Judge: Daniel M. Crowley, Case: 21STCV05393, Date: 2022-09-22 Tentative Ruling

Case Number: 21STCV05393    Hearing Date: September 22, 2022    Dept: 28

Defendants Karl Deeb and DHI Contruction Inc.’s Motion to Compel Deposition of Non-Party MV Public Transportation

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

BACKGROUND

On February 10, 2021, Plaintiff Yolanda Martinez (“Plaintiff”) filed this action against Defendants Karl Deeb (“Deeb”), DHI Construction Inc. (“DHI”) and Roy Debuque (“Debuque”) for motor vehicle negligence and general negligence.  

On May 26, 2021, Deeb and DHI filed an answer and a Cross-Complaint against Cross-Defendant Debuque for equitable indemnity and partial equitable indemnity. On July 16, 2021, Debuque filed an answer. On July 7, 2022, the Court dismissed this Cross-Complaint, without prejudice. 

On May 28, 2021, Debuque filed an answer and a Cross-Complaint against Cross-Defendants Deeb and DHI for indemnity and contribution. On November 9, 2021, the Court dismissed the Cross-Complaint, without prejudice, pursuant to Debuque’s request. The Court also dismissed Debuque, with prejudice, from the complaint.  

On August 26, 2022, Defendants filed a Motion to Compel Production of Documents from Third Party MV Public Transportation, Inc. to be heard September 22, 2022. Third Party MV Public Transportation (“Deponent”) filed an opposition on September 12, 2022.

Trial is currently scheduled for June 23, 2023.

PARTY’S REQUESTS

Defendants request that Court compel Deponent to produce the subject vehicle.

Deponent requests the Court deny the motion.

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 served Deponent with this motion via electronic service; under CRC Rule 3.1346, a non-party must be served personally, unless they agree to accept service by mail or electronic service at an address specified on the deposition record. Defendants did not provide any proof of such an agreement. Service is defective.

Deponent’s opposition notes that they never agreed to accept service of this motion, which was improperly served on an employee. Additionally, Deponent notes that it was not filed within the required 60 days of objection. The Court denies the motion.

CONCLUSION

Defendants Karl Deeb and DHI Construction Inc.’s Motion to Compel Deposition of Non-Party MV Public Transportation 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.