Judge: Mark E. Windham, Case: 21STCP04079, Date: 2022-10-05 Tentative Ruling
Case Number: 21STCP04079 Hearing Date: October 5, 2022 Dept: 26
MOTION
TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS
RECORDS
(CCP
§ 1987.1, 2020.410)
TENTATIVE RULING:
Petitioner Wawanesa General Insurance Company’s Motion for
Order Compelling Response to Deposition
Subpoena for Production of Business Records is CONTINUED TO DECEMBER 7,
2022 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY NOVEMBER
9, 2022, PETITIONER IS TO FILE SUPPLEMENTAL PAPERS CORRECTING THE DEFECTS NOTED
HEREIN. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING DENIED.
SERVICE:
[X]
Proof of Service Timely Filed (CRC 3.1300) NO
[X] Correct Address (CCP 1013, 1013a)
NO
[X]
16/21 Day Lapse (CCP 12c and 1005 (b)) NO
SUMMARY OF COMPLAINT: Petition for issuance of a court
action number so Petitioner can compel Respondent’s discovery.
REQUEST FOR RELIEF: Compel Progressive Casualty Insurance to
comply with the deposition subpoena for business records.
OPPOSITION: None filed as of October 3, 2022.
REPLY: None filed as of October 3, 2022.
ANALYSIS:
On December 15, 2021,
Petitioner Wawanesa General Insurance Company (“Petitioner”) filed the instant
Petition for Issuance of a Case Number in order to propound discovery in an insurance
proceeding with respect to its insured, Alexander Rubincheck. Petitioner filed
the instant Motion for Order Compelling Response to Deposition Subpoena for
Production of Business Records on June 3, 2022. No opposition has been filed.
Petitioner moves for an order compelling Progressive Casualty
Insurance (“Progressive”) to produce business records in response to a
deposition subpoena. The Motion is brought pursuant to Code of Civil Procedure
sections 1985.3, 1987.1, and 2020.240.
Under Code of Civil Procedure section 1987.1, “If a subpoena
requires the attendance of a witness or the production of books, documents . .
. the court, upon motion reasonably made by any person described in subdivision
(b) . . . may make an order quashing the subpoena entirely, modifying it, or
directing compliance with it upon those terms or conditions as the court shall
declare, including protective orders.” Code of Civil Procedure section 2020.240
provides that failure to comply with a deposition subpoena may be punishable as
contempt. Finally, Code of Civil Procedure section 1985.3 sets forth the
procedure for service of a subpoena duces tecum and objection thereto.
Petitioner, however, has failed to demonstrate service of the deposition
subpoena on Progressive. Under Code of Civil Procedure section 2020.220, the
deposition subpoena is to be personally served “to any officer, director,
custodian of records, or to any agent or employee authorized by the
organization to accept service of a subpoena.” (Code Civ. Proc., § 2020.220,
subd. (b)(2).) The supporting declaration of Petitioner’s counsel states that
Progressive was personally served on January 12, 2022, but the document cited
in support only shows service by mail to counsel for Rubincheck, Fanny Grines,
Esq. (Motion, Hernandez Decl., ¶¶2-3 and Exh. B.) The Motion is also accompanied
by an “Order Confirmation” from the deposition officer, ABI Document Support
Services, which mentions receipt of the records request. (Id. at Exh.
A.) This confirmation, however, is dated December 12, 2021, which is prior to
purported personal service of the deposition subpoena on Progressive on January
12, 2022. (Ibid.)
Just as crucially, Petitioner has not demonstrated service of the instant
Motion on Progressive. Cal. 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 at an address
specified on the deposition record.” Here, the proof of service of the Motion only
indicates that it was served on counsel for Rubincheck. (Motion, Proof of
Service.)
Conclusion
Therefore, Petitioner Wawanesa General Insurance Company’s
Motion for Order Compelling Response to
Deposition Subpoena for Production of Business Records is CONTINUED TO DECEMBER
7, 2022 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY
NOVEMBER 9, 2022, PETITIONER IS TO FILE SUPPLEMENTAL PAPERS CORRECTING THE
DEFECTS NOTED HEREIN. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING DENIED.
Court clerk to give notice.