Judge: Daniel M. Crowley, Case: 21STCV01177, Date: 2022-08-25 Tentative Ruling
Case Number: 21STCV01177 Hearing Date: August 25, 2022 Dept: 28
Intervenor United Financial Causalty Company’s Motion to Compel Deposition of Third-Party Hawthorne Surgery Center’s PMK; Intervenor United Financial Causalty Company’s Motion to Compel Deposition of Third-Party Hawthorne Surgery Center’s Custodian of Records.
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On January 12, 2021, Plaintiff Luis A. Veliz (“Plaintiff”) filed this action against Defendants Chatillo Trucking, Inc. (“Chatillo”), Adalberto Chavez (“Chavez”), and Cesar Gonzalez (“Gonzalez”) for motor vehicle negligence and general negligence.
Chatillo and Chavez filed their answer on September 16, 2021. Gonzalez answered on December 16, 2021.
On April 29, 2022, Complainant-in-Intervention United Financial Casualty Company (“Intervenor”) filed an answer on behalf of Defendants.
On July 22, 2022, Intervenor filed a Motion to Compel the Deposition of Third-Party Hawthorne Surgery Center’s PMK to be heard on August 17, 2022. On August 4, 2022, Plaintiff filed an opposition. On August 10, 2022, Intervenor filed a reply.
On July 22, 2022, Intervenor filed a Motion to Compel the Deposition of Third-Party Hawthorne Surgery Center’s Custodian of Records to be heard on August 17, 2022.
Trial is currently scheduled for September 14, 2022.
PARTY’S REQUESTS
Intervenor requests that the Court order Third-Party Hawthorne Surgery Center (“Deponent”) to produce a PMK to appear for a deposition within 10 days of the hearing on the motion. Intervenor also requests that the Court order Deponent to produce a custodian of records to appear for a deposition within 10 days of the hearing on the motion.
Plaintiff requests the Court deny the motion regarding the PMK.
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
Intervenor submitted a Proof of Service on Third-Party for “Amended Notice of Continued hearing on Intervenor’s Notice of Motion and Motion to Compel the Deposition of the Custodian of Records for Hawthorne Surgery Center.” This is not proof of service of the actual substantive motion, which Intervenor still lacks. In reviewing the document, this is simply a notice that the hearing has been continued to August 25, 2022. Again, there is no proof of service indicating that Intervenor ever served Third-Party with either of the actual subject motions. Given that the Court continued the motion so that Intervenor could file proof of service, which Intervenor specifically noted would be filed separately, and Intervenor has failed to do so, the Court denies the motion.
CONCLUSION
Intervenor United Financial Causalty Company’s Motion to Compel Deposition of Third-Party Hawthorne Surgery Center’s PMK is DENIED.
Intervenor United Financial Causalty Company’s Motion to Compel Deposition of Third-Party Hawthorne Surgery Center’s Custodian of 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.