Judge: Linda S. Marks, Case: 2020-01147638, Date: 2022-12-12 Tentative Ruling

1.Motion to Compel Deposition (Oral or Written)

2.Motion to Compel Deposition (Oral or Written) filed by Jay Semore on 8/26/22

3.Motion for Summary Judgment and/or Adjudication filed by Engin Oktay on 11/15/21

Motions #1 & 2: Plaintiff Jay Seymore (“Plaintiff”) moves to compel compliance with subpoenas as to non-parties Diversified Real Property Management & Business Services, Inc. (“Diversified”) and its owner, Amad Azizi.

The proofs of personal service filed on August 31, 2022 show that the Motions were personally served on Diversified and Amad Azizi as required by California Rules of Court, Rule 3.1346. (ROAs 200 and 202.)

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 may make an order directing compliance with it. (Code Civ. Proc., § 1987.1.)

On April 13, 2022, Plaintiff served Diversified personally with a deposition subpoena for Diversified’s person most knowledgeable (“PMK”) and attempted to serve Diversified with a subpoena for Mr. Azizi. (Declaration of Chad E. Irvin, ¶ 11.) The depositions were set for May 24, 2022. (Ibid.) Diversified refused to accept service for Mr. Azizi so Plaintiff attempted to serve Mr. Azizi at his home. (Id., ¶¶ 11, 13.) A man fitting Mr. Azizi’s description refused service because the first name was misspelled. (Id., ¶ 13.) On May 24, 2022, Diversified failed to appear or produce any documents. (Id., ¶ 15.)

Service of a subpoena on a person must be made by personal delivery. (Code Civ. Proc., §§ 1987, 2020.220(b)(1).) The declaration of counsel makes clear that Mr. Azizi was not personally served with the disputed subpoena.

Tentative Ruling: The Motion as to Mr. Azizi is DENIED.

As to Diversified, Plaintiff has established that Diversified was properly served with a deposition subpoena with a deposition date of May 24, 2022 and failed to object or appear.

Tentative Ruling: The Motion as to Diversified is GRANTED. Diversified is ORDERED to appear for deposition and produce all non-privileged, responsive documents requested in the deposition subpoena served by Plaintiff.

Sanctions:

Plaintiff requests monetary sanctions against Diversified in the amount of $9,495.00. Plaintiff already took the deposition of Diversified once before when it produced Ms. Terrazas as its PMK. Thus, Diversified’s refusal to appear for a second time may be seen as somewhat justifiable. Also, Diversified is not a party to this action and sanctions should be awarded against it only under egregious circumstances.

Tentative Ruling: The Court declines to award sanctions.

Plaintiff to give notice.

Motion #3: Defendant Engin Oktay moves for summary judgment on the Complaint filed by Plaintiff Jay Seymore and the Complaint by Plaintiff Benchmark Insurance. The Court determines that Plaintiff Seymore has been prevented from taking this further discovery since the last continuance through no fault of his own.

Tentative Ruling: The motion is CONTINUED pursuant to Code of Civil Procedure section 437c, subdivision (h) to a date to be determined at the time of hearing on this motion, for further discovery limited to the production of documents pertaining to Diversified’s files and the further deposition of Diversified’s person most knowledgeable, as indicated in the granting of Plaintiff’s Motion to Compel Deposition.

Amended oppositions and any reply shall be filed and served pursuant to Code.

Court orders Attorney Chad Irvin to give notice.