Judge: Michael E. Whitaker, Case: 21STCV06410, Date: 2022-10-10 Tentative Ruling

Case Number: 21STCV06410    Hearing Date: October 10, 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

            Defendant Ernest Phaynan Chock moves to enforce deposition subpoenas pertaining to Defendant served on Merchant Building Maintenance and Concentra Urgent Care/Radiology Department (collectively, Deponents).  Merchant Building Maintenance was the employer of Plaintiff Jose Urbano (Plaintiff) at the time of the incident at issue in the action. Concentra Urgent Care/Radiology Department is where Plaintiff sought medical care and treatment after the subject incident.

            Defendant seeks monetary sanctions in connection with the motions.  Neither Plaintiff nor Deponents have filed oppositions to the motions.

ANALYSIS

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other 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), or upon the court's own motion after giving counsel notice and an opportunity to be heard, 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 Civ. Proc., § 1987.1, subd. (a).)  Similarly, Code of Civil Procedure section 2025.480 provides: “[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.”  (Code Civ. Proc., § 2025.480, subd. (a).) 

Further, Code of Civil Procedure section 2020.220 provides in pertinent part:  “(a) Subject to subdivision (c) of Section 2020.410, service of a deposition subpoena shall be effected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated business records, documents, electronically stored information, and tangible things, as described in Article 4 (commencing with Section 2020.410), and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.  (b) Any person may serve the subpoena by personal delivery of a copy of it as follows:  (1) If the deponent is a natural person, to that person.  (2) If the deponent is an organization, 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, subds. (a)-(b).) 

Here, Defendant fails to provide evidence that the subject deposition subpoenas were served on Deponents by personal delivery on “any officer, director, custodian of records, or to any agent or employee authorized by the organization to accept service of a subpoena” as required.

First, the Court finds that the proof of service pertaining to the Merchant Building Maintenance deposition subpoena is incomplete.  (See Declaration of Brian W. Plummer, ¶ 4, Exhibit A.)  And with respect to the deposition subpoena pertaining to Concentra Urgent Care/Radiology Department, the Court finds that Defendant did not attach a proof of service altogether, apart from a proof of service regarding service of the deposition subpoena and notice to consumer on Plaintiff.  (See  Declaration of Brian W. Plummer, ¶ 4, Exhibit A.)

CONCLUSION AND ORDER

Therefore, the Court denies Defendant’s motions to compel compliance with the subject deposition subpoenas as procedurally defective.  Defendant shall give notice of the Court’s ruling and file a proof of service of such.