Judge Ronald F. Frank, Case 19STCV04924 2023-02-16 Tentative Ruling

Judge: Ronald F. Frank, Case: 19STCV04924, Date: 2023-02-16 Tentative Ruling

Case Number: 19STCV04924 Hearing Date: February 16, 2023 Dept: 8

Tentative Ruling

HEARING DATE: February 16, 2023¿

CASE NUMBER: 19STCV04924

CASE NAME: Jeffery Cook v. Neutils, Inc., et al

MOVING PARTY: Defendant, Nautilus, Inc.

RESPONDING PARTY: None.

TRIAL DATE: None Set.

MOTION:¿ (1) Motion to Compel Deposition of Subpoenaed Non-Party Witness

Tentative Ruling: (1) Continue hearing to afford notice to Mr. Pritkin of the hearing

I. BACKGROUND¿

A. Factual¿

On February 14, 2019, Plaintiff filed this action against Defendants. Plaintiff’s action is a products liability case in which he alleges he suffered a traumatic brain injury resulting in loss of income and permanent loss of earning capacity. In response to Form Interrogatories, Plaintiff disclosed the identity of Larry Pitkin (“Mr. Pitkin”) as a witness who will support his loss of income claim. Nautilus, Inc. (“Defendant’) personally served Mr. Pitkin at his home with two deposition subpoenas yet Mr. Pitkin has failed to appear for deposition. Therefore, Defendant seeks an order finding Mr. Pitkin in contempt, compelling Mr. Pitkin to appear for deposition within 20 days of the date of the Court’s Order and allowing Defendant to serve the Order by registered mail or other method that confirms delivery of the Order at Mr. Pitkin’s home

B. Procedural

On January 17, 2023, Defendant filed this Motion to Compel the Deposition of Plaintiff’s Witness, Larry Pitkin. No opposition has been filed.

¿II. ANALYSIS ¿

A. Legal Standard

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.¿ (Code Civ. Proc., § 2020.010.)¿ A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.¿ (Code Civ. Proc., § 2020.020.)¿

A service of a deposition subpoena shall be affected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.¿ (Code Civ. Proc., § 2020.220, subd. (a).)¿ Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.¿ (Code Civ. Proc., § 2020.220, subd. (c).)¿ A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.¿ (Code Civ. Proc., § 2020.240.)¿

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 Court, Rule 3.1346.)¿

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” (Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-583.)

B. Discussion

Here, Defendant seeks an order compelling Plaintiff’s witness Mr. Pitkin to testify about Plaintiff’s claimed loss of income. Defendant notes that Mr. Pitkin was personally served with a deposition subpoena that required him to appear for deposition on September 8, 2022 at 4:00 p.m. (Declaration of Robert K. Shawhan (“Shawhan Decl.”) ¿ 3; Exhibit B.) However, Defendant notes that on September 7, 2022, the day prior to the scheduled deposition, Mr. Pitkin called and left a voicemail stating that he could not attend the deposition and wanted it to be continued. (Decl. of Cynthia A. Palin (“Palin Decl.”), ¿ 2) Counsel for Defendant claims she spoke with Mr. Pitkin by telephone and agreed to his request on the condition that Defendant would not have to serve Mr. Pitkin with a second deposition subpoena. (Palin Decl., ¿ 3) Defendant asserts that Mr. Pitkin agreed he would appear for deposition without service of a second subpoena and he would provide his available dates for the deposition within a few days. (Palin Decl., ¿ 4) Defendant contends it placed several phone calls to Mr. Pitkin requesting new dates for his deposition but Mr. Pitkin did not respond. (Palin Decl., ¿ 5)

Defendant claims that it had Mr. Pitkin personally served with a second deposition subpoena that required him to appear for a remote deposition on October 6, 2022 at 11:00 a.m. (Shawhan Decl., ¿ 4; Exhibit C.) However, Defendant notes that Mr. Pitkin did not appear for his deposition on October 6, 2022 and Defendant took a Certificate of Non-Appearance. (Shawhan Decl., ¿ 5; Exhibit D.)

Now Defendant argues that Mr. Pitkin’s failure to comply with two separate subpoenas that were personally served on him is punishable as contempt of court without the necessity of a prior order of court. Defendant requests the Court issue an order of contempt and order Mr. Pitkin to appear for deposition within 20 days of the date of the Court’s order.

Of the three methods of obtaining discovery from a person who is not a party to the action, the normal “process by which a nonparty is required to provide discovery is a deposition subpoena.” (Code Civ. Proc. § 2020.010.) Personal service of any deposition subpoena is effective to require any deponent who is a resident of California at the time of service not only to require the non-party witness to appear and testify at the deposition, but also the deponent's attendance at a court hearing to compel the witness to attend and to answer deposition questions. (Code Civ. Proc., § 2020.220.) If the non-party witness disobeys a deposition subpoena, she or he may be punished for contempt and/or be subject to monetary sanctions. (Id. § 2020.240.) However, the Court does not see any indication to Mr. Pritkin was given notice of the hearing on this motion to compel compliance with the deposition subpoena, even telephonic or mailed notice of any kind. Only the Plaintiff’s counsel’s name and address appear on the proof of service for this motion. Rule of Court, Rule 3.1346 requires personal service of the moving papers on a non-party deponent in circumstances such as these.

III. CONCLUSION

¿ For the foregoing reasons, Defendants’ Motions to Compel Mr. Pitkin’s Deposition is Continued until a date in March of 2023 to be discussed at the hearing to enable Mr. Pritkin to have notice of the pending motion to find him in contempt, or to facilitate his appearance at the deposition before that hearing.

¿¿

Moving party is ordered to give notice including personal service of notice on the non-party deponent.