TENTATIVE ORDER

Plaintiffs Mercy 1031, LLC and Loyal 1031, LLC’s Motion to Compel Nonparty Alex Arroyo’s Deposition and Order to Show Cause re: Contempt is GRANTED in part and DENIED in part. Nonparty Alex Arroyo shall meet and confer with Plaintiffs Mercy 1031, LLC and Loyal 1031, LLC within ten (10) days of entry of this order for a deposition date to occur within ninety (90) days of entry of this order. Plaintiffs Mercy 1031, LLC and Loyal 1031, LLC’s Request for Monetary Sanctions is DENIED. Plaintiffs Mercy 1031, LLC and Loyal 1031, LLC’s Motion for an Order to Show Cause re: Contempt is DENIED.

Plaintiffs Mercy 1031, LLC and Loyal 1031, LLC to give notice.

REASONING

Plaintiffs Mercy 1031, LLC and Loyal 1031, LLC (“Plaintiffs”) move the Court for an order compelling nonparty Alex Arroyo to appear for deposition after he failed to appear for his noticed deposition on May 1, 2024. Plaintiffs represent that attempts to contact Arroyo after service of the notice of deposition were unproductive, with Arroyo refusing to commit to making an appearance, and efforts to communicate with Arroyo since May 1, 2024, have gone unanswered.

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action.” (Code Civ. Proc., § 2025.010.) Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents. (Code Civ. Proc., § 2020.010, subd. (a).) If a nonparty disobeys a deposition subpoena, the subpoenaing party may seek a court order compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. (Code Civ. Proc., § 2025.480, subds. (a)-(b).) Where the deposition subpoena requires a witness to appear for the taking of a deposition, the Court may make an order directing compliance with the subpoena. (Code Civ. Proc., § 1987.1, subd. (a).)

The Court finds there is good cause to order Arroyo’s deposition. Although they fail to provide a sworn statement to this effect, Plaintiffs represent in their motion papers that Arroyo was, during part of the time period relevant to this action, an employee of property management firm Avenue5 that managed and performed routine maintenance work on the property at issue in this action. (Mot., p. 4, ll. 8-10.) Arroyo was properly served a deposition subpoena and failed to appear, such that the deposition record was closed on May 1, 2024 (Mot., Dance Decl. ¶ 6), Plaintiffs moved to compel Arroyo’s deposition within less than 60 days, and subsequent meet-and-confer efforts have been unsuccessful (Mot., Dance Decl. ¶ 7). The Court has reason to conclude that Arroyo may have knowledge relevant to the subject matter involved in this action, thereby entitling Plaintiffs to take his deposition. (See Code Civ. Proc., § 2017.010.)

Accordingly, Plaintiffs Mercy 1031, LLC and Loyal 1031, LLC’s Motion to Compel Nonparty Alex Arroyo’s Deposition is GRANTED. Nonparty Alex Arroyo shall meet and confer with Plaintiffs Mercy 1031, LLC and Loyal 1031, LLC within ten (10) days of entry of this order for a deposition date to occur within ninety (90) days of entry of this order.

If a motion to compel a nonparty deposition is granted, “[t]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.480, subd. (j).) Arroyo has not opposed the present motion; thus, an award of monetary sanctions is proper, and Plaintiffs Mercy 1031, LLC and Loyal 1031, LLC’s Request for Monetary Sanctions is DENIED.

As to Plaintiffs’ request for an order finding Arroyo to be in contempt of court, Code of Civil Procedure section 1209, subdivision (a), sets forth twelve grounds upon which the Court may find that conduct to constitute contempt of court. (Code Civ. Proc., § 1209, subd. (a)(5).) Code of Civil Procedure section 1211, subdivision (a), provides that “[w]hen the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.” If the judicial officer finds that the affidavit provided by the moving party charges facts sufficient to constitute contempt, an order to show cause may be issued. (Code Civ. Proc., § 1212; In re Koehler (2010) 181 Cal.App.4th 1153, 1169.) The punishment for contempt is up to five days’ imprisonment, a fine of up to $1,000 for each contempt, or both. (See Code Civ. Proc., § 1218, subd. (a).)

The Court is not inclined to issue an order to show cause re: contempt here, as it is not clear to the Court that Arroyo is familiar with the justice system or is represented, i.e., guidance by the process server and Plaintiffs’ counsel to attend a deposition are not the same as a court order requiring an individual to do so. The Court trusts that Arroyo will comply with the present order, and if he has no knowledge relevant to the subject matter at issue in this case, this can be determined during his deposition. Thus, Plaintiffs Mercy 1031, LLC and Loyal 1031, LLC’s Motion for an Order to Show Cause re: Contempt is DENIED.