Judge: Daniel M. Crowley, Case: 21STCV27684, Date: 2023-01-27 Tentative Ruling

Case Number: 21STCV27684    Hearing Date: January 27, 2023    Dept: 28

Defendant Matthew Ross Delgado, Malcolm R. Mazer and Twentieth Century Fox Film Corporation’s Motion to Compel Compliance of Third-Party Bennett Williamson, PHO, QME with Deposition Subpoena

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

BACKGROUND

On July 28, 2021, Plaintiff Lilian O’Connor (“Plaintiff”) filed this action against Defendants Matthew Ross Delgado (“Delgado”), Malcolm R. Mazer (“Mazer”), Twentieth Century Fox Television (“TCFT”), Twentieth Century Fox Film Corporation (“TCFFC”), The Walt Disney Company (“Disney”) and Antonio J. Garcia (“Garcia”) for negligence. 

On September 15, 2021, TCFFC filed an answer on behalf of itself and TCFT. On October 1, 2021, Mazer filed an answer. On October 1, 2021, Delgado filed an answer. 

On October 28, 2022, TCFFC, Delgado and Mazer (“Moving Defendants”) filed a Motion to Compel Compliance of Third-Party Bennett Williamson, PHO, QME with Subpoena for Records to be heard on January 27, 2023. On January 17, 2023, Plaintiff filed an opposition. On January 20, 2023, Moving Defendants filed a reply.

Trial is currently scheduled for June 1, 2023.

PARTY’S REQUESTS

Moving Defendants request that the Court order Third-Party Bennett Williamson, PHO, QME (“Third Party”) to comply with the subpoena for records. Moving Defendants also request the Court grant sanctions totaling $3,142.40.

Plaintiff 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

Defendant has 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 Third Party via personal service unless said Third Party has agreed to accept service by mail or electronic service. The proof of service for the motion lists that Third Party was served via U.S. Mail. There is no indication that Third Party agreed to accept service by mail. The Court denies the motion for insufficient service.

CONCLUSION

Defendant Matthew Ross Delgado, Malcolm R. Mazer and Twentieth Century Fox Film Corporation’s Motion to Compel Compliance of Third-Party Bennett Williamson, PHO, QME with Deposition Subpoena 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.