Judge: Kerry Bensinger, Case: 20STCV04631, Date: 2023-08-10 Tentative Ruling

Case Number: 20STCV04631    Hearing Date: August 10, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 10, 2023                                 TRIAL DATE:  October 9, 2023

CASE:                         Wendy Vasquez v. Miriam Susan Epstein

CASE NO.:                 20STCV04631

MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA

MOVING PARTY:               Defendant Miriam Susan Epstein

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On February 4, 2020, Plaintiff, Wendy Vasquez, filed this action against Defendant, Miriam Susan Epstein, for injuries arising from a motor vehicle incident.

            Defendant propounded discovery requests on Plaintiff.  In discovery responses, Plaintiff indicated having treated with Shahram S. Mirhashemi, M.D.  On January 3, 2023, Defendant personally served Dr. Mirhashemi with a Deposition Subpoena for Personal Appearance and Production of Documents.  Dr. Mirhashemi did not appear for the scheduled remote deposition. 

            On February 28, 2023, Defendant filed this motion for an order compelling Dr. Mirhashemi’s compliance to testify at deposition and to produce the requested documents.  Defendant seeks sanctions against Dr. Mirhashemi.  The proof of service attached to the motion shows that Dr. Mirhashemi was personally served with this motion.

            The motion is unopposed.

II.        LEGAL STANDARDS

            Any party may obtain discovery by taking in California the oral deposition of any person.  (Code Civ. Proc., § 2025.010.)  A deposition subpoena may command the attendance and the testimony of a nonparty deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.  (Code Civ. Proc., § 2020.020.)  If a nonparty deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.  (Code Civ. Proc. §§ 2024.480, 2025.480.)   

            If the nonparty deponent is a natural person, any person may serve the subpoena by personal delivery of a copy of it to that person.  (Code Civ. Proc., § 2020.220, subd. (b)(1).)  Personal service of any deposition subpoena is effective to require the personal attendance and testimony of the nonparty deponent, if the subpoena so specifies.  (Code Civ. Proc., § 2020.220, subd. (c)(1).)   

            “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.)  

            Monetary Sanctions 

            A nonparty that fails to appear pursuant to a deposition subpoena is subject to the payment of damages, in addition to the payment of $500.  (Code Civ. Proc. §§ 2020.240 and 1992.)

III.      DISCUSSION

            Defendant personally served Dr. Mirhashemi with a subpoena and a notice of deposition on January 3, 2023.  The deposition was scheduled for February 2, 2023.  However, despite Defendant’s efforts to confirm Dr. Mirhashemi’s attendance at the deposition, Dr. Mirhashemi failed to interpose any objections or to appear.  (See Declaration of Leon A. Victor.) 

            Accordingly, the motion to compel Dr. Mirhashemi’s compliance with the deposition subpoena is GRANTED.

            Monetary Sanctions

            Defendant requests sanctions against Dr. Mirhashemi.  Pursuant to Section 2025.450, subdivision (g)(1), the Court is obligated to impose sanctions.   Accordingly, the Court imposes sanctions of $735, consisting of one hour at defense counsel’s hourly rate, $60 in filing fees, and $500 pursuant to Code of Civil Procedure section 1992.

IV.       CONCLUSION 

The motion is granted.  The Court orders Dr. Shahram S. Mirhashemi to appear for deposition and to produce documents responsive to the deposition subpoena within 30 days of this order.

The request for sanctions is granted.  The Court imposes $735 in sanctions against Dr. Mirhashemi.  Sanctions are to be paid within 30 days of this order.

Moving party to give notice. 

Dated:   August 10, 2023                                          ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  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.