Judge Kerry Bensinger, Case Number: 21STCV21843, Date: 2023-09-26 Tentative Ruling

Judge: Kerry Bensinger, Case: 21STCV21843, Date: 2023-09-26 Tentative Ruling

Case Number: 21STCV21843 Hearing Date: September 26, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: September 26, 2023 TRIAL DATE: March 21, 2024

CASE: Salvador Alvarado v. Lowe’s Home Centers, LLC, et al.

CASE NO.: 21STCV21843

MOTIONS TO COMPEL ATTENDANCE OF NONPARTY AT DEPOSITION

MOVING PARTY: Defendants Lowe’s Home Centers, LLC and Anthony Guerrera

RESPONDING PARTY: No opposition

I. BACKGROUND

On June 11, 2021, Plaintiff, Salvador Alvarado, initiated this action against Defendants, Lowe’s Home Centers, LLC (“Lowe’s”), and Anthony Guerrera, for injuries arising from an assault and battery when Plaintiff attempted to leave a Lowe’s store.

On July 1, 2022, Defendants served subpoenas on SoCal Imaging, Inc. and Pacific MRI requesting medical records, billing records, and diagnostic imaging studies related to Plaintiff’s injuries. SoCal Imaging, Inc. and Pacific MRI each produced medical records only.

In order to obtain the remainder of the requested documents, on January 10, 2023, Defendants served the Custodians of Records for SoCal Imaging, Inc. and Pacific MRI with Deposition Subpoenas. Defendants attached a Notice of Taking Deposition of Custodian of Records and Request for Production of Documents at the Time of Deposition. To date, the Custodians of Records for SoCal Imaging, Inc. and Pacific MRI have not appeared for deposition or produced the requested documents.

On March 8, 2023, Plaintiff filed these motions to compel the Custodians of Records for SoCal Imaging, Inc. and Pacific MRI to appear at deposition and produce the requested documents. Defendants seek sanctions against the nonparty deponents.

The motions are 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.)

III. DISCUSSION

Defendants properly served SoCal Imaging, Inc. and Pacific MRI with a subpoena and a notice of deposition on January 10, 2023. The depositions were scheduled for February 15, 2023. However, the Custodians of Records for SoCal Imaging, Inc. and Pacific MRI each failed to interpose any objections or to appear. (See Rivera Decls.)

Accordingly, the motions to compel SoCal Imaging, Inc. and Pacific MRI to produce their Custodian of Records to appear for deposition and to produce documents are GRANTED.

Monetary Sanctions

Defendants seeks monetary sanctions against SoCal Imaging, Inc. and Pacific MRI. Given the Court’s disposition of the motion, sanctions are warranted.

Accordingly, sanctions are imposed against SoCal Imaging, Inc. in the sum of $350, consisting of two hours at defense counsel’s hourly rate and $60 in filing fees.

Sanctions are imposed against Pacific MRI in the sum of $350, consisting of two hours at defense counsel’s hourly rate and $60 in filing fees.

IV. CONCLUSION

The motions are granted. The Court orders Pacific Imaging, Inc. and Pacific MRI to produce their Custodian of Records for deposition and to produce documents requested in the subpoena within 20 days of this order.

The request for monetary sanctions is granted.

Sanctions are imposed against SoCal Imaging, Inc. in the sum of $350, consisting of two hours at defense counsel’s hourly rate and $60 in filing fees.

Sanctions are imposed against Pacific MRI in the sum of $350, consisting of two hours at defense counsel’s hourly rate and $60 in filing fees.

Sanctions are to be paid within 30 days of this order.

Moving party to give notice.

Dated: September 26, 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.