Judge: Serena R. Murillo, Case: 19STCV30762, Date: 2022-08-19 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

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IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV30762    Hearing Date: August 19, 2022    Dept: 29

TENTATIVE

Defendant Dana Baldwin’s Motion to Compel Non-Party Deposition and Compliance with Deposition Subpoena is CONTINUED.

Legal Standard

“Personal service of a deposition subpoena obligates any resident of California to appear, testify and produce whatever documents or things are specified in the subpoena; and to appear in any proceedings to enforce discovery.” (CCP § 2020.220(c).)

A subpoena for a deposition of a non-party is enforceable by a motion to compel compliance brought pursuant to Code of Civil Procedure section 1987.1. This section provides that “[i]f a subpoena requires the attendance of a witness . . . the court, upon motion reasonably made … or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order … directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (CCP § 1987.1.)

Further, Code of Civil Procedure section 1987.2(a) provides, in relevant part, that, in making an order on a motion to order compliance with a deposition subpoena, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification . . . .” (CCP § 1987.2(a).)

A nonparty deponent may be subject to contempt or monetary sanctions for disobeying a court order (Code of Civ. Proc., § 2025.480, subd. (k)) or for “flouting” the discovery process by suppressing or destroying evidence (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 476).  A nonparty may be punished by contempt (Code Civ. Proc., § 2020.240) or payment of $500.00 (Code Civ. Proc., § 1992). 

Discussion 

Defendant moves for a court order compelling Wilma Seneviratne, Plaintiff’s mother, to appear for a deposition, arguing that good cause exists because she is a percipient witness as she was at the scene of the incident immediately after it occurred. Defendant argues Plaintiff’s counsel agreed to represent Wilma for the deposition and agreed to produce her but never did. Defendant argues she served Wilma with a deposition subpoena, but Wilma failed to appear.

On December 3, 2020, Defendant noticed the deposition of Wilma for December 18, 2020; however, Plaintiff’s counsel requested the deposition be scheduled at a mutually agreeable date and offered to secure dates from Wilma. (Declaration of Rebecca T. Hariri, ¶¶ 3-4.) Despite many efforts, Plaintiff’s counsel was unable to secure a date for Wilma’s deposition. (Hariri Decl., ¶ 5.) Defendant’s counsel indicated that they would serve Wilma personally with a subpoena, via a private investigator. (Id.) Defendant again noticed the deposition of Wilma for October 28, 2021. (Id., ¶ 6.) However, Defendant was unable to locate Wilma to personally serve her with a valid subpoena. It appears she was evading service. On November 19, 2021, Defendant personally served Wilma with a Third Notice of Deposition and a Deposition Subpoena for Personal Appearance on January 26, 2022. (Id. ¶ 7.) On January 5, 2022, Plaintiff’s counsel communicated to Defendant’s counsel that Wilma was unable to attend the scheduled deposition. Despite Defense counsel’s good faith efforts to schedule her deposition for the past year, Wilma failed to appear for her properly noticed depositions. (Id., ¶¶ 4, 9.)

Plaintiff argues in opposition that Defendant has not produced a proof of service showing Wilma was personally served with the deposition subpoena. Instead, the proof of service indicates that it was served on “Atten: Elvis F. Downs” as a records supervisor for UCLA. While Plaintiff’s counsel believes that Wilma works for UCLA, there is no provision of law that allows personal service on a non-party witness by substitute service on their employer.

The Court notes a proof of service was filed on August 15, 2022, indicating that Wilma was personally served with a subpoena to appear for deposition on August 22, 2022. However, there is no indication that Wilma has been served with notice this motion. The Proof of Service attached to Defendant’s motion to compel nonparty Wilma’s deposition does not indicate that Wilma has been served with notice of this motion.  “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.)   

As such, the motion is CONTINUED 30 days to allow defense counsel to serve Wilma with notice of this motion.  New hearing date: September 20, 2022 at 1:30 pm.

Moving party is ordered to give notice.