Judge: Michael E. Whitaker, Case: 19STCV25342, Date: 2023-06-20 Tentative Ruling

Case Number: 19STCV25342    Hearing Date: June 20, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

            Defendants Joseph William Davison and Jennifer L. Davison (collectively, Defendants) move to enforce a deposition subpoena Defendants served on Dr. Ali Najafi (Deponent), from whom Plaintiff Luis Manuel Zarate (Plaintiff) sought treatment and care in connection with his claimed injuries in this case.  Defendants seek monetary sanctions.  The motion is unopposed.

Preliminarily, the Court notes that Defendants have not advanced evidence to show that they personally served the subject subpoena on Deponent as required.  (Code Civ. Proc., § 2020.220, subd. (c)(2).)  Here, Defendants attached to the motion a proof of service of the operative subpoena which indicates it was personally served on “Kimberly Melkonian on behalf of Dr. Ali Najafi”.  (Declaration of David J. Mendoza, ¶ 12; Exhibit G.)  Because proof of service indicates the subject subpoena was personally served on an individual other than Deponent, Defendants have failed to establish personal service of the operative subpoena on Deponent as required. 

Further, the Court notes deficiencies in Defendants’ proof of service attendant to the motion to compel.  “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.” (Cal. R. Ct. 3.1346.)  Here, the proof of service is executed by “Dalia Delgado” who states “I caused such document(s) to be placed in an envelope and delivered by hand to the business/home of the above addressee(s).”  This statement indicates that while Dalia Delgado facilitated the personal service of the motion to compel on Deponent, she did not complete the personal service herself, and thus does not have the requisite personal knowledge to confirm Deponent was personally served with the motion to compel.  Accordingly, the Court finds Defendants have failed to establish Deponent was personally served with the motion to compel in compliance with California Rules of Court, rule 3.1346. 

Therefore, the Court denies Defendants’ motion as procedurally defective.  Defendants shall give notice of the Court’s ruling and file a proof of service of such.