Judge: Lisa R. Jaskol, Case: 21STCV34963, Date: 2024-03-07 Tentative Ruling
Case Number: 21STCV34963 Hearing Date: March 7, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On September 22, 2021, Plaintiff Alexander Hallstead (“Plaintiff”) filed this action against Defendants Schueleke, Inc., Sergio Julian Castel (“Castel”), and Does 1-50 for motor vehicle tort and general negligence.
On November 8, 2021, Schuelke, Inc., erroneously sued and served as Schueleke, Inc. (“Schuelke”), filed an answer. On March 3, 2022, Castel filed an answer.
On February 13, 2024, Plaintiff filed a motion for an order to produce inmate Shehzad Peermahomed for deposition testimony, to be heard on March 7, 2024. On February 23, 2024, Schuelke filed an opposition. On February 29, 2024, Plaintiff filed a reply.
Trial is currently set for June 11, 2024.
PARTIES’ REQUESTS
Plaintiff asks the Court to order the production of Shehzad Peermahomed (“Peermahomed”), who is currently incarcerated in a state prison facility, for deposition.
Schuelke asks the Court to deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 1995 provides:
“If the witness be a prisoner, confined in a jail within this state, an order for his examination in the jail upon deposition, or for his temporary removal and production before a court or officer may be made as follows:
“1. By the court itself in which the action or special proceeding is pending, unless it be a small claims court.
“2. By a justice of the Supreme Court, or a judge of the superior court of the county where the action or proceeding is pending, if pending before a small claims court, or before a judge or other person out of court.”
(Code Civ. Proc., § 1995.)
Code of Civil Procedure section 1996 provides:
“Such order can only be made on the motion of a party,
upon affidavit showing the nature of the action or proceeding, the testimony
expected from the witness, and its materiality.”
(Code Civ. Proc., § 1996.)
Penal Code section 2623 provides:
“If in a civil action or special proceeding a witness be a prisoner, confined in a state prison within this state, an order for the prisoner’s examination in the prison by deposition may be made.
“1. By the court itself in which the action or special proceeding is pending, unless it be a small claims court.
“2. By a judge of the superior court of the county where the action or proceeding is pending, if pending before a small claims court or before a judge or other person out of court.
“Such order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality. The deposition, when ordered, shall be taken in accordance with Section 2622.”
(Pen. Code, § 2623.)
DISCUSSION
Plaintiff wishes to depose Peermahomed, who is currently incarcerated at Sierra Conservation Center and is not eligible for parole until April 2028. According to Plaintiff, Peermahomed was a manager for Schuelke and was the first person Castel, a Schuelke employee, spoke with after Castel’s collision with Plaintiff’s vehicle. Peermahomed also provided information for Schuelke’s discovery responses. The litigation coordinator at Sierra Conservation Center has stated that he can produce Peermahomed for a deposition if Plaintiff obtains a court order.
Schuelke opposes the motion, arguing Plaintiff did not timely serve and file it. “Unless 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.” (Code Civ. Proc., § 1005, subd. (b).) “Any period of notice . . . shall be extended after service by electronic means by two court days” with exceptions that do not apply here. (Code Civ. Proc., § 1005, subd. (b).)
Under
these statutes, Plaintiff should have filed and served the motion no later than
February 8, 2024. Plaintiff’s argument
that California Rules of Court, rule 2.251(i)(2), authorizes later service and
filing is incorrect. Plaintiff’s
February 13, 2024 filing and service of the motion by electronic means was
untimely. Therefore, the Court denies
the motion.
CONCLUSION
The Court DENIES Plaintiff Alexander Hallstead’s motion for an order to produce inmate Shehzad Peermahomed for deposition testimony without prejudice to filing and serving a timely motion.
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.