Judge: Latrice A. G. Byrdsong, Case: 23STLC06265, Date: 2024-05-15 Tentative Ruling

Case Number: 23STLC06265    Hearing Date: May 15, 2024    Dept: 25

Hearing Date:                         Wednesday, May 15, 2024

Case Name:                             ZHIWEI CHEN v. JOHN DOE 1-5, et al.

Case No.:                                23STLC06265

Motion:                                   MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION (SET ONE)

Moving Party:                         Plaintiff Zhiwei Chen (in pro per)

Responding Party:                   None as of May 13, 2024

Notice:                                    OK

 

 

Tentative Ruling:                    Plaintiff Chen’s Motion to Compel Responses to Requests for Production (Set One); Request for Monetary Sanctions is DENIED. 

 

 

BACKGROUND

 

            Plaintiff alleges Defendants John Does 1-5 represented to Plaintiff that they had a business license and operated an international logistics and currency exchange.  Plaintiff alleges Defendant agreed to transport Plaintiff’s goods to the United States.  Plaintiff alleges Defendants in reality did not have any license and Plaintiff’s goods were not transported to the United States. The ‘statement of facts’ portion of Plaintiff’s complaint identifies “Seth Inc” as providing services, but “Seth Inc” is not identified as a named defendant. 

 

            On September 29, 2023, Plaintiff filed a complaint against “John Does 1-5” alleging (1) fraud; (2) fraud; and (3) common counts. 

           

MOVING PARTY POSITION

 

            Plaintiff asks that the Court order non-party IDD (Int’l) Investment, Inc. (“IDD”) to serve responses to the RFPs contained in the deposition subpoena served on February 29, 2024.  Plaintiff asks that the Court order IDD to serve responses pursuant to CCP §2025.450.  Plaintiff asks that the Court impose monetary sanctions.       

 

OPPOSITION

 

            None as of May 13, 2024. 

 

REPLY

 

            None as of May 13, 2024. 

           

ANALYSIS

 

            “Any party may serve on any person a deposition subpoena duces tecum requiring the person served to mail copies of documents, books, or records to the party's counsel at a specified address, along with an affidavit complying with Section 1561 of the Evidence Code.”  (CCP §94(c).)  There is no numeric limit placed on the number of deposition subpoenas a party may serve in limited jurisdiction. 

 

            Plaintiff moves to compel responses to Requests for Production from non-party IDD (Int’l) Investment, Inc. (“IDD”) pursuant to CCP §2025.450.  IDD (Int’l) Investment is a nonparty.  Plaintiff served IDD with a Deposition Subpoena on February 29, 2024.  (Chen Dec., Ex. B.)  IDD responded with a letter indicating that it did not have any lease agreement with Plaintiff.  (Id.) 

 

            Plaintiff’s Motion to Compel Responses to RFPs is denied for the following reasons:

 

(1) Motion improperly titled and cites to incorrect authority

 

Plaintiff’s motion is entitled “Motion to Compel Responses to RFPs” and cites to CCP §2025.450 as authority to compel.  Plaintiff’s motion is in fact a motion to compel compliance with deposition subpoena. 

 

The authority to compel compliance with a subpoena is located at CCP §1987.1 and to compel further response to a subpoena is CCP §2025.480.  CCP §2025.450 does not apply to subpoenas and only applies to deposition notices served on parties or their affiliates. 

 

CCP §1987.1(a)

 

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), 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. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

 

CCP §2025.480(a)

 

If a 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.  (CCP §2025.480(a).)

 

CCP §2025.450(a)

 

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

 

(2)  Failure to establish proper service of deposition subpoena or this motion

 

CCP §2020.220(b)

 

Any person may serve the subpoena by personal delivery of a copy of it as follows:

(1) If the deponent is a natural person, to that person.

(2) If the deponent is an organization, to any officer, director, custodian of records, or to any agent or employee authorized by the organization to accept service of a subpoena.

 

CCP §2020.220(c)

 

Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service:

 

(1) Personal attendance and testimony, if the subpoena so specifies.

(2) Any specified production, inspection, testing, and sampling.

(3) The deponent's attendance at a court session to consider any issue arising out of the deponent's refusal to be sworn, or to answer any question, or to produce specified items, or to permit inspection or photocopying, if the subpoena so specifies, or specified testing and sampling of the items produced.

 

 

IDD is a non-party and a business entity.  Plaintiff fails to submit evidence of proper service of the deposition subpoena pursuant to CCP §2020.220(b)-(c). Plaintiff was required to personally serve IDD’s officer, director or custodian of records or any agent or employee authorized to accept service.  Unless Plaintiff personally served the deposition subpoena in compliance with CCP §2020.220, the Court does not have personal jurisdiction over IDD and cannot compel compliance.  Likewise, the Motion itself was served by mail, which is insufficient give there is no evidence of personal service of the subpoena on IDD. 

 

(3)  The deposition subpoena was fatally defective

 

The subpoena must be directed to the “custodian of records” or some other person qualified to authenticate the records.  (CCP § 2020.410(c).)  The subpoena must be delivered to someone able to attest to the authenticity and trustworthiness of those records.  This is “more than simply a clerical task.”  (Cooley v. Sup.Ct. (Greenstein) (2006) 140 Cal.App.4th 1039, 1045.) 

 

The business records to be produced must be designated either by: (1) “specifically describing each individual item”; or (2) “reasonably particularizing each category.”  (CCP § 2020.410(a).)  The subpoena must provide a “specific description” of each item. But it need not provide information obtainable only from the records themselves or from the deponent's record system, “like a policy number or the date when a consumer interacted with the witness.”  (CCP §2020.410(b).)  The categories of documents to be produced must be “reasonably” particularized from the standpoint of the party on whom the demand is made.  (Calcor Space Facility, Inc. v. Sup.Ct. (Thiem Indus., Inc.) (1997) 53 Cal.App.4th 216, 222.

 

Plaintiff failed to direct the subpoena to the custodian of records of IDD or some other individual at IDD who could authenticate the records.  (Chen Dec., Ex. B.)  Plaintiff failed to complete Item 1 of the deposition subpoena identifying the person to whom and location where the documents were to be produced.  (Chen Dec., Ex. B.) 

 

Plaintiff’s document categories did not specifically describe the items to be produced or provide reasonably particularized categories of documents.  Plaintiff’s RFPs seek information pertaining to “John Doe 1-5.”  However, Plaintiff’s definition of John Doe 1-5 is so vague and ambiguous that IDD would be unable to respond.  Plaintiff defines John Doe 1-5 as “Defendants,Operating without a Business License international logistics and currency exchange at your property.” The definition is incomprehensible. 

 

(4) Plaintiff is not entitled to discovery sanctions as a pro per plaintiff

 

Plaintiff is in pro per.  A pro per litigant may not be awarded discovery sanctions as compensation for the time and effort expended as a result of opposing party’s misuse of the discovery process.  (Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1180-1181.) 

 

CONCLUSION

 

Plaintiff Chen’s Motion to Compel Responses to Requests for Production (Set One); Request for Monetary Sanctions is DENIED. 

 

Moving Party to give notice.