Judge: Daniel M. Crowley, Case: 22STCV03228, Date: 2023-03-10 Tentative Ruling

Case Number: 22STCV03228    Hearing Date: March 10, 2023    Dept: 28

Defendant Vallarta Food Enterprises, Inc.’s Motion to Compel Third-Party Thomas Reed Physical Therapy’s Compliance with Subpoena for Records

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

BACKGROUND

On January 26, 2022, Plaintiff Rina Ester Tolentino (“Plaintiff”) filed this action against Defendant Vallarta Food Enterprises, Inc. (“Defendant”) for general negligence and premises liability.

On June 29, 2022, Plaintiff filed the FAC.

On July 18, 2022, Defendant filed an answer.

On September 29, 2022, Defendant filed a Motion to Compel Third Party Thomas Reed Physical Therapy’s Compliance with Subpoena to be heard on March 10, 2023.

Trial is currently scheduled for July 26, 2023.

PARTY’S REQUESTS

Defendant requests that the Court order Third-Party Thomas Reed Physical Therapy (“Deponent”) to comply with the subpoena for records. Intervenor also requests the Court impose sanctions totaling $1,600.00.

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.)

A person failing to appear pursuant to a subpoena or a court order also forfeits to the party aggrieved the sum of five hundred dollars ($500), and all damages that he or she may sustain by the failure of the person to appear pursuant to the subpoena or court order, which forfeiture and damages may be recovered in a civil action. (CCP §1992.)

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

Deponent was identified as one of Plaintiff’s treating physical trainers following the subject incident. On October 3, 2022, Defendant served a deposition subpoena on Deponent’s custodian for records with a production date of November 7, 2022. No objections were made, and no documents were produced. The Court grants the motion.

Defendant requests sanctions totaling $1,500.00 based upon 6 hours of attorney’s work, at a rate of $175.00 per hour, 1 $60.00 filling fee, and 1 $500.00 sanction based upon CCP §1992. 3 hours were spent preparing the motion, 1 hour is anticipated in reviewing any opposition and 2 hours are anticipated in preparing for the hearing. The Court notes this motion is unopposed, and that the Court will not award sanctions based on time spent meeting and conferring. The Court also will not impose sanctions based on CCP §1992, as it does not apply to a subpoena for records not issued by the Court. The Court awards sanctions totaling $585.00, based on 3 hours of attorney’s work and 1 $60.00 filling fee.

CONCLUSION

Defendant Vallarta Food Enterprises, Inc.’s Motion to Compel Third-Party Thomas Reed Physical Therapy’s Compliance with Subpoena for Records is GRANTED. Deponent is ordered to produce the requested records within 30 days of the hearing on the motion.

Defendant Vallarta Food Enterprises, Inc.’s Request for Sanctions is GRANTED. Deponent is ordered to pay Defendant and Defendant’s counsel $585.00 in sanctions within 30 days of the hearing on the motion.

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.