Judge Lynne M. Hobbs, Case Number: 22STCV27369, Date: 2023-12-12 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV27369, Date: 2023-12-12 Tentative Ruling

Case Number: 22STCV27369 Hearing Date: December 12, 2023 Dept: 30

GALDA ORTIZ vs EDUARDO NAVARRO TAPIC

Motion to Compel Deposition of Nonparty Witness

TENTATIVE

Defendant/Cross-Complainant Eduardo Navarro Tapic’s motion to compel nonparty witness Felipe Antonio Salazar Castillo to attend deposition is GRANTED. Felipe Antonio Salazar Castillo is ordered to appear for deposition within 30 days of this order. Defendant’s request for sanctions is DENIED.

Legal Standard

“Personal service of a deposition subpoena obligates any resident of California to appear, testify and produce whatever documents or things are specified in the subpoena; and to appear in any proceedings to enforce discovery.” (CCP § 2020.220(c).)

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (CCP § 2025.480(a).) This motion must be made no later than sixty (60) days after completion of the deposition record. (CCP § 2025.480(b).) A motion to compel compliance with a subpoena must be accompanied by a meet and confer declaration under section 2016.040. (CCP § 2025.480(b).)

A subpoena for a deposition of a non-party is enforceable by a motion to compel compliance brought pursuant to Code of Civil Procedure section 1987.1. This section provides that “[i]f a subpoena requires the attendance of a witness . . . the court, upon motion reasonably made … or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order … directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (CCP § 1987.1.)

Sanctions are available under both CCP § 1987.2 and CCP § 2025.480(j). CCP § 1987.2 states: “[T]he court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification . . .” CCP § 2025.480(j) states: “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.”

Discussion

Defendant/Cross Complainant Tapic (“Defendant”) moves the Court to compel Felipe Antonio Salazar Castillo, a witness to the accident at issue in this case, to appear for his deposition, and impose monetary sanctions against him.

On August 18, 2023, Defendant personally served on Castillo a Notice of Deposition and a Deposition Subpoena for Personal Appearance and Production of Documents, set to take place on September 7, 2023. (Rossi Decl., Exs. C-D.) On September 7, 2023, Castillo failed to appear for his deposition. (Id., Ex. F.) Castillo has failed to respond to Defendant’s meet and confer attempts, before and after his non-appearance. (Id., ¶¶ 13-15.)

The Court finds the meet and confer requirements have been met. As Castillo was personally served with a subpoena to appear for deposition, but failed to appear, Defendant’s motion is granted. Felipe Antonio Salazar Castillo is ordered to appear for deposition within 30 days of this order.

Sanctions

The Court exercises its discretion to deny Defendant’s request for monetary sanctions against Castillo under Code of Civil Procedure § 1987.2, as the motion was not opposed, and sanctions are available under this section if the motion is opposed in bad faith.

Defendant’s request for sanctions under CCP section 2023.010 for the misuse of discovery is also denied, as "sections 2023.010 and 2023.030 do not independently authorize the trial court to impose monetary sanctions for misuse of discovery.” (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504.)

The request for sanctions is also denied CCP § 2025.480(j), as there was no opposition, and CCP § 2025.480(b) mandates the imposition of sanctions for motions that are unsuccessfully opposed.

Defendant also requests sanctions under CCP sections 2020.240 and 1992. Pursuant to CCP § 2020.240, “[a] deponent who disobeys a deposition subpoena in any manner described in¿subdivision (c) of Section 2020.220¿may be punished for contempt under Chapter 7 (commencing with¿Section 2023.010) without the necessity of a prior order of court directing compliance by the witness. The deponent is also subject to the forfeiture and the payment of damages set forth in¿Section 1992.”

Notwithstanding the availability of such relief, however, this Court finds the warning contained in the Rutter Guide persuasive:

“The contempt procedure is complex, time-consuming and doomed to failure unless all the procedural niceties are observed. Even if they are met, many judges are reluctant to hold a person in contempt absent a prior court order. Therefore, it is usually a better idea to move first for an order compelling the deponent to attend and for an award of monetary sanctions. Consider contempt proceedings only if the witness disobeys a specific court order or otherwise is persistently recalcitrant.”

(Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 8:617.1.)

Here, no prior court order has issued. Accordingly, the Court declines to set an order to show cause regarding contempt at this time.

Lastly, under CCP section 1992, “[a] person failing to appear pursuant to subpoena or a court order also forfeits to the party aggrieved the sum of five hundred dollars ($500), and all damages that he or she may sustain by the failure of the person to appear pursuant to the subpoena or court order, which forfeiture and damages may be recovered in a civil action.” Defendant is not entitled to a forfeiture fee, which is only recoverable in a separate civil action. “The subpoenaing party can also file a civil action against the witness who disobeys the subpoena to recover a forfeiture of $500, plus all damages sustained as a result of the witness’ failure to attend.” Weil & Brown, Civ. Proc. Before Trial, 8:618 (citing CCP §§2020.240, 1992). “However, as noted by the Supreme Court, this is an impractical remedy: ‘The simple economics of modern litigation essentially preclude such an action.’ [New York Times v. Superior Court (1990) 51 Cal. 3d 453, 464].” Id. at 8:619. As stated in the New York Times case “’contempt is generally the only effective remedy against a nonparty witness.’ The monetary sanctions under section 1992 are not effective as a practical matter. The maximum sanction is a $500 forfeiture plus actual damages, and the party aggrieved by the failure to make discovery can recover the sanctions only by bringing an independent civil action. It would likely be a rare case in which a civil litigant would impose on himself the additional burden of a separate suit to recover a mere $500.”