Judge: Frank M. Tavelman, Case: 22BBCV00346, Date: 2023-05-19 Tentative Ruling

REQUESTING ORAL ARGUMENT PER CRC 3.1308

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Case Number: 22BBCV00346    Hearing Date: March 1, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO QUASH DEPOSITION SUBPOENA

ALLEGATIONS: 

Anthony Bouyer ("Plaintiff") filed suit against Verdugo, Inc., a California Corporation ("Defendant"), alleging that he is substantially limited in performing one or more major life activities. Plaintiff visited Defendant’s business establishment to purchase items and to verify whether Defendant is complying with the California Unruh Civil Rights Act (“UCRA”) and the Americans with Disabilities Act (“ADA”). Plaintiff alleges that Defendant’s business violated ADA guidelines. On May 17, 2022, Plaintiff filed a Complaint, alleging a single cause of action for Violation of the UCRA, California Civil Code, § 51 et seq.

HISTORY: 

Plaintiff then filed and served the subject Motion to Quash with this Court with an original hearing date of March 22, 2024, now set for hearing by this Court on March 1, 2024.  On February 5, 2024, at the hearing on Defendant's Motion to Compel Plaintiffs deposition, this Court advanced the hearing on the subject Motion to Quash and set it for March 5 1, 2024. Both parties were present at this hearing.

REQUEST FOR CURRENT RELIEF

Plaintiff asserts that Defendant improperly served deposition subpoenas on Plaintiff’s physical therapists seeking business records at a deposition.  The first subpoena on Taylor Isaacs was served on January 24, 2024.  Plaintiff argues that Defendant failed to comply with clear statutory requirements that a Notice to Consumer be timely served to afford Plaintiff notice and an opportunity to object and oppose and other rules pertaining to subpoenas.   Defendant sought:

• Defendant seeks Plaintiffs medical records in addition to the witness's testimony but no Notice to Consumer document was ever served (CCP l 985.3(a)(I ));

• There was no Notice of Deposition served on counsel with the Subpoena as required by the code;

• the Subpoena was not completely filled out and contained internally inconsistent information;

• there is no evidence the Subpoena was ever served on the witness which is required;

• there is no information about how to attend the deposition even if Plaintiff wanted to attend.

• The Subpoena was untimely because it was served on January 24, 2024 for the requested deposition date of January 31, 2024.

Defendant then served on the physical therapist Jon Gorospe of Core Centers another subpoena, this one not requesting documents.  This second subpoena was served February 1, 2024.

ANALYSIS: 

I.                LEGAL STANDARD 

Failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. CRC Rule 8.54(c).  

CCP § 1987.2 permits a court in its discretion to award reasonable expenses in making opposing motion a motion if the court finds that the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.

II.              MERITS

The Motion to Quash being unopposed, pursuant to CRC Rule 8.54(c) the Court finds that the Plaintiff’s motion does not appear to lack merit. Generally, a court construes a party's failure to oppose a motion as a concession on the merits. D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 (where nonmoving party fails to oppose a ground for a motion "it is assumed that [nonmoving party] concedes" that ground).)

The original motion pertained only to the subpoena on Taylor Issacs.  The second subpoena was not part of the noticed motion to which Defendant did not file an opposition.   As such, CRC Rule 8.54(c) would not be applicable to that motion, nor was Defendant noticed that the subpoena was being challenged.  While the Plaintiff argues some important points in seeking in its notice of no opposition, nonetheless the Court believes that addressing that subpoena without a properly noticed motion is not an appropriate action by the Court.  However, the Court, is willing to setting the matter for an Informal Discovery Conference to address the issue in an effort to facilitate discovery and mitigate litigation costs.

The Court does not find that Defense has made a sufficient showing that the subpoena was oppressive to justify sanctions.   Furthermore, given that Defense did not oppose the Motion to Quash the Court does not find they acted in bad faith nor without substantial justification.   As such, the Court declines to grant sanctions.

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RULING:

In the event a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Anthony Bouyer’s Motion to Quash subpoenas came on regularly for hearing with appearances/submissions as noted in the minute order for said hearing, and then and there rules: 

THE MOTION QUASH DEPOSITION SUBPOENAS ON TAYLOR ISAACS DATED JANUARY 24, 2024  IS GRANTED.

THE REQUEST TO QUASH THE DEPOSITION SUBPOENA ON JON GOROSPE OF CORE CENTERS DATED FEBRUARY 1, 2024 IS DENIED WITHOUT PREJUDICE AS INSUFFICIENTLY NOTICED.

THE REQUEST FOR SANCTIONS IS DENIED.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF IS TO GIVE NOTICE. 

IT IS SO ORDERED. 

DATE:  March 1, 2024

                                                                         F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles