Judge: Robert B. Broadbelt, Case: 19STCV44942, Date: 2023-03-29 Tentative Ruling

Case Number: 19STCV44942    Hearing Date: March 29, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Interinsurance Exchange of the Automobile Club   

RESPONDING PARTY:        Unopposed

Motion to Compel Compliance with Deposition Subpoena and Request for Monetary Sanctions

The court considered the moving papers filed in connection with this motion.  No opposition papers were filed.

DISCUSSION

Defendant Interinsurance Exchange of the Automobile Club (“Defendant”) moves the court for an order (1) compelling nonparty Robert Lewis (“Lewis”) to comply with the deposition subpoena personally served on him by Defendant on January 27, 2022, and (2) awarding monetary sanctions in favor of Defendant and against Lewis in the amount of $2,500.

The court finds that Defendant has not properly served the moving papers on Lewis and therefore denies Defendant’s motion without prejudice.

“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.”  (Cal. Rules of Ct., rule 3.1346.)

Defendant has filed two proofs of service with the court, both of which establish improper service on Lewis. 

First, on June 16, 2022, Defendant filed a proof of service showing that Lewis was served by mail, e-mail or electronic transmission, and messenger service.  The proof of service states that “[a] declaration by the messenger shall accompany this Proof of Service or be contained in the Declaration of Messenger below.”  (June 16, 2022 Proof of Service, p. 2:15-16.)  Defendant did not file a declaration of the messenger with its moving papers. 

Second, on March 6, 2023, Defendant filed a proof of service establishing that Lewis was personally served, on February 27, 2023, with (1) Defendant’s Notice of Motion and Motion to Compel Robert Lewis’s Compliance with Deposition Subpoena and Request for Monetary Sanctions, (2) Defendant’s AMENDED Notice of Motion and Motion to Compel Robert Lewis’s Compliance with Deposition Subpoena and Request for Monetary Sanctions, and (3) the notice of ruling on Defendant’s ex parte application to move the hearing date on its motion to compel.  (March 6, 2023, POS-040, ¶¶ 3-5.) 

However, the proof of service does not state that Lewis was personally served with the following papers filed in support of Defendant’s motion:  (1) “Memorandum of Points and Authorities in Support of The Exchange’s Motion to Compel Robert Lewis’s Compliance with Deposition Subpoena and Request for Monetary Sanctions,” (2) “Declaration of Preston B. Bennett in Support of The Exchange’s Motion to Compel Robert Lewis’s Compliance with Deposition Subpoena and Request for Monetary Sanctions,” and (3) “[Proposed] Order Granting The Exchange’s Motion to Compel Robert Lewis’s Compliance with Deposition Subpoena and Request for Monetary Sanctions,” all of which were filed on June 16, 2022, in support of Defendant’s motion.  While Defendant has properly served Lewis with the original and amended notice of motion and motion, Defendant has not presented evidence to the court establishing that Lewis was served with the supporting memorandum and declaration and the proposed order.  Importantly, the memorandum of points and authorities and Bennett declaration set forth the facts and evidence supporting the relief requested by Defendant, including the request for monetary sanctions against Lewis.  (Bennett Decl., ¶¶ 14, 18-19.)

Rule 3.1346 requires “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” to “be personally served on the nonparty deponent” unless the deponent agrees to accept service by mail or electronic service.  (Cal. Rules of Ct., rule 3.1346 [emphasis added].)  Here, Defendant has not provided evidence showing (1) that it has personally served all moving papers supporting its motion to compel, or (2) that Lewis has agreed “to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”  (Ibid.)

The court therefore finds that Lewis has not been properly served with this motion and denies Defendant’s motion without prejudice.

ORDER

The court denies defendant Interinsurance Exchange of the Automobile Club’s Motion to Compel Robert Lewis’s Compliance with Deposition Subpoena and Request for Monetary Sanctions, without prejudice to filing a new motion requesting this relief with a proper proof of service.   

The court orders defendant Interinsurance Exchange of the Automobile Club to give notice of this ruling.

IT IS SO ORDERED.

DATED:  March 29, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court