Judge: Frank M. Tavelman, Case: 23BBCV00757, Date: 2024-07-12 Tentative Ruling

Case Number: 23BBCV00757    Hearing Date: July 12, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Brenda Armstrong (Plaintiff) brings this action against John Doe in relation to an April 21, 2021 motor vehicle incident. Plaintiff alleges she was standing beside her parked vehicle when John Doe’s vehicle struck her vehicle and caused her severe injury. Plaintiff alleges that John Doe thereafter fled the scene and Plaintiff has been unable to ascertain his identity.

Before the Court is a motion to compel the Burbank Police Department’s (BPD) compliance with a deposition subpoena issued by Plaintiff. The subpoena seeks the police report generated in connection with the incident, as Plaintiff believes this will allow her to learn the identity of John Doe. The BPD declined to comply with the subpoena, citing Plaintiff’s failure to serve a Notice to Consumer as required by C.C.P. § 1985.3. (See Exh. C.) The BPD has rendered no opposition to this motion.

ANALYSIS: 

I.                    LEGAL STANDARD 

To require the attendance and testimony of a non-party deponent, as well as the production of any document or tangible thing for inspection and copying, the party seeking discovery must serve on that non-party deponent a deposition subpoena, pursuant C.C.P. § 2020.010, et seq. (C.C.P. §§ 2020.010(b), 2025.280(b); See also Sears, Roebuck & Co. v. National Union Fire Insurance Company of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by C.C.P. §§ 2020.010, et seq., and is primarily carried out by way of subpoena].)

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (C.C.P. § 2025.480(a).) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (C.C.P. § 2025.480(i).)

C.C.P. § 1985.3(b) requires a party issuing a subpoena shall “serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c).” State agencies are specifically included in the consumer notice requirement under C.C.P., § 1985.4. (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1036.)

II.                 MERITS

Plaintiff asks that the Court issue an order compelling the BPD to produce documents responsive to the subpoena, specifically the police report for her incident. Although notice to the consumer is usually a prerequisite for the issuance of a third-party subpoena, the Court finds good cause exists to waive this requirement.  

The statutory procedures set forth in C.C.P. §1985.3(b) are applicable to any subpoena seeking “personal information” maintained by an agency that is otherwise exempt from public disclosure. (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1036.) The term “personal information” means any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history. It includes statements made by, or attributed to, the individual. (Id.) Contrary to the common parlance, a “consumer” under this statute means any natural person. (C.C.P. § 1985.4.)

Here, Plaintiff seeks the police report made in connection with the April 21, 2021 incident from the BPD. The BPD is a public entity not otherwise exempt under C.C.P. § 1985.4 and Plaintiff seeks identifying information as to John Doe through her subpoena. As such, it appears Plaintiff’s request is one that is clearly subject to the consumer notice requirement.  C.C.P. § 1985.3(b) thus requires Plaintiff to serve a copy of the subpoena upon John Doe prior to the date of production.

However, C.C.P. § 1985.3(h) provides that “Upon good cause shown and provided that the rights of witnesses and consumers are preserved, a subpoenaing party shall be entitled to obtain an order shortening the time for service of a subpoena duces tecum or waiving the requirements of subdivision (b) where due diligence by the subpoenaing party has been shown.”

Here, the Court finds that good cause exists to waive the consumer notice requirement given the logistic impossibility of Plaintiff’s compliance. Plaintiff has demonstrated that, despite diligent search efforts, she has been unable to obtain the name and contact information of John Doe such that a proper consumer notice could be served upon him. (See Yasmeh Decl. ¶¶ 3-4.) Further, Plaintiff’s states that her attempts to obtain the police report by way of formal request have been unsuccessful. (Yasmeh Decl. ¶ 8, Exh. D.) In short, Plaintiff has demonstrated that despite her best efforts she has been unable to serve John Doe with consumer notice or otherwise obtain the information she needs. As such, the Court waives the requirements of C.C.P. § 1985.3(b).

The Court, having waived the requirements of C.C.P. § 1985.3(b), finds Plaintiff’s motion meritorious. Plaintiff appropriately complied with the remaining procedures for service of a subpoena upon a third party under C.C.P. § 2025.240. (See Exh. B.) In addition, the Court construes BPD’s lack of opposition to this motion as acquiesce to its merits. (See Cal. Rules of Court, Rule 8.54(c).)

Accordingly, Plaintiff’s motion to compel compliance with her deposition subpoena served on the Burbank Police Department is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or 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 

Brenda Armstrong’s Motion to Compel Compliance with Deposition Subpoena came on regularly for hearing on July 12, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE COURT FINDS GOOD CAUSE TO WAIVE THE REQUIREMENTS OF C.C.P. § 1985.3(b).  THE MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA IS GRANTED.  

COMPLIANCE TO OCCUR WITHIN 30 DAYS.

CASE MANAGEMENT CONFERENCE AND OSC RE PROOF OF SERVICE ARE ADVANCED AND CONTINUED TO NOVEMBER 5, 2024, AT 9:00 AM.

PLAINTIFF TO PROVIDE NOTICE.

IT IS SO ORDERED. 

DATE:  July 12, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles