Judge: Richard Y. Lee, Case: 30-2019-01069010, Date: 2022-12-07 Tentative Ruling

Defendant County of Orange’s Motion to Quash the Notice to Person Most Knowledgeable to Appear is GRANTED.

Defendant moves to quash a “Notice to Defendant County of Orange to Appear at Trial and Produce Documents” that was served on Defendant by Plaintiffs. (Exh. 1 to Libbey Decl. (ROA 327)).

Defendant contends that a Notice to Appear at Trial cannot be directed at a “Person Most Knowledgeable,” but must instead name the specific individual who is to appear. The court agrees.

CCP §1987(b) authorizes the use of a Notice to Appear in lieu of a subpoena of attendance before the court. That provision also states that “[t]he giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders . . . as in the case of a subpoena for attendance before the court.” (CCP §1987(b)).

In defining “subpoena,” CCP §1985(a) states that “[i]t is a writ or order directed to a person and requiring the person’s attendance at a particular time and place to testify as a witness.” (CCP §1985(a)(emphasis added)). CCP §§1985, et seq., which sets forth the procedures for subpoenas and notices to appear does not contain any procedure for subpoenaing a “person most knowledgeable” to appear at trial.

In contrast, the Discovery Act explicitly provides in connection with depositions that “[i]f the deponent is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (CCP §2025.230).

The authors of a leading treatise on civil trials are in accord. They observe:

“The “Notice to Attend” must specifically identify the particular person whose attendance at trial is desired. [See CCP § 1987]

“Compare—depositions: For depositions, so long as the subject matter of the examination is clearly stated in the deposition notice or subpoena, the entity, not the examiner, has the burden of producing the proper witnesses (CCP § 2025.230). But this is not the rule at trial.”

(Wegner, et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2022), ¶¶1:100:1-1:100:2 (emphasis in original)).

Moving Party to give notice.