Judge: Daniel M. Crowley, Case: 20STCV36312, Date: 2023-02-23 Tentative Ruling

Case Number: 20STCV36312    Hearing Date: February 23, 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 and reply papers, the Court rules as follows.

BACKGROUND

On September 23, 2020, Plaintiff Amy Melissa Mata (“Plaintiff”) filed this action agianst 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 January 26, 2023, Defendants filed a Motion to Compel Compliance of Third-Party Brian Aun, D.C., with Subpoena for Records to be heard on January 27, 2023. On February 10, 2023, Plaintiff filed a notice of non-opposition. On February 14, 2023, Defendants filed a reply.

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 $3,970.00.

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

Defendants have 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 electronic service; serving Deponent’s company via electronic service is not the same as Deponent being served via personal service. There is no indication that Third Party agreed to accept electronic service. The Court denies the motion for insufficient service.

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 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.