Judge: Lisa R. Jaskol, Case: 21STCV23163, Date: 2023-10-24 Tentative Ruling

Case Number: 21STCV23163    Hearing Date: October 24, 2023    Dept: 28

Continued from 6/5/23 due to unavailability of the Judicial Officer on 6/5/23.

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On June 22, 2021, Plaintiff Songhee Kim (“Plaintiff”) filed this action against Defendant Jaewook Jeong (“Jeong”) and Jeong Jang (“Jang”) for assault, battery, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, failure to pay all earned wages and violations of the Ralph Civil Rights Act.

On September 27, 2021, Defendants filed an answer.

On April 26, 2023, Plaintiff filed a Motion to Compel Compliance of Third-Party Jeehyun Yum with Deposition Subpoena to be heard on June 5, 2023.

Trial is currently scheduled for August 1, 2023.

PARTY’S REQUESTS

Plaintiff requests that the Court order Third-Party Jeehyun Yum (“Deponent”) to comply with the deposition subpoena. Plaintiff also requests that the Court grant sanctions totaling $2,352.00.

LEGAL STANDARD

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records. (Code Civ. Proc., § 2020.010.) A deposition subpoena may command the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code Civ. Proc., § 2020.020.) The Court may order a third party to comply with a deposition subpoena upon any terms or condition as the court shall declare. (Code Civ. Proc., § 1987.1.)

California Rules of Court, rule 3.1346 states: “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”

Code of Civil Procedure section 2023.030, subdivision (a) provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” According to Code of Civil Procedure section 2023.010, subdivision (d), misuse of the discovery process includes “making . . . unsuccessfully and without substantial justification, a motion to compel or to limit discovery.”

DISCUSSION

"Unless otherwise ordered or specifically provided by law, all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005 and, when applicable, the statutes and rules providing for electronic filing and service."  (Code Civ. Proc.,  § 3.1300(a).)  "Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing." (Code Civ. Proc.,  § 3.1300(c).)

A requirement to "serve and file" a document means that "a copy of the document must be served on the attorney for each party separately represented . . . and that the document and a proof of service of the document must be filed with the court."  (Cal. Rules of Court, rule 1.21.)  Under Code of Civil Procedure section 1005, subdivision (b), "[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing."

Here, Plaintiff has not complied with service requirements for this motion. The proof of service for Plaintiff's motion lists only Deponent as the person served.  Plaintiff has not provided proof of service on Defendants, who have appeared in the case. Because Plaintiff has not provided proof of service on Defendants, the Court denies the motion.

CONCLUSION

Plaintiff Songhee Kim’s Motion to Compel Compliance of Third-Party Jeehyun Yum with Deposition Subpoena is DENIED.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.