Judge: Layne H. Melzer, Case: 19-01088862, Date: 2022-08-04 Tentative Ruling
Pltf. Green Blossom, Inc.
Motion to Compel Deposition (Oral or Written)
Plaintiff/Judgment Creditor Green Blossom, Inc. (“Judgment Creditor”) seeks an order compelling Jennifer Bigger (“Bigger”) to appear for a videotaped deposition via Zoom. Judgment Creditor also seeks an order holding Bigger be held in contempt and for monetary sanctions in the amount of $500 against Bigger pursuant to Code of Civil Procedure sections 1991 and 1992.
Bigger contends Judgment Creditor did not cite to any relevant legal authority to support its request for an order compelling Bigger’s deposition. (Opposition, 8:11.) CRC, Rule 3.1113(b) provides a memorandum “must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” The memorandum only cites to CCP sections 1991 and 1992 to support Judgment Creditor’s request for contempt and monetary sanctions. (Motion, 4:10-13.) Judgment Creditor’s notice of motion cites to CCP sections 2017.010, 2024.050, and 2031.310, none of which are relevant to compelling compliance with a deposition subpoena. (Motion, 2:7-10.) Judgment Creditor did not respond to Bigger’s contention in its reply.
Bigger also contends Judgment Creditor did not properly serve the notice of motion, moving papers, and subpoena on judgment debtor Paul Garcia (“Garcia”). Judgment Creditor contends, without any supporting legal authority, that service on Garcia is not required because judgment was already entered against Garcia. (Opposition, 4:18-20 and fn. 1.) Judgment Creditor’s argument is unpersuasive. (See, Code Civ. Proc., § 708.120, subd. (b); Shrewsbury Management, Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1223.)
The Court also notes that Judgment Creditor attempts to introduce new evidence in support of its reply. “The general rule of motion practice…is that new evidence is not permitted with reply papers…‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case ...’ and if permitted, the other party should be given the opportunity to respond.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Reply evidence should not address substantive issues in the first instance but only fill gaps in the evidence created by opposition. (Id., at 1538.) Here, the reply evidence is submitted in response to issues raised in Bigger’s opposition. Accordingly, the Court exercises its discretion and considers the new evidence. Bigger may respond to the new evidence at the hearing.
“Discovery in connection with enforcement of a judgment is set forth in the Enforcement of Judgments Law (§ 680.010 et seq.). The Civil Discovery Act applies to discovery in postjudgment enforcement proceedings only to the extent provided in sections 708.010 through 708.030 of the Enforcement of Judgments Law. (§ 2016.070.) In this regard, the discovery methods available to a judgment creditor include the ability to propound written interrogatories on the judgment debtor and to demand the production of documents from the judgment debtor. (§§ 708.020, 708.030.) In addition to written discovery, the Enforcement of Judgments Law also provides several mechanisms that permit a judgment creditor to examine the judgment debtor or a third party.” (Shrewsbury Management, Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1223.)
Under Code of Civil Procedure section 708.120, a judgment creditor may apply for a court order requiring a third party to appear before the court or a referee if the judgment creditor can prove ‘by affidavit or otherwise to the satisfaction of the proper court that [the] third person has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor in an amount exceeding’ $ 250. (§ 708.120, subd. (a).)…‘The purpose of the examination ... is for the third party to answer questions regarding the property of the judgment debtor it possesses or the debt it owes the judgment debtor.’” (Shrewsbury Management, Inc. v. Superior Court, 32 Cal.App.5th at 1223-1224.)
Under section 708.130, subdivision (a), witnesses “may be required to appear and testify before the court or referee in an examination proceeding under this article in the same manner as upon the trial of an issue…Considering the statutory scheme as a whole, the plain language of section 708.130 suggests that witnesses with relevant information may be required to appear and testify in an examination proceeding ordered under section 708.110 or section 708.120, as each section provides for ‘an examination proceeding under [the same] article’ as section 708.130, subdivision (a).” (Shrewsbury Management, Inc. v. Superior Court, 32 Cal.App.5th at 1224.)
Accordingly,
a third party witness “may be required to
appear and testify before the court or referee in an examination proceeding
under this article in the same manner as upon the trial of an issue.” (Code
Civ. Proc., § 708.130, subd. (a).) A subpoena duces tecum may be served on a
party to compel production of documents at trial and the use of a subpoena
duces tecum to discover and inspect relevant documents is an accepted
practice in the context of postjudgment enforcement proceedings. (Shrewsbury Management, Inc.
v. Superior Court (2019) 32 Cal.App.5th 1213, 1224-1225; see,
Yolanda’s, Inc. v.
Kahl & Goveia Commercial Real Estate (2017) 11
Cal.App.5th 509, 514 [Section 708.130 “allows any person with information
leading to the enforcement of the judgment, to be subpoenaed to testify in an
examination proceeding in the same manner as a trial witness. (Ahart, Cal.
Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2016) ¶
6:1280, pp. 6G-2 to 6G-3.)”; Lee v. Swansboro Country Property Owners Assn. (2007)
151 Cal.App.4th 575, 582 [the “use of a
subpoena duces tecum to discover and inspect relevant documents is an
accepted practice.”].)
Service of a subpoena “shall be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance.” (Code Civ. Proc., § 1987, subd. (a).)
Here, Judgment Creditor personally served a deposition subpoena for personal appearance and production of documents and things on Bigger three days before the scheduled deposition date, which is not the proper subpoena to issue and serve to compel a witness appear at trial. (Cantor Decl., ¶ 3, Exhibit A.) In addition, Judgment Creditor has not shown three days notice is a reasonable amount of time for Bigger to prepare for an examination. (Code Civ. Proc., § 1987, subd. (a).) Judgment Creditor acknowledged as much by sending a letter after the Deposition Subpoena was served offering to continue the deposition. (Cantor Decl., Exhibit B, at its internal Exhibit 2.) Accordingly, Judgment Creditor did not serve the correct subpoena and did not provide Bigger with a reasonable time to prepare for the examination.
Judgment Creditor has not shown serving a notice of continuance on Bigger only, after taking a certificate of non-appearance, would remedy the timeliness issue.
Furthermore, Judgment Creditor has not shown compliance with CCP section 1991.
Accordingly, Judgment Creditor’s motion is denied. No sanctions. Judgment Creditor shall give notice.