Judge Jill Feeney, Case 20STCV02388 2023-04-14 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

This action was commenced on January 21, 2020. This is action is based on a car accident that occurred on May 14, 2019. Plaintiffs to this action are Hugo Rodgriguez-Benitez and Angel Alejandro Rodriguez and the defendants are Kris Kim and BNA Textile, Inc.

Defendant seeks to compel Q&A Seven Fashion and Lisa Chimelis to comply with the deposition subpoenas served on December 19, 2022. Defendant argues that the depositions are necessary for Defendant to investigate Plaintiff’s loss of earnings claim.

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.¿ (Code Civ. Proc., § 2020.010.)¿ A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.¿ (Code Civ. Proc., § 2020.020.)¿

A service of a deposition subpoena shall be affected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.¿ (Code Civ. Proc., § 2020.220, subd. (a).)¿ Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.¿ (Code Civ. Proc., § 2020.220, subd. (c).)¿ A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.¿ (Code Civ. Proc., § 2020.240.) A motion to compel compliance with a deposition subpoena must be made within 60 days after completion of the deposition record, the date objections are served, or the date specified for production. (Code Civ. Proc., §2025.480, subd., (b); Board of Registered Nursing v. Sup.Ct. (Johnson & Johnson) (2021) 59 CA5th 1011, 1032-1033.)¿

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.)¿

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, 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 any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, 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. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

California Code of Civil Procedure section 1987.2, subdivision (a) states, in relevant part, “. . . in making an order pursuant to motion made . . . under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds 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.

Defendant seeks orders compelling Q&A Seven Fashion and Lisa Chimelis to comply with the deposition subpoenas served on December 19, 2022. These motions were served on Q&A Seven Fashion and Chimelis via personal service as required by Code Civ. Proc., section 2020.220, subd. (b) and (c). The motions were also made within 60 days of the completion of the deposition record.

Defendant’s counsel testifies that on December 19, 2022, he served a notice of deposition, deposition subpoena, a notice to consumer, and a certificate of compliance on Chimelis and Q&A Seven Fashion. (Mendoza Decl. (Chimelis motion), ¶5.) Defendant originally confirmed Chimelis’ deposition for January 20, 2023. (Id., ¶6.) However, after the deposition began, Chimelis emailed that she could not attend due to an urgent work project. (Id.) Defendant took a certificate of nonappearance, (Id., ¶7.)

The deposition of Q&A Seven Fashion’s Person Most Knowledgeable (“PMK”) was set for January 19, 2023. (Q&A Seven Fashion Motion, Exh. B.) Q&A Seven Fashion failed to appear on that date and Defendant obtained a certificate of non-appearance. (Mendoza Decl. (Q&A Seven Fashion Motion), ¶7.)

With respect to sanctions, Code Civ. Proc., section 1987.2, subd. (a) provides that sanctions may be imposed at the court’s discretion if the court finds 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. Here, Defendant’s motions were granted and they were not opposed. Therefore, sanctions are denied.