Judge Mark E. Windham, Case 19STCV27329 2022-10-11 Tentative Ruling

Judge: Mark E. Windham, Case: 19STCV27329, Date: 2022-10-11 Tentative Ruling

Case Number: 19STCV27329 Hearing Date: October 11, 2022 Dept: 26

MOTION TO QUASH NOTICE TO APPEAR AT TRIAL IN LIEU OF SUBPOENA

(Code Civ. Proc., § 1987)

SERVICE OF MOTION:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for discrimination in employment and related claims.

REQUEST FOR RELIEF: Quash the Notice to Appear at Trial on the grounds that it was not served personally on eight of the nine witnesses. Those eight witnesses are either not employees of Defendant or are not Defendant’s officers, directors or managing agents. Therefore, personal service of the Notice to Appear is required for the Court to obtain jurisdiction over them.

OPPOSITION: Throughout this litigation, defense counsel has represented the witnesses when convenient and now seeks to withhold them as convenient. This is inequitable. In discovery responses, Defendant stated that the witnesses could be contacted through defense counsel. Defense counsel also prepared the witnesses for deposition and did not dispute being characterized as the witnesses’ counsel. The witnesses are managing agents of Defendant and were properly served with the Notice to Appear at Trial through defense counsel.

REPLY: Defendant will drop its request to quash the Notice with respect to Jorge Ronquillo. As to the six lunch monitors, Plaintiff does not even bother to oppose the Motion to Quash, conceding its merits. Finally, the remaining witnesses named—Steve Falkinburg and Victoria Velasquez—were formerly Defendant’s employees but were no longer employed by Defendant at the time the Notice was served. The statute makes no exception regarding service of the Notice to Appear for former directors, officers or managing agents of a party. Failure to personally serve Steve Falkinburg and Victoria Velasquez with the Notice to Appear renders it invalid.

TENTATIVE RULING:

Defendant Azusa Unified School District’s Motion to Quash Notice to Appear at Trial in Lieu of Subpoena is GRANTED AS TO ALL NAMED WITNESSES EXCEPT JORGE RONQUILLO.

ANALYSIS:

This action arises from Plaintiff Pritpal Walia’s (“Plaintiff”) employment as an afternoon aid for Defendant Azusa Unified School District (“Defendant”). On August 5, 2019, Plaintiff filed the operative Complaint for (1) FEHA discrimination, (2) FEHA retaliation, (3) FEHA failure to prevent discrimination and retaliation, (4) FEHA failure to provide reasonable accommodations, (5) FEHA failure to engage in the interactive process, (6) declaratory relief, and (7) failure to permit inspection of personnel and payroll records.

Plaintiff passed away during the pendency of this action and a stipulation was filed allowing their successor-in-interest to substitute into the case. (Stip and Order, 05/18/21.) On March 21, 2022, the action was reclassified to the limited jurisdiction court.

Pursuant to ex parte application, Defendant filed a Motion to Quash Notice to Appear at Trial in Lieu of Subpoena on shortened time, on October 3, 2022. Plaintiff had filed an opposition on September 30, 2022 and Defendant’s reply was also filed on October 3, 2022.

Discussion

The Motion to Quash Notice to Appear at Trial is brought pursuant to Code of Civil Procedure section 1987, subdivision (b) on the grounds that the manner of service was defective as to eight of the nine named witnesses. Code of Civil Procedure section 1987, subdivision (a) requires service of a subpoena upon a witness personally. An exception is set forth in Code of Civil Procedure section 1987, subdivision (b) for “anyone who is an officer, director, or managing agent of any such party” such that service may be accomplished upon the attorney of that party.

Plaintiff served a Notice to Appear at Trial in Lieu of Subpoena with respect to the following witnesses:

1. Steve Falkinburg

2. Victoria Velasquez

3. Jorge Ronquillo

4. Christy Rojas

5. Georgina Esparza

6. Olivia Madrid

7. Angelica Velasquez

8. Irma Pedraza De Campos

9. Esmeralda Bustamante

(Motion, Williams Decl., Exh. A.) The Notice was served by electronic mail to defense counsel on September 22, 2022. (Id. at Exh. A, p. 000007.) Defendant served an objection on September 23, 2022 based on the failure to serve the witnesses personally. (Id. at Exh. B.) Following a meet and confer effort, this Motion to Quash followed. (Id. at Exhs. C-D.)

The Court notes that following the arguments in the opposition and reply, the Motion to Quash only remains relevant as to witnesses Steve Falkinburg and Victoria Velasquez. The opposition makes no argument to support the Notice to Appear regarding Christy Rojas, Georgina Esparza, Olivia Madrid, Angelica Velasquez, Irma Pedraza De Campos and Esmeralda Bustamante (the lunch monitor witnesses) and the reply concedes that Jorge Ronquillo will appear pursuant to the Notice. (Opp., pp. 4:3-7:24; Reply, p. 5:18-6:5.)

With respect to witnesses Steve Falkinburg and Victoria Velasquez, Defendant’s remaining contention is that they are no longer its employees and, therefore, cannot be considered officers, directors, or managing agents subject to the exception set forth in Code of Civil Procedure section 1987, subdivision (b). This fact was raised in Defendant’s objection to the Notice to Appear, yet Plaintiff offers no authority regarding service on former employees, even if they are deemed officers, directors, or managing agents. Nor does Plaintiff explain what legal authority provides that defense counsel’s representation of the witnesses means they should be served with the Notice to Appeal through defense counsel. (Opp., pp. 4:3-7:24.) The statute does not indicate a witness represented by counsel can be served through their attorney. (Civ. Code Proc., § 1987, subds. (a), (b).)

Therefore, Defendant has demonstrated that personal service of the Notice to Appear was required for witnesses Steve Falkinburg and Victoria Velasquez, and that the Notice of Appear must be quashed due to its improper service by electronic mail.

Conclusion

Defendant Azusa Unified School District’s Motion to Quash Notice to Appear at Trial in Lieu of Subpoena is GRANTED AS TO ALL NAMED WITNESSES EXCEPT JORGE RONQUILLO.

Moving party to give notice.