Judge Jill Feeney, Case 20STCV41214 2023-01-24 Tentative Ruling

This is an action for negligence arising from an accident where Defendant’s tools fell on Plaintiff in October 2018. Plaintiff Christopher Fox filed his Complaint against Defendant Dave C. Inc. on October 27, 2020.

Defendant seeks to compel Plaintiff’s psychotherapist, Edward Gonzalez, to appear for deposition and produce documents. Defendant originally subpoenaed the documents on January 20, 2022 and records were never produced. Defendant then noticed a deposition on July 26, 2022 and Gonzalez failed to appear.

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 “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.”

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” (Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-583.)

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 . . . .”

Defendant originally subpoenaed records related to Plaintiff’s psychotherapy treatment with Gonzalez on January 20, 2022 with responses due on February 21, 2022. (Ryan Decl., ¶¶11-12.) The subpoena was personally served on Gonzalez’s custodian of records. (Motion, Exh. A.) Gonzalez failed to produce the records. (Ryan Decl., ¶12.) Defendant attempted to contact Gonzalez between February and July 2022. (Id., ¶¶13-15.) After Gonzalez failed to respond to Defendant’s inquiries, Defendant noticed Gonzalez’s deposition subpoena on July 26, 2022, setting a deposition date for August 17, 2022. (Id., ¶¶16-17.) The deposition notice was personally served on Gonzalez’s custodian of records and served on Plaintiff via electronic service. (Motion, Exh. E.) Gonzalez failed to appear at his deposition. (Id., ¶18.) Defendant took a statement of nonappearance which was certified on August 23, 2022. (Motion, Exh. F.)

Defendant’s evidence shows that Gonzalez failed to appear for his properly noticed deposition on July 26, 2022. Plaintiff’s records related to psychotherapy treatment are discoverable because his Complaint seeks damages for anxiety and emotional distress. Gonzalez’s custodian of records was personally served as required by Code Civ. Proc., section 2020.220, subd. (b) and (c). Plaintiff was also served with notice of the subpoena as required under Code Civ. Proc., section 2020.510, subd. (c). Defendant also makes this motion within 60 days after the deposition record was completed as required by Code Civ. Proc., section 2025.48-, subd. (b). However, Defendant’s proof of service filed September 15, 2022 shows that he served Gonzalez with notice of this motion via mail. Gonzalez is a non-party and must be served via personal service. There is no evidence that Gonzalez agreed to service by mail. This motion is continued to allow Defendant to provide proof of personal service or proof that Gonzalez agreed to service by mail.