Judge: Martha K. Gooding, Case: 21-01207278, Date: 2023-08-28 Tentative Ruling

Motion to Compel Deposition– Continued

Plaintiff Galardi Group, Inc. (“Plaintiff”) seeks an order compelling Defendants Michael Weisman’s and Ed Collins’ attendance and testimony at deposition and compelling them to produce the documents, electronically stored information, and tangible things described in the deposition notices.

For the reasons set forth below, the Motion is continued to October 9, 2023 at 1:30 p.m. in Department C31 to allow the parties an opportunity to cure the myriad defects noted below.

Plaintiff electronically served the moving papers on Collins and Weisman (collectively, “Deponents”), both of whom are self-represented.  Plaintiff did not show, however, that each of the Deponents affirmatively consented to electronic service.  Pursuant to CRC Rule 2.251(c)(3)(B), a self-represented litigant is “to be served by non-electronic methods unless [he] affirmatively consent[s] to electronic service.” 

The Opposition papers submitted by Amusement Park Entertainment, LLC were likewise improperly served.  In addition, Amusement Park Entertainment LLC failed to include the server’s email address on the proof of service, as required by CCP section 1013b(b)(1).

Although Plaintiff filed a Reply to an Opposition by Weisman, the Court is unable to find any Opposition by Weisman in its file. It does not appear Weisman filed the Opposition.

Moreover, according to Plaintiff, the Opposition by Weisman purports to be filed by Weisman on behalf of both Weisman and Collins.  To the extent Weisman purported to sign the opposition on behalf of both himself and Collins, that would be impermissible, because Weisman is not counsel for Collins and he cannot act on Collins’ behalf.  The Court emphasizes that it does not have a copy of the purported Opposition in its file; thus, it cannot say whether it is proper or not.

In addition, Plaintiff’s Reply to Weisman’s/Collins’ Opposition and Response to Amusement Park Entertainment LLC’s Opposition were served by mail on both Collins and Weisman.  Service by mail on Weisman in Texas is improper because it is not reasonably calculated to ensure delivery by the next business day.  See CCP § 1005(c). 

Although service by mail is not an authorized method of service under CCP section 1005(c), mail service on Collins might be sufficient because the reply/response were mailed from Newport Beach to Dove Canyon and that might be reasonably calculated to arrive by the next business day.  See Blake v. Ecker (2001) 93 Cal.App.4th 728, 736, fn. 6, disapproved on other grounds (Service of an opposition by regular mail is arguably sufficient when service occurs within the time frame prescribed by statute, the parties’ attorneys are in the same general area, and the moving party was able to reply to the opposition.)

No later than September 5, 2023, the parties shall submit proper proofs of service showing Plaintiff’s moving papers and Amusement Park Entertainment LLC’s Opposition were properly served on Deponents. 

If Deponents choose to file an Opposition, their opposition brief(s) must be filed with the Court and served no later than September 18, 2023.

Plaintiff is ordered to give notice.