Judge: Michael E. Whitaker, Case: 20STCV13272, Date: 2022-10-05 Tentative Ruling

Case Number: 20STCV13272    Hearing Date: October 5, 2022    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

MOTION

            Plaintiff Rudolph Stermer (Plaintiff) filed a wrongful death claim against Defendants Steven Block and Sonya Goldstein Franklin (collectively, Defendants) regarding the death of Plaintiff’s son who was struck by Defendants’ car while riding on his bicycle. Defendants move to enforce a subpoena they served on the Los Angeles Police Department for the production, by way of visual inspection and photographing, of evidence related to the bicycle accident. The Non-Party Deponent (LAPD) opposes the motion.

            The Court notes that though LAPD provides a copy of the subpoena at issue within their opposition, Defendants failed to provide a copy of the subpoena at issue, as well as a proof of service. However, LAPD states it received personal service of the subpoena at issue on August 11, 2022, without objection from Defendants as to the accuracy of this date.

ANALYSIS

Code of Civil Procedure section 1987.1, subdivision (a) provides, “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or things before a court, or at the trial of an issue therein, or at the taking of a deposition, 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 . . . .”

Under Code of Civil Procedure section 2025.480, “[i]f a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control 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.”  However, such motion “shall be made no later than 60 days after the completion of the record of the deposition.” (Code Civ. Proc., § 2025.480, subd. (b).)  A record of deposition is complete as of the date set for production in the subpoena. (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1032; see also Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 136.)

Here, as LAPD correctly notes in its opposition papers, Defendants did not serve the deposition subpoena prior to filing of this motion. Because the failure to appear in connection with a validly issued deposition subpoena is a prerequisite to moving to compel under Code of Civil Procedure sections 2025.480 and 2020.030, the Court finds that Defendants’ motion to compel compliance with the deposition subpoena procedurally flawed.

Defendants request, in the alternative, the Court continue or stay trial. “The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (See Cal. Rules of Court, rule 3.1332.)  But Defendants omit any explanation or support as to why a continuance is necessary here, and thus fail to show good cause.[1]  

CONCLUSION AND ORDER

            Therefore, the Court denies Defendants’ motion to compel LAPD’s compliance with the deposition subpoena, as well as Defendants’ motion to continue or stay trial, without prejudice.

Defendants shall give notice of the Court’s ruling and file a proof of service of such.