Judge Kerry Bensinger, Case 20STCV22361 2023-01-25 Tentative Ruling

On June 15, 2020, plaintiff Margarita Reyes (“Plaintiff”) filed this premises liability action against defendant In-N-Out Burgers (“Defendant”). Trial is currently scheduled for March 20, 2023.

On September 15, 2022, Defendant filed the instant motions to compel the depositions of non-parties Jose Alejandro Heredia Lopez, Rosa Corona, and Irma Magallon Cardenas. The motions are unopposed.

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.)

Service of a deposition subpoena must provide 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).) Any person may serve the subpoena by personal delivery of a copy of it as follows: If the deponent is a natural person, to that person. (Code Civ. Proc., § 2020.220, subd. (b).) 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).)

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information . . . at the taking of a deposition, the court, upon motion reasonably made by [any party], 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.” (Code Civ. Proc. § 1987.1.)

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.)

Here, the Court finds that the subpoenas have not been served properly. Non-parties must be personally served with both the deposition subpoena and the motion to compel compliance with the subpoena. Defendant represents that service was made upon Plaintiff’s counsel who accepted service. Defendant provides emails from Plaintiff’s counsel agreeing to serve them. However, nothing in the code section allows for service this way. The code requires personal service for a non-party individual absent a showing the non-parties authorized Plaintiff’s counsel to accept service for them. Further, the motions were not personally served on the non-parties or showing that the non-parties authorized counsel to accept service for them.

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.

Hon. Kerry Bensinger

Judge of the Superior Court