Judge: Salvatore Sirna, Case: 23PSCV03151, Date: 2024-10-11 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 23PSCV03151    Hearing Date: October 11, 2024    Dept: G

Plaintiff Valerie Lee’s Motion to Compel Deposition of
Subpoenaed Witness David Su and Request for Monetary Sanctions

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff Valerie Lee’s Motion to Compel Deposition of
Subpoenaed Witness David Su is GRANTED.  David Su is ordered to appear for deposition
in thirty (30) days.

Plaintiff Valerie Lee’s Request for Monetary Sanctions
is DENIED.

BACKGROUND

This is a premises liability
action. In October 2022, Plaintiff Valerie Lee was playing on a playground at
Grazide Elementary School in Hacienda Heights when Lee fell and sustained injuries.

On October 11, 2023, Lee, by
and through guardian ad litem Oliver Lee, filed a complaint against Defendants
Hacienda La Puente Unified School District (HLPUSD); KCE Champions LLC (KCE
Champions), erroneously sued as Kindercare Learning Centers, LLC; and Does
1-50, alleging causes of action for (1) general negligence and (2) premises
liability.

On November 16, 2023, HLPUSD
filed a cross-complaint against KCE Champions and Roes 1-10, alleging the
following causes of action: (1) express indemnity, (2) breach of contract, and
(3) declaratory relief.

On September 16, 2024, Lee
filed the present motion. A hearing on the present motion is set for October
14, 2024, along with a post-mediation status conference/trial setting
conference on February 3, 2025.

ANALYSIS

Lee
moves to compel non-party witness David Su’s compliance with a deposition
subpoena. For the following reasons, the court GRANTS Lee’s
motion.

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.) Service of a deposition subpoena shall be done with
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).)¿ If a
deponent fails to appear or produce requested documents for a deposition, the
deposing party may file a noticed motion to compel deponent’s compliance. (Code
Civ. Proc., § 1987.1, subd. (a).)

Discussion

On
April 23, 2024, Lee served a deposition notice on Su for a deposition set on
May 29, 2024. (Shirazi Decl., ¶ 4, Ex. 3.) After staff for Lee’s counsel was
unable to confirm Su’s attendance at the deposition, Lee served an amended
notice of deposition with a new date of June 26, 2024. (Shirazi Decl., ¶ 5-8,
Ex. 4.) When staff for Lee’s counsel was unable to confirm Su’s attendance, Lee
served a second amended notice of deposition with a new date of August 19,
2024. (Shirazi Decl., ¶ 9-10, Ex. 5.) Staff for Lee’s counsel was unable to
confirm Su’s attendance and Su failed to attend the deposition on August 19,
2024. (Shirazi Decl., ¶ 13-14.) Because Su failed to comply with Lee’s
deposition subpoena, the court finds there is good cause to compel Su’s
compliance and GRANTS the present motion.

Lee
also requests the court impose monetary sanctions for Su’s failure to comply
with their deposition subpoenas pursuant to Code of Civil Procedure sections
2023.010 and 2025.450. As to Code of Civil Procedure section 2023.010, the
court notes this provision does not provide separate grounds for the award of
sanctions. (City of Los Angeles
v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504.) And as to
Code of Civil Procedure section 2025.450, the court notes this provision is
inapplicable here as it provides for the award of sanctions against party deponents
while Su is a non-party deponent. To the extent Lee may argue this provision
applies to Su as a former employee of one of the defendants, the court notes
the “requisite ‘party-affiliated’ relationship must exist at the time of the
deposition notice.” (Lopez v. Watchtower Bible & Tract Society of New
York, Inc. (2016) 246 Cal.App.4th 566, 600.) Lee has failed to present any
evidence that establishes Su was an employee of a party at the time Lee served
the deposition notices. Thus, the court DENIES Lee’s request for
monetary sanctions.

CONCLUSION

Based on the foregoing, Lee’s
motion to compel Su’s deposition is GRANTED and request for monetary
sanctions is DENIED.  Non-party Su
is ordered to appear for deposition in thirty (30) days.