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.
BACKGROUND
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.
PARTY’S REQUESTS
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.
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
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.
CONCLUSION
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.