I. Background  

Plaintiff Keith Smith (“Plaintiff”) filed this action against defendant Liat Beroukhai (“Defendant”) for damages arising from an automobile incident.  

Plaintiff now moves to compel the deposition and production of documents of non-party Jonathan Marsand Balter (“Balter”).  Plaintiff asserts he served Balter with a valid deposition subpoena that required Balter to appear for his deposition on October 18, 2023, but Balter failed to appear.   

The motion is unopposed.   

II. Motion to Compel Non-Party Deposition 

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.  (Code Civ. Proc., § 2020.010.)  A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.  (Code Civ. Proc., § 2020.020.) 

A 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 documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.  (Code Civ. Proc., § 2020.220, subd. (a).)  Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.  (Code Civ. Proc., § 2020.220, subd. (c).)  A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.  (Code Civ. Proc., § 2020.240.)  

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¿or electronic service¿at an address¿or electronic service address¿specified on the deposition record.”  (Cal. Rules of Court, Rule 3.1346.)   

In this case, Plaintiff asserts Balter was present at the time of the incident, and had assisted Plaintiff in identifying Defendant. Plaintiff avers Balter drafted an incident report, and is in possession of video surveillance of the incident. Balter allowed Plaintiff to view the video, but did not send a copy. Defendant provides proof of service showing personal service upon Balter with the deposition subpoena. (Mot. Exh. 1.) There has been no objection filed to the subpoena for Balter’s deposition, nor has any opposition or motion to quash been filed.  

However, the Court is precluded from granting the motion until Plaintiff first resolves the issue of service. Plaintiff seeking an order for a nonparty to comply with the deposition subpoena requires the non-party to also be served with the moving papers by personal service, unless the nonparty agrees to accept service by mail or electronic service. (California Rules of Court, Rule 3.1346.) The proof of service indicates Balter was served by mail. However, there is no evidence that Balter agreed to accept service by mail, and therefore Plaintiff must serve the moving papers by personal service.    

Based on the foregoing, the motion is denied without prejudice. 

Moving party is ordered to give notice.   

C61906 

PLEASE TAKE NOTICE: 

Dated this 1st day of March 2024