Judge: John C. Gastelum, Case: 22-01239960, Date: 2023-06-13 Tentative Ruling

(1) Motion to Compel Production (2) CMC

Tentative Ruling:  Plaintiffs Perla Rodriguez, Ariel Herrera, and Michael Herrera’s (“Plaintiffs”) Motion for Further Production of Subpoena Directed to Allure Pest Management, Inc. is GRANTED IN PART. 

In their further briefing, Plaintiffs establish that the subpoena at issue was personally served on Non-Party Allure Pest Management, Inc. on October 24, 2022.  The court finds the process server’s mistake in writing Santa Ana, CA 92701 rather than Rancho Santa Margarita, CA 92688 constitutes scrivener’s error.  Thus, the court finds service of the subpoena proper.

Next, Plaintiffs’ further briefing fails to establish that service of the Motion was proper pursuant to California Rules of Court, rule 3.1346, which requires a nonparty deponent be personally served with the Motion.  Here, Allure Pest Management, Inc. was served with the Motion by mail.  However, the court is persuaded that Allure Pest Management, Inc. waived notice by timely filing an opposition and appearing for the hearing and because it has not suffered prejudice because the Motion was served by mail rather than personal service.

“[A] party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.”  (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288 [citing Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930].)  “[I]f the party appears at the appropriate hearing and opposes the motion on the merits—but without making any request for a continuance or demonstrating prejudice from the defective notice, the issue is waived.”  (Id., 1289.)

Non-Party Allure Pest Management, Inc. does not provide legal authority arguing that waiver did not occur.

Accordingly, the court will analyze the Motion on its merits.

In evaluating the Motion in the merits, the court rules the names of the residents shall remain redacted.  The Motion is DENIED as to this request.

However, the court finds Plaintiffs are entitled to the unit numbers and the documents shall be produced with the unit numbers unredacted.  The treatments required and executed in the units directly adjoining and in close proximity to Plaintiffs’ unit are relevant to the issues in this case. The Motion is GRANTED as to this request.

The parties’ requests for sanctions are DENIED.

Plaintiffs to give notice.