Judge: Michelle C. Kim, Case: 20STCV49008, Date: 2023-05-24 Tentative Ruling

Case Number: 20STCV49008    Hearing Date: May 24, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Defendant City of Los Angeles (“Defendant”) moves to compel non-party Dr. Urmen Desai’s deposition.  Defendant asserts that on November 9, 2022, Defendant noticed Dr. Urmen Desai’s deposition for November 21, 2022.  (Decl. Shapiro ¶ 3, Ex. A.) Defendant further asserts that on November 10, 2022, Dr. Urmen Desai (“Dr. Desai”) telephoned Defendant’s counsel, stating that he could not attend the November 21, 2022, deposition and that he would reach out to provide alternate dates. (Decl. Shapiro ¶ 6.)  Defendant’s counsel telephoned Dr. Desai’s office on November 14, 16, 17, 21, and 22 to discuss alternate dates and was told Dr. Desai was unavailable each time. (Decl. Shapiro ¶¶ 8, 10.)  

On November 23, Defendant filed this instant motion, motion to continue trial, motion to extend and complete discovery.

            In opposition, Plaintiff Carlos Arias (“Plaintiff”) argues that there is no evidence Dr. Desai was served with a subpoena to appear at the November 21, 2022, deposition. Plaintiff further argues that the proof of service attached to the Declaration of Maks Shaprio is blank and that Maks Shapiro lacks personal knowledge that Defendant personally served Dr. Desai with the notice and subpoena of the deposition. Plaintiff also argues that at the trial continuance hearing, the Court agreed to continue the trial to allow Defendant to conduct the deposition of Serinda Swan but did not leave fact discovery open for any other purpose. Additionally, Plaintiff argues that Defendant did not serve Dr. Desai with the instant motion.

            In reply, Defendant argues that Plaintiff’s opposition was untimely filed and served and should be disregarded. Defendant also attached an executed proof of service of the Notice of Video Conference Deposition of Urmen Desai, M.D. (Decl. Sanders ¶ 6, Ex. A.) Defendant further states that it served the instant motion on Dr. Desai by email. (Decl. Sanders ¶ 9.)

Where the witness whose deposition is sought is not a party (or a “party-affiliated” witness), a subpoena must be served to compel his or her attendance, testimony, or production of documents. (CCP §§ 2020.010(b), 2025.280(b).) Personal service is required, not service by mail. (CCP § 2020.220(b)-(c).) If a nonparty disobeys a depo subpoena, the subpoenaing party may seek a court order compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. (CCP § 2025.480(b); see Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.)

Here, Defendant did not subpoena Dr. Desai but rather served a notice of deposition. This is improper. Further, it is unclear from the proof of service included with the reply if Dr. Desai was served personally or by mail. Additionally, trial has been continued to allow Defendant to conduct the deposition of Serinda Swan but not for any other non-expert discovery purpose. (Min. Order, Dec. 6, 2022.)

Thus, the Court denies Defendant’s motion.

Defendant’s request for costs, attorney fees, and sanctions is denied.

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

                                                Dated this 24^th day of May 2023