Judge: Serena R. Murillo, Case: 19STCV30762, Date: 2022-09-20 Tentative Ruling
Case Number: 19STCV30762 Hearing Date: September 20, 2022 Dept: 29
William Seneviratne, et al. v. Dana Baldwin
Tuesday, September 20, 2022
Motion to Compel Non-Party’s Compliance with Deposition Subpoena and Request for Sanctions filed by Defendant Dana Baldwin
TENTATIVE
Defendant Dana Baldwin’s Motion to
Compel Non-Party Deposition and Compliance with Deposition Subpoena is DENIED.
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 non-party, 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 August 19,
2022, the Court noted 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 was no indication that Wilma had
been served with notice 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 was continued to allow defense
counsel to serve Wilma with notice of this motion.
However, because
the motion has still not been served on Wilma, the motion cannot be granted.
Conclusion