Judge: Jill Feeney, Case: 21STCV16587, Date: 2023-04-12 Tentative Ruling
Case Number: 21STCV16587 Hearing Date: April 12, 2023 Dept: 30
Department 30, Spring Street Courthouse
April 12, 2023
21STCV16587
Motion to Compel Compliance with Deposition Subpoena Served on T-Mobile filed by Defendant
DECISION
The motion is denied.
Moving party to provide notice.
Background
This is an action for premises liability and negligence arising from a slip and fall incident which took place in July 2019. Plaintiff Porfilio Dominguez filed his Complaint against Costco Wholesale Membership, Inc. on May 3, 2021.
On May 10, 2021, Plaintiff filed a First Amended Complaint.
Defendant filed the instant motion to compel compliance with deposition subpoena on November 29, 2022.
Summary
Moving Arguments
Defendant seeks orders compelling T-Mobile to comply with the deposition subpoena Defendant issued on August 9, 2022.
Opposing Arguments
None.
Legal Standard
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.”
“[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 . . . .”
Discussion
Defendant seeks orders compelling Plaintiff’s cell phone carrier, T-Mobile, to produce Plaintiff’s phone records showing the identities of witnesses Plaintiff spoke to in the minutes and hours after his fall.
Defendant originally served its subpoena on T-Mobile on August 9, 2022 requesting “any and all phone records, regarding phone number 818-339-4296., pertaining to” Plaintiff. (Motion, Exh. C.) On September 8, 2022, T-Mobile responded that it would not comply with the subpoena unless it received a signed authorization from Plaintiff or a court order. (Moulin Decl., ¶12.)
Defendant’s evidence shows that T-Mobile failed to comply with the subpoena issued August 9, 2022 with a production date of September 13, 2022. Defendant served T-Mobile via personal service as required by Code Civ. Proc., section 2020.220, subd. (b) and (c). The date specified for production on Defendant’s subpoena was September 13, 2022. The 60-day deadline for Defendant to make a motion to compel compliance with its subpoena was November 12, 2022. Defendant filed this motion on November 29, 2022. Thus, Defendant’s motion is not timely.
Because Defendant failed to make its motion within 60 days of the date specified for production on its subpoena, the motion is denied.
