Judge: Jill Feeney, Case: 22STCV16867, Date: 2022-09-07 Tentative Ruling
Case Number: 22STCV16867 Hearing Date: September 7, 2022 Dept: 30
Department 30, Spring Street Courthouse
September 7, 2022
22STCV16867
Motion to Compel Compliance with Deposition Subpoena filed by Petitioner Mercury Insurance
DECISION
The motion is continued so that Petitioner may file proof of the Court’s jurisdiction in this matter as discussed below.
The parties are ordered to appear on the date of the hearing to set a continued hearing date.
Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.
Background
On May 20, 2022, Petitioner Mercury Insurance filed its motion to commence and enforce discovery in an underinsured motorist bodily injury claim pursuant to Cal. Ins. Code section 11580.2(f).
On June 27, 2022, Petitioner filed the instant Motion to Compel Compliance with Deposition Subpoena and Request for Monetary Sanctions.
Summary
Moving Arguments
Petitioner argues that the custodian of records for Dr. Siamak Etehad, medical provider for Respondent Demetri Yagdjis, failed to comply with the Petitioner’s deposition subpoena by failing to appear and produce the documents specified in the subpoena.
Opposing Arguments
None filed.
Legal Standard
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 . . . .”
California Rules of Court, rule 3.1348, subdivision (a) states: “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”
Discussion
Upon review of the Court’s file, the Court finds that it does not appear to have jurisdiction over Respondent at this time.
Petitioner commenced this action on May 20, 2022 by filing a petition to commence and enforce discovery pursuant to Insurance Code section 11580.2(f). Since this is a petition, Petitioner was required to serve it on Respondent in the manner required by CCP section 1290.4. (See Porter v. Golden Eagle Ins. Co. (1996) 43 Cal.App.4th 1282, 1289 (stating the statutory scheme for arbitration provided by CCP sections 1280 et seq. encompasses arbitration compelled by statue, and specifically, arbitration under Insurance Code section 11580.2).) Under CCP section 1290.4, a copy of the petition and a written notice of the time and place of the hearing and any other papers upon which the petition is based must be served in the manner provided in the arbitration agreement for the service of such petition and notice. (Code Civ. Proc., § 1290.4(a).) If the arbitration agreement does not provide the manner for service, then CCP section 1290.4 requires that service be made in the manner provided by law for the service of summons in an action. (Id., § 1290.4(b).)
Petitioner filed this petition under Insurance Code section 11580.2, which does not provide any manner for service. To this extent, Petitioner was required by CCP section 1290.4(b) to serve the petition on Respondent in the manner provided for the service of summons.
Here, the proof of service filed on May 20, 2022 indicates the petition was served on Respondent through counsel by electronic transmission to Respondent’s Counsel on May 20, 2022. Service by electronic transmission is not a permitted method of serving a summons. Based on this, it appears the Court does not have jurisdiction over Respondent.
The Court notes that, apart from Insurance Code section 11580.2, service may also be made in the manner for service provided for under an arbitration agreement. The Court will thus continue these motions and set an OSC to provide Petitioner an opportunity to provide such an agreement providing for service by electronic transmission to show the Court has jurisdiction over Respondent.
