Judge Daniel M. Crowley, Case Number: 24STCP03761, Date: 2025-03-17 Tentative Ruling

Petitioner Roy Arce’s unopposed petition to issue an order enforcing the subpoena issued pursuant to the Interstate and International Depositions and Discovery Act and served upon Third Party Witness Antonio Perez, Aka Tony Perez, to order Perez to appear and answer questions at the deposition is granted. Perez is ordered to appear and answer questions at the deposition within 20 days.

Petitioner Roy Arce (“Arce”) (“Petitioner”) moves unopposed to issue an order enforcing the subpoena issued pursuant to the Interstate and International Depositions and Discovery Act and served upon Third Party Witness Antonio Perez, Aka Tony Perez (“Perez”) to appear and answer questions at the deposition. (Notice Petition, pg. 1; C.C.P. §§2023.010, 2020.240, 2025.480, 2029.600, et seq.)

Petitioner has an open action in the Circuit Court of The State of Oregon for the County of Multnomah, Roy Arce v. PONO Security, dba DWR Security, LLC, Multnomah County Circuit Court Case No. 23CV36438. Trial of the matter was, at the time of Petitioner’s petition, scheduled for January 27, 2025.[1]

Perez was a supervisor and coworker of Petitioner, and Perez has firsthand knowledge critical to Petitioner’s case. Petitioner subpoenaed Perez to appear for his deposition in Torrance, California, to which no one objected to. However, Perez failed to appear for his deposition.

Petitioner filed the instant petition on November 19, 2024. As of the date of this hearing no opposition has been filed.

(d) A subpoena issued under this section shall satisfy all of the following conditions:

(2) It shall contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

(3) It shall bear the caption and case number of the out-of-state case to which it relates.

(4) It shall state the name of the superior court of the county in which the discovery is to be conducted.

(5) It shall be on a form prescribed by the Judicial Council pursuant to Section 2029.390.

As a preliminary matter, Petitioner complied with the requirements of C.C.P. §2029.350(d) by serving Perez with a properly issued Interstate and International Depositions and Discovery Act (“IIDDA”) form on Cal. Judicial Council Form SUBP-045. (Decl. of Mueller ¶5, Exh. A.) Petitioner confirmed that Perez had received the subpoena. (Decl. of Mueller ¶6.) No one objected to the deposition. (Decl. of Mueller ¶7.) However, Perez failed to appear for the deposition. (Decl. of Mueller ¶8, Exh. C.) As such, pursuant to C.C.P. §2029.600, Petitioner is entitled to an order compelling Perez’s testimony. Accordingly, Perez is ordered to appear for the deposition within 20 days of this ruling.

Petitioner requests monetary sanctions against Perez. However, Petitioner’s notice of Petition fails to provide the amount of monetary sanctions, which is insufficient to provide Perez with notice of the sanctions sought by Petitioner. C.C.P. §2023.040 provides, “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (C.C.P. §2023.040, emphasis added.) Accordingly, Petitioner’s request for monetary sanctions is denied.

In light of the fact that the Court denies Petitioner’s request for monetary sanctions, the Court also denies Petitioner’s request for contempt sanctions. Here, Petitioner has not demonstrated that a lesser sanction than contempt would be more effective to ensure Perez’s compliance. (See Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246 [“The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the detriment to the propounding party, and the number of formal and informal attempts to obtain discovery.”]; Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516 [“If a lesser sanction fails to curb abuse, a greater sanction is warranted.”].) Accordingly, Petitioner’s request for a contempt order is denied.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Petitioner’s motion indicates trial was scheduled for January 27, 2024. However, Petitioner’s motion was filed on November 19, 2024; indicating that the trial was “currently scheduled” for a date that already elapsed at the time of filing does not make sense. The Court believes the year 2024 was written in error and Petitioner intended to write 2025.