Judge: Nathan Vu, Case: 20-01127166, Date: 2022-08-29 Tentative Ruling

Motions to Quash

On  06/06/2022, Defendant Gary Freedline filed two motions to quash (ROA #269 and #270).  The two motions appear to be identical and appear to relate to the same subpoena duces tecum dated 04/27/2022 addressed to Cox Communications.

On 08/03/2022, Plaintiffs Gary Larson and Handy Randy filed objections to both motions, asserting that they had not been served with the motions, among other issues.

The two motions were set on different hearing dates – 08/22/2022 and 08/29/2022.  The Court heard the first motion on 08/22/2022, at which counsel for Plaintiffs renewed the objection that they had not been served.

Defendant had submitted on the Court’s tentative ruling and had not appeared.  Therefore, the Court continued the matter to 08/29/2022, to be heard with the other motion, and set an Order to Show Cause re: Service of Motion to Quash Discovery Subpoena.

At the hearing on 08/29/2022, the Court will continue the hearing on both motions and allow Plaintiff to cure the defects stated below.

If the defects are not cured, the Court will deny both motions and vacate the continued hearing date.  If the defects are cured, the parties may file oppositions and replies based on the continued hearing date and the Court will hear the motions on the merits on the continued hearing date.

Defendant Gary Freedline’s Motions to Quash Subpoena for Business Records for Cox Communications (ROA 269 & 270) are defective in several respects:

1. The Notice of Motion and Memorandum of Points and Authority on both motions are unsigned, in violation of Civil Procedure Code section 128.7(a).

2. The Attorney’s Affidavit in Support of Motion to Quash Deposition  Subpoena for Production of Business Records contained in both motions is unsigned and therefore has not been sworn under oath, in violation of Civil Procedure Code section 2012.

3. The proof of service attached to both motions is unsigned and Plaintiff therefore did not file a valid proof of service no later than 5 days before the hearing, in violation of Rules of Court Rule 3.1300(c).

4. The proofs of service do not state on what date the motions were served.  The proofs of service only state that the motions were served in “May” but do not include a day or year.

Rules of Court Rule 2.257(a) allows the use of electronic signatures.  However, subsection (b) lays out the requirements:

When a document to be filed electronically provides for a signature under penalty of perjury of any person, the document is deemed to have been signed by that person if filed electronically provided that either of the following conditions is satisfied:

(1) The declarant has signed the document using an electronic signature and declares under penalty of perjury under the laws of the state of California that the information submitted is true and correct. If the declarant is not the electronic filer, the electronic signature must be unique to the declarant, capable of verification, under the sole control of the declarant, and linked to data in such a manner that if the data are changed, the electronic signature is invalidated; or

(2) The declarant, before filing, has physically signed a printed form of the document. By electronically filing the document, the electronic filer certifies that the original, signed document is available for inspection and copying at the request of the court or any other party.

The requirements of Rule 2.257 have not been met as there is no signature or sign of a signature on the motions.

Plaintiff shall give notice of this ruling.