Judge: Randall J. Sherman, Case: 2021-01234635, Date: 2023-08-11 Tentative Ruling

Plaintiffs’ Motion to Compel Deposition Testimony and Production of Documents of Steve Rebeil is granted.  Steve Rebeil must appear for his deposition within 30 days and produce the documents requested in the deposition subpoena, subject to Rebeil serving written objections to the document requests within five days of this ruling.  Plaintiffs’ request for monetary sanctions against Rebeil in the amount of $4,650 is granted, payable within 30 days.  Plaintiffs’ alternative request for the setting of an OSC re Contempt is moot.

Plaintiffs have satisfied their burden of showing that they personally served Rebeil with the deposition subpoena.  Their proof of service establishes a rebuttable presumption of effective service.  Evid. Code §647.  Rebeil’s Declaration denying service potentially rebuts the presumption, but the reply Declaration of Mike Melendez, the process server, overcomes Rebeil’s attempted rebuttal.  Rebeil’s Declaration simply denied he was personally served and asserted he had no knowledge of the deposition subpoena.  The Melendez Declaration replied that Rebeil had been avoiding service by not answering his door on prior occasions when service was attempted, but that on March 9, 2023 at 8:40 a.m., Melendez personally served Rebeil with the deposition subpoena and request for documents by placing the documents on his windshield after approaching a man fitting Rebeil’s description in his vehicle at 20 Emerald Bay, Laguna Beach.  This explanation is not inconsistent with Rebeil’s denials, and Rebeil’s denials are not inconsistent with the explanation of service, because Rebeil might have felt that placing the documents on his windshield did not amount to personal service, and if he never looked at the documents, he might not have known there was a deposition subpoena.

The court in Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal. App. 2d 209, 213, held that placing a summons and complaint on a windshield wiper constitutes effective service.  The court noted, “Personal service usually contemplates actual delivery.  But the person on whom service is sought may not, by merely declining to take the document offered, deny the personal service on the ground of lack of delivery, where under the circumstances it would be obvious to a reasonable person that a personal service was being attempted.  In such a case the service may be made by merely depositing the process in some appropriate place where it would be most likely to come to the attention of the person being served.”  267 Cal. App. 2d at 212.  Thus, plaintiffs effectively served Rebeil with the deposition subpoena by placing the documents on his windshield.  The fact that Rebeil’s Declaration did not deny being at 20 Emerald Bay, Laguna Beach on March 9, 2023 at 8:40 a.m., the place, date and time shown on the proof of service, further supports the court’s conclusion.

Plaintiffs are entitled to monetary sanctions pursuant to CCP §1987.2(a).  Rebeil’s position lacks substantial justification.  The amount of sanctions requested is reasonable.

Plaintiffs are ordered to give notice of the ruling unless notice is waived.