Judge: Elaine Lu, Case: 21STCV29683, Date: 2023-04-17 Tentative Ruling

Case Number: 21STCV29683    Hearing Date: April 17, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

            On August 11, 2021, Plaintiff Sharmel Jackson (“Plaintiff”) filed the instant employment discrimination action against Defendant Kedren Community Health Center, Inc. (“Defendant”).  On March 3, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendant.  The FAC asserts fourteen causes of action for (1) Failure to Pay Wages, (2) Failure to Pay Overtime Wages, (3) Failure to Pay Wages Due Upon Termination, (4) Failure to Issue Accurate Itemized Wage Statements, (5) Disability Discrimination, (6) Disability Discrimination – Failure to Provide Reasonable Accommodation, (7) Disability Discrimination – Failure to Engage in the Interactive Process, (8) Retaliation, (9) Failure to Prevent Harassment, Discrimination, and Retaliation, (10) Constructive Termination, (11) Intentional Infliction of Emotional Distress, (12) Whistleblower Action, (13) Failure to Reimburse Required Business Expenses, and (14) Unfair Business Practices.

            On August 17, 2022, Plaintiff filed the instant motion to compel third party Phyllis Agu to comply with a deposition subpoena.  No opposition or reply has been filed.

Legal Standard

            “Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action.  The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”  (Code Civ. Proc. § 2025.010.) 

            Two separate sections provide a basis to compel the deposition of a nonparty witness pursuant to a subpoena.  First, a party may seek an order compelling the deposition under Code of Civil Procedure section 1987.1, which provides that “[i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.”  (Id., Italics added].)  Second, a party may seek an order compelling the deposition pursuant to Code of Civil Procedure section 2025.480, which provides that “[i]f 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.”  (Id.)

Discussion

            Plaintiff seeks an order compelling non-party Agu to appear pursuant to a deposition subpoena pursuant to Code of Civil Procedure sections 1987.1, and 2025.480.

Improper Service of the Deposition Subpoena

            “‘Where [a] witness whose deposition is sought is not a party (or a “party-affiliated” witness), a subpoena must be served to compel his or her attendance, testimony, or production of documents.’ [Citation.]”  (Terry v. SLICO (2009) 175 Cal.App.4th 352, 357.)  “Any person may serve the [deposition] 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.”  (CCP § 2020.220(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.”  (CCP § 2020.220(c)(1).)

            The statute is clear that a deposition subpoena must be served by personal delivery on non-party witnesses and that only personal service is effective in requiring a deponent who is a resident of California at the time of service to comply with the subpoena.  Consistent with the statute, the mandatory form for a subpoena SUBP-015 on page two specifically requires the party requesting a deposition subpoena to fill out a proof of personal service. (Cal. Rules of Court Rule 1.31(b).)

            Here, Plaintiff did not comply with this requirement.  Agu is not a party nor a party – affiliated witness. Agu is a former employee of Defendant.  To require Agu’s attendance at a deposition requires proof of proper served service of the deposition subpoena.  Here, the deposition subpoena denotes that it was served electronically on July 21, 2022.  Page two of the mandatory SUBP-015 is largely blank and fails to reflect personal service.  (Levin Decl., Exh. 2.)  As Agu was not personally served, the deposition subpoena is not effective to compel Agu’s attendance at a deposition.  Accordingly, the instant motion must be denied.

Lack of Service of the Instant Motion

            “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.”  (Cal. Rules of Court, Rule 3.1346.)  According to Code of Civil Procedure section 1005(b), “[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”  (Id.)  The filing and service date is calculated by counting backward from the hearing date and excluding holidays and weekends.  (CCP §§ 12-12(c).)

            Code of Civil Procedure sections 1987.1 and 2025.480 does not include any specific provision providing for a specific manner notice.  Accordingly, under the provisions above, the instant motion must be served 16 Court days before the hearing.  (See CCP § 1005(a)(13), [“Any other proceeding under this code in which notice is required, and no other time or method is prescribed by law or by court or judge.”].)  Moreover, “[p]roof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.”  (Cal. Rules of Court, Rule 3.1300(c).)  Under California Rules of Court, Rule 3.1346, service must be made by personal service on the nonparty deponent unless specified by the nonparty deponent in the deposition record.  (Id.)

            Here, the moving papers solely identify electronic service on Counsel for Defendants on August 16, 2022.  There is no proof of service on the deponent Agu as required.  Moreover, as there is no deposition record, any service of the instant motion had to be by personal service.  Accordingly, the instant motion is also denied on this additional ground.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Sharmel Jackson’s motion to compel the deposition of non-party Phyllis Agu is DENIED WITHOUT PREJUDICE.  Plaintiff must file proof of proper service of the deposition subpoena and proof of proper service of the moving papers before refiling a motion to compel non-party Phyllis Agu’s deposition.

The Moving Party is ordered to provide notice and file proof of service of such.

DATED: April 17, 2023                                                         ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court