Judge: Ronald F. Frank, Case: 19STCV00682, Date: 2023-01-19 Tentative Ruling
Case Number: 19STCV00682 Hearing Date: January 19, 2023 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: January 19, 2023
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CASE NUMBER: 19STCV00682
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CASE NAME: Donald Greene v. Komatsu Forklift Retail Operations, Inc., et al
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MOVING PARTY: Cross-Defendant/Cross-Complainant, Rack Us Up, Inc.
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RESPONDING PARTY: Non-Party Employer, who did not oppose the motion
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TRIAL DATE: August 2, 2023
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MOTION:¿ (1) Motion to Compel Lithographix, Inc. to Comply with a Subpoena Duces Tecum issued on July 28, 2022
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Tentative Rulings: (1) Assuming the Court is satisfied with Rack Us Up’s efforts to resolve this informally with Lithographix, and that moving party can satisfy the Court that “Stephanie” was authorized to accept service by e-mail, the Motion would be GRANTED.
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I. BACKGROUND¿¿¿
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A. Factual¿¿¿
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On May 24, 2017, Plaintiff Donald Green (“Plaintiff”) was working on a stand-up forklift at his place of employment at Lithographix, Inc. (“Lithographix”) when he allegedly lost control of the stand-up forklift, colliding into a nearby empty storage rack system. The rack allegedly penetrated the operator compartment, pinning the Plaintiff between the operator compartment of the stand-up forklift and a horizontal bar that was part of a shelf on the storage rack system, allegedly causing injuries to Plaintiff’s abdominal area and lower back. Plaintiff alleges that Defendant Rack Us Up, Inc. (“Rack Us Up”) was negligent in installing the shelving rack system that caused Plaintiff to be injured.
On August 8, 2022, Rack Us Up served a deposition subpoena duces tecum on Lithographix for, inter alia, all documents related to the incident and Plaintiff’s employment records at Lithographix (the “SDT”). Defendant, Rack Us Up argues that Lithographix’s response to the SDT was due on August 29, 2022. Rack Us Up contends that Lithographix has failed to respond at all to the SDT.
As such, Rack Us Up has filed this motion to compel Lithographix to comply with the SDT and for sanctions in the amount of $1,459.15 for Lithographix’s failure to comply with the third-party discovery process.
B. Procedural¿¿¿
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Cross-Defendant/Cross-Complainant, Rack Us Up, filed this Motion on September 26, 2022. No opposition has been filed.
¿II. MEET AND CONFER ¿¿¿
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On July 28, 2022, Counsel for Rack Us Up caused Array, its attorney service to issue the SDT upon Lithographix. (See Declaration of Kevin E. Lawless (“Lawless Decl.”), ¶ 2, Exhibit 1.) On August 8, 2022, Array served Lithographix with the SDT, which demanded production of all responsive documents on or before August 29, 2022 (Declaration of Tami Martinez, ¶ 5, Exhibit 2.) Rack Us Up claims that on numerous attempts, Derrinda Van Der Linden and Kristel Smith of Array attempted to contact Lithographix by number and email. To date, Rack Us Up claims that it has received no reply. As such, Rack Us Up has met its meet and confer requirements.
¿III. ANALYSIS¿¿
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A. Legal Standard
A deposition subpoena may command the production of business records without attendance at a deposition from a nonparty. (Code Civ. Proc., § 2020.020, subd. (b).) A deposition subpoena that requires only the production of documents “shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item…” (Code Civ. Proc., § 2020.410, subd. (a).) A deposition subpoena for the production of business documents need not be accompanied by an affidavit of good cause and must be directed at the custodian of records or other person qualified to certify those documents. (Code Civ. Proc., § 2020.410, subd. (c).) The responding party must comply with a deposition subpoena on a date that is no earlier than 20 days after the issuance or 15 days after service of the subpoena, whichever is later. (Id.)
A deposition subpoena is enforceable under Code of Civil Procedure section 1987.1. (Code Civ. Proc., § 2020.030.) After notice and opportunity to be heard, the Court may issue an order quashing the subpoena entirely, modifying it, or directing compliance with it upon terms and conditions as the Court may declare. (Code Civ. Proc., § 1987.1, subd. (d).) Courts also have the authority to protect the responding person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (Id.)
A nonparty’s failure to comply with a deposition subpoena may be punished for contempt under Chapter 7 (commencing with Section 2023.010) and may be subject to the forfeiture and payment of damages set forth in Section 1992. (Code Civ. Proc., § 2020.240.)
B. Discussion
The subject of this action is a personal injury that was allegedly caused by the negligent installation by Rack Us Up of a shelving system. Ltihographix is the plaintiff’s employer. The subject SDT seeks over 4 dozen categories of documents form Plaintiff’s employer.
Rack Us Up presents evidence that on July 28, 2022, Rack Us Up’s attorney service issued the SDT upon Lithographix. (Lawless Decl., ¶ 2, Exhibit 1.) Rack Us Up presents further evidence that on August 8, 2022, Array served the registered agent listed on the Secretary of State website for Lithographix with the SDT, which demanded production of all responsive documents on or before August 29, 2022 (Martinez Decl., ¶ 5, Exhibit 2.)
Rack Us Up is seeking to compel Lithographix’s compliance with the SDT pursuant to California Code of Civil Procedure section 1987.1. Code of Civil Procedure section 1987.1, subdivision (a), provides that if a subpoena requires the production of documents, the Court may, upon motion reasonably made by a party, make an order “directing compliance with it upon those terms or conditions as the court shall declare.” (See also Civ. Code Proc., § 2025.480, subd. (a) [providing that if a deponent fails to produce any document “that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that… production”].)
Rack Us Up notes that the motion was timely filed, and that Lithographix had not served any objections to the SDT. (Lawless Decl., ¶ 3.) Additionally Rack Us Up asserts that Lithographix’s response to the SDT was due on August 29, 2022. (Martinez Decl., ¶ 4, Exhibit 1.) As such, Rack Us Up notes that its deadline to file this Motion was on Friday, October 28, 2022. The motion was filed on September 26, 2022. As such, the motion is timely filed.
Next, Rack Us Up notes that Lithoraphix was properly served with the SDT. Pursuant to California Code of Civil Procedure section 2020.220(b)(2), service of a subpoena on an organization may be made to any officer, director, custodian of records, or to any agent or employee authorized by the organization to accept service of a subpoena. As noted in the Motion, Rack Us Up claims that on March 18, 2022, “Stephanie” at Lithographix spoke with Ryan Stenger at Array at which time Stephanie consented on behalf of Lithographix to accept service of process of a subpoena duces tecum via email at ihays@lithographix.com, Attn.: Irma Hays. (Martinez Decl., ¶ 4.) Rack Us Up further alleges that on August 8, 2022 at 11:19 AM, Steve Pearson of Array served the SDT via email to ihays@lithographix.com. (Martinez Decl., ¶ 5.) But there is no evidence before the Court that “Stephanie” had authority to accept service by e-mail or that Stephanie still works at Lithographix, or that there was any response or reply to the emailed documents. Moving party should be prepared to address these issues at the hearing.
C. Sanctions
Rack Us Up seeks sanctions against Lithographix in the amount of $1,459.15 for its failure to timely and completely respond to the Subpoena under Code of Civil Procedure sections 2020.240 and 2023.030. There is no evidence before this Court that Lithographix has counsel or that anyone from Rack Us Up spoke to anyone at Lithographix besides “Stephanie.” Under these circumstances, the Court is not inclined to award monetary sanctions.