TENTATIVE

Defendant Dana Baldwin’s Motion to Compel Non-Party Deposition and Compliance with Deposition Subpoena is GRANTED. Wilma is ordered to appear for deposition within 30 days of this order. The request for sanctions 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.

Plaintiff argues that counsel has worked in good faith to effect Wilma’s deposition but requests that the court deny Defendant’s motion and not compel Wilma to be deposed as Wilma suffers from post-traumatic stress disorder as a result of the collision. Plaintiff offers the declaration of licensed marriage and family therapist, who avers that when Wilma is forced to recount the events giving rise to this lawsuit and the effects on her son, such recounting imposes substantial trauma on Wilma. (Zeine Decl., ¶ 7.) Plaintiff also argues that Defendant does not explain why there is good cause to depose Wilma.

In reply, Defendant states it would accommodate Wilma’s alleged condition by allowing a mental health specialist to accompany Wilma’s and monitor her mental state, or only ask limited questions predetermined between Defendant and Wilma’s psychologist.

The Court finds there is good cause to depose Wilma, as she is a percipient witness and was at the scene of the incident immediately after it occurred. Plaintiff has failed to cite any authority that supports its argument that Wilma cannot be deposed due to her post-traumatic stress disorder. There may be some circumstances when the deposition of a mentally infirm individual presents concerns of undue burden or oppression. (Code Civ. Proc., § 2023.010, subd. (c).) However, the instant case is not that circumstance. Plaintiff’s evidence here does not show that Wilma is so infirm that a deposition is per se oppressive or unduly burdensome. Further, as Defendant has offered to accommodate Plaintiff by limiting her questions and allowing a mental health specialist to accompany her, the Court finds the motion should be granted. As such, because Wilma was personally served with a subpoena to appear for deposition, and notice of this motion through Plaintiff’s counsel, but failed to appear, Defendant’s motion is granted.  Wilma is ordered to appear for deposition within 30 days of this order.

However, Defendants’ request for sanctions is denied, as the Court finds the motion was not opposed in bad faith.

Conclusion

Accordingly, Defendant Dana Baldwin’s Motion to Compel Non-Party Deposition and Compliance with Deposition Subpoena is GRANTED. Wilma is ordered to appear for deposition within 30 days of this order. The request for sanctions is DENIED.

Moving party is ordered to give notice.