Judge Daniel M. Crowley, Case Number: 22STCV26540, Date: 2023-10-27 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff via the Department's email: SMCdept71@lacourt.org before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by LACourtConnect for all matters.

Defendant’s Motion to Enforce Deposition Subpoena on Sunbelt Realty Services is denied.

Defendant California Automobile Insurance Company, Inc. (erroneously sued as Mercury Insurance Services, LLC) (“Defendant”) moves for an order enforcing compliance with the deposition subpoena it served nonparty witness Sunbelt Realty Services (“Sunbelt”). Defendant also seeks sanctions of $1,464 against plaintiff’s counsel, The Morgan Law Group, for reasonable attorneys’ fees and costs incurred as a result of this motion.

On August 16, 2022, Plaintiff Clean Initiative LLC (“Plaintiff”) filed the instant action.

On October 16, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendant and Does 1 through 10, inclusive, asserting two causes of action: (1) breach of contract; and (2) tortious bad faith, breach of implied covenant of good faith and fair dealing. The SAC alleges the following. Plaintiff is in the business of providing inspection and, where necessary, repairs to the roofs of real property. (SAC ¶ 2.) On or about April 1, 2022, at the request of Dora Kotthru (the “Policy Holder”), Plaintiff performed an inspection of the roof of the real property located at 23112 Vanowen Street, Los Angeles, California 91307 (“Insured Property”). (SAC ¶ 2.) After performing the inspection and identifying the damage to be repaired, Plaintiff received an Assignment of Insurance Benefits (“AOB”) from the Policy Holder of Defendant’s insurance policy, which covered the Insured Property and the damages sustained. (SAC ¶ 2.) In other words, instead of paying Plaintiff directly, the Policy Holder assigned Plaintiff their rights and benefits under their insurance policy covering the Insured Property. (SAC ¶ 11.) Therefore, Plaintiff submitted a claim for payment directly to Defendant for payment of the inspection and cost of repairs, but Defendant has denied, refused to honor, and/or pay the submitted claim in breach of the insurance contract and without substantial justification. (SAC ¶ 13.)

On June 16, 2023, Defendant filed the instant motion to enforce deposition subpoena. On October 13, 2023, Plaintiff filed its opposition. On October 20, 2023, Defendant filed its reply.

“[D]iscovery from a nonparty may be obtained only by ‘deposition subpoena’ (§ 2020.010, subd. (b)).” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 130, italics removed.) “A business records subpoena directs the nonparty’s custodian of records (or other qualified person) to deliver the requested documents (in person, by messenger, or by mail) to the ‘deposition officer’ specified in the subpoena. (§ 2020.430, subd. (a).)” (Id. at p. 131.)

“A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.” (Code Civ. Proc., § 2020.410, subd. (a).)

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).)

“This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.480, subd. (b).)

Under Code of Civil Procedure section 1987.1, subdivision (a), A court may make an order “directing compliance with it upon those terms or conditions as the court shall declare.” (See also Civ. Code Proc., § 2025.480, subd. (a) [providing that if a deponent fails to produce any document “that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that… production”].)

Defense counsel testifies that on April 13, 2023, the Policy Holder, through Plaintiffs’ counsel, objected to the subpoena. (Motion, declaration of Mary H. Kim (“Kim Decl.”), ¶ 4; Exhibit B – a copy of the Objection.)

Therefore, Defendant had 60 days from April 13, 2023, which was June 12, 2023, to file the instant motion. (See Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1032 [“‘[T]he 60-day period during which a motion to compel must be filed, begins to run when the deponent serves objections on the party. At the time the objections are served, the record of deposition is complete.’ [Citation.] ‘If [a party is] not satisfied with [the nonparty’s] production of documents from its initial request, the time to file a motion to compel was within 60 days of ... the date on which [the nonparty] served its objections ….’ [Citation]”].)

Defendant argues that the parties agreed to extensions. (Motion, Kim Decl., ¶¶ 8-12.)

However, the Court has not found (and Defendant has not cited) any authority holding that the parties can extend the 60-day deadline. Code of Civil Procedure section 1010.6, subdivision (a)(3)(B) extends by two court days “any right or duty to do any act or make any response within any period or on a date certain after the service of the document … by electronic means ….” However, even if that statute applied here, Defendant filed the instant motion on Friday, June 16, 2023, more than two court days after the deadline on Monday, June 12, 2023.

Even if the motion were timely, Defendant has not shown it properly served Sunbelt with the deposition subpoena.

“Any person may serve the subpoena by personal delivery of a copy of it as follows: ¶ (1) If the deponent is a natural person, to that person. ¶ (2) If the deponent is an organization, to any officer, director, custodian of records, or to any agent or employee authorized by the organization to accept service of a subpoena.” (Code Civ. Proc., § 2020.220, subd. (b).)

“Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service: ¶ (1) Personal attendance and testimony, if the subpoena so specifies. ¶ (2) Any specified production, inspection, testing, and sampling.” (Code Civ. Proc., § 2020.220, subd. (c).)

Here, Plaintiff argues in its opposition that there is no proof that Defendant personally served Sunbelt with the deposition subpoena. (Opposition, p. 5:16-22.)

In reply, Defendant does not deny that it did not personally serve Sunbelt with the deposition subpoena. Instead, it argues: “Plaintiff’s contention regarding improper service is disingenuous as Plaintiff's counsel and defense counsel met and conferred numerous times regarding the subpoena and Plaintiff's counsel never objected based on improper service.” (Opposition, p. 4:24-26.)

However, as shown above, the Code of Civil Procedure requires personal service of the deposition subpoena. Otherwise, the subpoena is not “effective” in requiring Sunbelt to produce the requested records. The fact that the parties met and conferred does not solve the issue regarding whether Defendant properly served Sunbelt with the deposition subpoena as required by the relevant statute.

Therefore, the lack of proper service of the deposition subpoena is grounds for denying the motion.

California Rules of Court, rule 3.1346, requires: “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.”

Here, the Court notes there is no proof of personal service of the moving papers on Sunbelt. According to the proof of service attached to the moving papers, Defendant served Sunbelt via mail. (See Motion, the second to the last page [presenting a list of those served with the moving papers and stating that Sunbelt was served through mail].) However, there is no evidence that Sunbelt agreed to accept service through mail.

Defendant California Automobile Insurance Company, Inc.’s (erroneously sued as Mercury Insurance Services) Motion to Enforce Deposition Subpoena on Sunbelt Realty Services is DENIED.

Hon. Daniel M. Crowley

Judge of the Superior Court