Judge: Martha K. Gooding, Case: 2020-01147067, Date: 2022-12-19 Tentative Ruling
1) Motion to Compel Deposition (Oral or Written)
2) Motion to Compel Deposition (Oral or Written)
(1)Motion to Compel Deposition
The Motion to Compel Deposition by Defendants A & EM Transportation, Inc. and Coleman Paul Bennett (collectively, “Defendants”) directed to third party Alaska National Insurance Company (“Alaska National”) is GRANTED pursuant to Code of Civil Procedure (“CCP”) sections 2025.480 and 1987.1.
The Court orders the Custodian of Records for Alaska National to appear for deposition on a mutually agreeable date that is within 20 days of this order.
Pursuant to CCP section 1987.1, the Court may, upon motion reasonably made by a party to the action, issue an order compelling compliance with a subpoena. Additionally, pursuant to CCP section 2025.480(a), “[i]f a deponent fails to answer any question or to produce any document…that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”
A motion brought pursuant to CCP section 2025.480, “shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2025.480(b).)
This motion was timely filed by Defendants on September 22, 2022, just two days after the relevant deposition and the date for production. (Selame Declaration (“Selame Decl.”) ¶¶ 4, 7 & Exh. A (ROA No. 177).) Additionally, Defendant’s counsel declares she attempted to meet and confer with Alaska National’s counsel on September 21, 2022. (Id. ¶ 14.)
It is undisputed that Alaska National did not previously produce its Custodian of Records, as required by the subpoena. (Selame Decl. ¶¶ 7, 14.) In response to this motion, Alaska National offers only a Declaration from its counsel, Leonard D. Lerner, who states that “after having reviewed the two (2) motions and getting all of the underlying facts, I determined that the best course of action was to give defense counsel, Carmen Selame, what she wanted.” (Lerner Decl. ¶ 6.) Although counsel questions the relevance of the requested deposition, he nonetheless indicates that Alaska National has agreed to produce its Custodian of Records. (Id. ¶ 15.)
Counsel for Alaska National argues that, in his view, testimony from its Custodian of Records is unnecessary; but Defendants’ counsel indicates an intent to obtain testimony relevant to the admissibility of the produced documents. (Selame Decl. ¶ 6.) It appears Defendants’ counsel also intends to seek information relevant to the business-records hearsay exception of Evidence Code section 1271.
The Court finds the requested testimony is relevant. The Motion is GRANTED.
Additionally, the Court notes that the subject subpoena included a request for production; however, Alaska National’s counsel states that all requested documents have now been produced. (Lerner Decl. ¶¶ 17, 32-33.) The Court orders Alaska National to provide a verified statement to that effect.
Finally, Alaska National is ordered to pay sanctions to Defendants in the amount of $500.00, payable within 30 days, pursuant to CCP sections 2025.480(j) and 1987.2.
(2)Motion to Compel Deposition
The Motion to Compel Deposition brought by Defendants against Alaska National is GRANTED pursuant to CCP sections 2025.480 and 987.1.
The Court orders the Person Most Knowledgeable for Alaska National to appear for deposition on a mutually agreeable date within 20 days of this order.
Pursuant to CCP section 1987.1, the Court may, upon motion reasonably made by a party to the action, issue an order compelling compliance with a subpoena. Additionally, under CCP section 2025.480(a), “[i]f a deponent fails to answer any question or to produce any document…that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”
A motion brought pursuant to CCP section 025.480 “shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2025.480(b).)
This motion was timely filed by Defendants on September 22, 2022, just two days after the relevant deposition and the date for production. (Selame Decl. ¶¶ 4, 8 & Exh. A (ROA No. 178).) Additionally, moving Counsel declares she attempted to meet and confer with Alaska National’s counsel on September 21, 2022. (Id. ¶ 17.)
Defendants’ counsel indicates the designated PMK was previously unable to recall any details and because Alaska National failed to produce documents in response to the subpoena, defense counsel was unable to attempt to refresh the deponent’s memory with documents. (Selame Decl. ¶¶ 10, 17 (ROA No. 178).) In response, counsel for Alaska National concedes that “no objection has been made to proceeding with this second session.” (Lerner Decl. ¶ 19.)
Based on the above, a second PMK deposition is appropriate and is ordered.
Additionally, counsel for Alaska National indicates that all documents requested in the subpoena have now been produced. (Lerner Decl. ¶¶ 17, 32-33.) The Court orders Alaska National to provide a verified statement to that effect.
Finally, Alaska National is ordered to pay sanctions to Defendants in the amount of $500.00, payable within 30 days, pursuant to CCP sections 2025.480(j) and 1987.2
Defendants are ordered to give notice.
If all parties wish to submit on the tentative ruling, they shall promptly notify the Court’s clerk by telephone.
If any party wishes oral argument on the tentative, the argument is continued to Thursday, January 5, 2023 at 1:30 p.m. due to a conflict on the Court’s calendar.