this motion.

Plaintiff Scott Fitzgerald’s Request for Sanctions 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.