Judge: Lee W. Tsao, Case: 22NWCV01586, Date: 2024-01-25 Tentative Ruling

Case Number: 22NWCV01586    Hearing Date: March 27, 2024    Dept: C

PERRIN v. JOE’S SWEEPING, INC., ET AL.

CASE NO.:  22NWCV01586

HEARING:  3/27/24 @ 9:30 AM

#4

TENTATIVE RULING

Defendant Joe’s Sweeping Inc. dba Nationwide Environmental Service’s Motion to Compel Compliance is GRANTED. No sanctions.

Moving Party to give NOTICE.

The motion is unopposed as of March 27, 2024.

This is about a motor vehicle accident that occurred on April 20, 2022 in Norwalk, California. Defendant Joe’s Sweeping Inc. dba Nationwide Environmental Services moves to compel compliance with a deposition subpoena of business records served on non-party Shin Imaging Center. Defendant also seeks sanctions.

Legal Standard

A deposition subpoena for business records directs a nonparty's “custodian of records” to deliver a copy of the requested documents to a “deposition officer” or to make the original documents available to the subpoenaing party for inspection and copying. (Code Civ. Proc., §§ 2020.410, subd. (c); 2020.430, subd. (a)-(e).)

If a deponent does not produce a requested document under his or her control, the subpoenaing party may bring a motion to compel production “no later than 60 days after the completion of the record of the deposition.” (Code Civ. Proc., § 2025.480, subd. (b); Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.)

Meet and Confer

The motion shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2025.480, subd. (b).) Defendant complied with the meet and confer requirements. (Decl. Ruiz, ¶ 9.)

Timeliness

The deposition record is “complete” as of the “date specified for production.” (Board of Registered Nursing v. Super. Ct. (Johnson & Johnson) (2021) 59 Cal.App.5th 1011, 1032-1033.)

Defendant issued a deposition subpoena for business records to Shin Imaging Center on May 16, 2023 and again on October 16, 2023. (Decl. Ruiz, ¶¶ 5, 8.) Defendant filed the instant motion on December 19, 2023. The Court infers that the date specified for production in the October 16, 2023 deposition subpoena is later than October 19, 2023.

Thus, Defendant is timely.

Compel Compliance

“‘An order compelling discovery must rest on a showing that the discovery is reasonably calculated to lead to admissible evidence….’"  (Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 117.) The burden rests upon the party seeking the discovery to provide evidence from which the court may determine these conditions are met. (Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216, 223-224.)

Defendant advances the declaration of its counsel, Jennifer A. Ruiz. She states, “Plaintiff alleges significant injuries and claims damages as a result of the incident. Defendant received plaintiff’s responses to form interrogatories and production of documents on April 4, 2023. Plaintiff identified Shin Imaging as a facility where she underwent an MRI of her cervical spine following the subject accident. In order to fairly and accurately evaluate Plaintiff’s claim, Defendant caused Notice of Deposition Subpoena of Business Records (hereinafter “Subpoenas”) to be served upon Shin Imaging Center and its custodian of records.” (Decl. Ruiz, ¶¶ 2 to 5.)

Because the information will help Defendant evaluate Plaintiff’s claim, the Court finds that Defendant has provided evidence to show that the requested discovery is reasonably calculated to lead to admissible evidence.

Sanctions

The court may award “monetary and contempt sanctions” against nonparties and their attorneys “who flout the discovery process by suppressing or destroying evidence.” (Temple Cmty. Hosp. v. Super. Ct. (1999) 20 Cal.4th 466, 476-77.) The Code provides a catch-all provision that gives the Court wide powers to sanction “anyone” who misuses the discovery process. (See Code Civ. Proc., § 2023.030.)

In its discretion, the Court does not award monetary sanctions.

Based on the above, the motion to compel compliance is GRANTED. No sanctions are awarded.