Judge: Michael E. Whitaker, Case: 21STCV21357, Date: 2023-01-27 Tentative Ruling

Case Number: 21STCV21357    Hearing Date: January 27, 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 Regal Cinemas, Inc. and Defendant The Commons at Calabasas (collectively, Defendants) move to compel the deposition of Monica Columbia (Deponent), a percipient eyewitness in the underlying matter.  Defendants seek monetary sanctions in connection with the motion.  The motion is unopposed.

            Preliminarily, the Court notes that “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. Rules of Court, rule 3.1346.) 

            Here, Defendants have advanced a copy of the proof of service demonstrating personal service on Deponent for the original notice of motion, motion, and attendant declaration in support of said motion, which had a set hearing date of April 13, 2023.  (See Notice of Non-Opposition, Exhibit A.)  However, Defendants rescheduled the hearing for the instant motion from April 12, 2023, to January 27, 2023.  The proof of service which Defendants advance to establish service of the Amended Notice of New Hearing Date on Deponent demonstrates that Deponent was only served electronically and via mail.  Defendants have further failed to advance a declaration or stipulation whereby Deponent agrees to accept service electronically or by mail.  Accordingly, the Court finds the service of the Notice of New Hearing Date on Deponent is defective.

            Accordingly, the Court shall continue the hearing date to February 28, 2023 at 1:30 PM in Department 32, to allow Defendants to secure one of the following and submit it with Court: (1) a declaration of Deponent agreeing to accept service of the “notice and all moving papers,” electronically or via mail; or (2) a proof of service demonstrating personal service of the “notice and all moving papers” on Deponent.

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