Judge Kerry Bensinger, Case Number: 20STCV39439, Date: 2023-09-07 Tentative Ruling

On October 13, 20220 Plaintiff, David Martinez, initiated this action against Defendants, Lyft, Inc., Joshua David Mac Kinney (“Mac Kinney”), and City of Calabasas, for injuries arising from a motor vehicle collision and a dangerous condition on public property. Plaintiff alleges that Mac Kinney was driving while in the course and scope of his employment with Lyft when Mac Kinney failed to yield the right of way to Plaintiff and collided with Plaintiff. Plaintiff’s friend, Adam Baron (“Baron”), is an alleged witness to the collision.

On February 1, 2023, Mac Kinney (hereafter, “Defendant”) served Baron with a deposition subpoena and a notice of deposition for February 16, 2023. Baron did not appear. Thereafter, counsel for Defendant contacted Baron several times to obtain his voluntary participation in the deposition. Baron refused to appear for deposition unless he was guaranteed a percentage of the settlement. Baron also indicated he never received the subpoena.

On July 17, 2023, Defendant filed this motion for an order compelling Baron to testify at deposition. Defendant does not seek sanctions against Baron.

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.)

Defendant states Baron was served with a deposition subpoena on February 1, 2023. However, the proof of service attached to the deposition subpoena does not show Baron was served with the subpoena. (See Declaration of Jonathan R. Gerber, Ex. A.) Indeed, the proof of service form has not been completed. Although Defendant has submitted evidence to show Baron is unwilling to voluntarily appear for deposition (see Gerber Decl. Exs. D-L), the Court cannot find Baron was properly served with a deposition subpoena in the first instance.[1]

Based on the foregoing, the Court will hear from Defendant whether he has proof of service showing Baron was served with the deposition subpoena on February 1, 2023. If so, the Court will direct Defendant to file the proof of service with the Court and continue the motion for a short period of time. If not, the Court will continue the motion to a date in November 2023 to allow Defendant to effectuate service of the deposition subpoena upon Baron and, if necessary, to proceed with this motion.

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.

[1] This tends to support Baron’s representation in email correspondence with defense counsel that he was not served with the deposition subpoena. (See Gerber Decl., Ex. J.)