Judge: Daniel M. Crowley, Case: 21STCV28830, Date: 2023-01-30 Tentative Ruling
Case Number: 21STCV28830 Hearing Date: January 30, 2023 Dept: 28
Defendants Leonardo Del Rosario and Fortune Commerical Corporation’s Motion to Compel Compliance of Verizon Wireless Services, LLC’s with Subpoena for Records
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On August 5, 2021, Plaintiff Song Hong (“Plaintiff”) filed this action against Defendants Leonardo Del Rosario (“Rosario”) and Fortune Commerical Corporation (“Fortune”) for motor vehicle negligence and general negligence.
On October 8, 2021, Defendants filed an answer.
On October 13, 2022, Defendants filed a Motion to Compel Production of Third-Party Verizon Wireless Services, LLC’s Cell Phone Records to be heard on January 6, 2023. The Court continued the hearing on motion to January 30, 2023. On January 12, 2023, Plaintiff filed an opposition. On January 19, 2023, Defendants filed a reply.
Trial is currently scheduled for September 28, 2023.
PARTY’S REQUESTS
Defendants request that the Court order Verizon Wireless Services, LLC’s (“Third Party”) to comply with the subpoena for records. Defendants also request the Court grant sanctions totaling $1,500.00.
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
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 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
Defendants Leonardo Del Rosario and Fortune Commerical Corporation’s Motion to Compel Compliance of Verizon Wireless Services, LLC’s with 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.