Judge: Craig Griffin, Case: Arroyo Banda vs. Bustamante, Date: 2022-08-29 Tentative Ruling

Defendants Joshua Bustamante and Manuel Bustamante’s (“Defendants” together) motions to compel the depositions of non-party Alliance Surgery Center Inc.’s (“Alliance”) Person Most Knowledgeable and Custodian of Records are both DENIED.

There are multiple service issues with service of the underlying deposition subpoenas and with the lack of notice of hearing for the 08/29/22 hearing date. 

The deposition subpoenas were not properly served.  It appears Alliance is a non-banking corporate entity.  Service on such entities have strict requirements, namely that service must be made upon either 1) the Agent for Service of Process; or 2) the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.  (Civ. Proc. Code § 416.10.) 

Here, the two deposition subpoenas (“Subpoenas”) were served on one “Carolyn Sabas” who is listed as an “X-ray Tech.”  (Motions, Exs. A.)  An X-Ray Tech is not one of the categories of individuals in the code that can accept service of process on behalf of a corporate entity.  The court notes the present motions were also served on “Carolyn S,” who is identified as a “Tech.”  Again, this is not one of the individuals who can accept service on behalf of a corporate entity.

Defense counsel’s paralegal (Lipowski), after “being transferred multiple times” via telephone on multiple different dates, was told Alliance had no record of the Subpoenas (either by in person “service” or by fax).  There is no declaration from Lipowski as to what occurred, instead attorney Contreras put forth a declaration based on “personal knowledge,” yet it is unclear how he has such knowledge of conversations Lipowski allegedly had.  Regardless, it appears that at no point did Defendants ever receive any response from anyone at Alliance.  Despite Lipowski being told multiple times by multiple individuals there was no record of the Subpoenas and having no indication anyone would appear on behalf of Alliance, Defendants decided to proceed with the depositions.  Alliance did not attend.

Instead of simply going to the California Secretary of State website and easily obtaining the information for Alliance’s Agent for Service of Process and then serving said agent, Defendants continued to proceed as though they could personally serve anyone at Alliance’s building.  The court notes the mailing address on the proofs of service is also different from the mailing address on file with the California Secretary of State.

At this point, it does not appear that the Subpoenas, the motions, or the notice of continued hearing date were properly served on someone who was capable of accepting service on behalf of Alliance. 

The motions are denied.  Defendants are directed to properly serve subpoenas on Alliance through its designated agent.  If Alliance fails to respond and/or appear at deposition, Defendants are free file new motions on the properly served subpoenas.

Defendants to give notice.