Judge Kerry Bensinger, Case Number: 21STCV09253, Date: 2023-08-10 Tentative Ruling

On March 9, 2021, Plaintiff, Leslie Alvarez, filed this action against Defendants, Twelfth Place, LLC (“Twelfth Place”), and Concord Real Estate Services, Inc., for injuries arising from a slip and fall on Defendants’ premises. At the time of the incident, Raul Reyes was employed by Defendant Twelfth Place, LLC.

On January 28, 2022, Plaintiff personally served Mr. Reyes with a Deposition Subpoena for Personal Appearance and Production of Documents and Things. Mr. Reyes did not object to the subpoena or appear for the scheduled deposition. Thereafter, Plaintiff attempted to reschedule the deposition with Mr. Reyes. However, Mr. Reyes indicated in text messages that he did not have time. To date, Mr. Reyes has yet to appear for deposition.

On June 27, 2023, Plaintiff filed this motion for an order compelling Mr. Reyes’s appearance at deposition. Plaintiff seeks sanctions against Mr. Reyes.

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.)

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.)

Plaintiff’s motion is procedurally defective. “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 proof of service attached to the motion shows that Mr. Reyes was served with this motion by mail service only. There is no indication that Mr. Reyes has agreed to accept service by mail. Notwithstanding this defect, the Court considers the merits of the motion.

Plaintiff personally served Mr. Reyes with a subpoena and a notice of deposition on January 28, 2022. However, despite Plaintiff’s efforts, Mr. Reyes has yet to appear for deposition. (See Declaration of Christine V. Reyes.)

Twelfth Place argues that the motion should be denied because Plaintiff failed to compel Mr. Reyes deposition within 60 days of the date set for the deposition or production of records. For this proposition, Twelfth Place mistakenly relies on Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123 and Board of Registered Nursing v. Superior Court of Orange County (20210 59 Cal.App.5th 1011. Both cases are inapposite. In each case, the Court of Appeal held that the 60-day time limit begins to run upon the serving of objections to a deposition subpoena. No objections to the deposition subpoena have been asserted here.

However, given the procedural defects noted above, the Court intends to continue the motion to allow Plaintiff to personally serve Mr. Reyes.

Twelfth Place next argues that the request sanctions should be denied because Plaintiff did not meet and confer in good faith. Twelfth Place points to the undisputed fact that Plaintiff subpoenaed Mr. Reyes using English language documents and sent Mr. Reyes a meet and confer letter in English despite knowing that Mr. Reyes is not fluent in English. Twelfth Place further represents that Mr. Reyes was or is an employee of Twelfth Place; as such, Twelfth Place could have and would have assisted in coordinating Mr. Reyes’s deposition if Plaintiff had only asked.^{^[1]}

The Court agrees. However, given the procedural defect with this motion, the Court does not reach the issue of sanctions at this juncture.

The motion is CONTINUED to September 11, 2023 at 1:30 PM in Department 27 of the Spring Street Courthouse to allow Plaintiff to personally serve nonparty Raul Reyes with this motion. Plaintiff is to file proof of service no later than 5 court days before the hearing.

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] It is unclear whether Mr. Reyes is currently employed by Twelfth Place. If so, the Court unclear why Plaintiff choose not proceed by way of Code of Civil Procedure sections 2025.280(a) and 2025.450(a). The Court will hear from counsel.