Judge: Richard Y. Lee, Case: 30-2021-01207317, Date: 2022-10-06 Tentative Ruling

Plaintiff, Zov’s Bistro II, Inc. (“Plaintiff”) moves for an order compelling Scott English Plumbing, Inc. to produce materials pursuant to the deposition subpoena for business records.

Plaintiff moves pursuant to Code of Civil Procedure section 2025.480 and contends that on May 16, 2022, Plaintiff served a

Deposition Subpoena for Production of Business Records on Scott English Plumbing, Inc. (“Scott English”) requesting production of business records on June 6, 2022 (the “Subpoena”); that Scott English did not produce documents; that on June 29, 2022, Plaintiff served Scott English’s agent for service a meet and confer letter; and that Scott English did not respond, has not objected, and has not moved to quash the Subpoena. Plaintiff asserts that there is good cause for the production of business records as Scott English is a plumbing company that was hired by Seabreeze Property Management on behalf of Defendant to repair the sewage backups that Plaintiff contends interfered with its use of its restaurant and that Scott English’s documents and emails regarding repairs made to the sewage backups will prove or disprove that the sewage backups caused property damage and interfered with Plaintiff’s restaurant.

Code of Civil Procedure section 2025.480(a) provides: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”

Code of Civil Procedure section 2025.480(b) states: “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” Code of Civil Procedure section 2016.040 provides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

Notice of a motion to compel answers or produce documents specified in a deposition notice or a deposition subpoena “shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice.” (Code Civ. Proc. §2025.480(c).)

“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.” (California Rules of Court, rule 3.1346.)

Here, Scott English is a nonparty deponent. The proof of service for the instant motion indicates that the moving papers were served “only by e-mail or electronic transmission” on attorneys at Stratman & Williams-Abrego and Whitney Petchul, counsel for Defendant, Stadium Lofts Community Association, as well as Joyce Yi at LegalZoom.com, Inc., Agent for Service for Scott English. (ROA 44.) Thus, the proof of service indicates that Scott English was not personally served with the instant notice of motion and motion to compel, and there is no indication that Scott English agreed to accept service by electronic service at an electronic service address specified on the deposition record, in accordance with Code of Civil Procedure section 3.1346. The Court notes that no opposition by Scott English has been filed. In turn, the Court questions whether a single emailed letter to Scott English’s Agent for Service establishes a reasonable and good faith attempt to meet and confer.

Based on the foregoing, the Court CONTINUES the motion to November 10, 2022 at 1:30 p.m. in Department W-15.

Plaintiff to file a proof of service establishing compliance with California Rules of Court, rule 3.1346 no later than nine (9) court days before the continued hearing date.

Plaintiff to give notice to all parties and to give notice by personal service on Scott English.