Judge: Serena R. Murillo, Case: 20STCV01839, Date: 2022-08-19 Tentative Ruling
Case Number: 20STCV01839 Hearing Date: August 19, 2022 Dept: 29
TENTATIVE
Defendant’s Motion to Compel
Deposition of Jessica Luna-Medina aka Luna Bay 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 Luna Bay, Plaintiff’s girlfriend at the time of the incident, to
appear for a deposition. Plaintiff’s
great uncle testified that Plaintiff was supposed to meet with and stay the
night with Luna on the date of the incident. Luna has also been identified in
Plaintiff’s written responses to discovery as having information about his
alcohol consumption prior to the incident. Luna is an important third-party
witness in this case and has been properly served with a deposition subpoena
and request for production of documents. Defendant argues that it served Luna with a deposition subpoena, but she failed to
appear.
On April 6, 2022, Luna was served with the subpoena
and first amended subpoena requiring her personal attendance and production of
documents at her deposition. (Kim Decl. ¶¶ 4-5; Exs. B-C.) On April 7, 2022,
via telephone, Luna confirmed that she would appear for her deposition
scheduled for April 11, 2022. Defense counsel thereafter sent her an email
containing the link for her scheduled deposition. (Id., ¶ 6; Ex. D.) On April
11, 2022, Luna did not appear for her deposition that she previously confirmed.
(Id., ¶ 7.)
The Court notes
that Luna was properly served with a subpoena to appear for deposition.
However, there is no indication that Luna has been served with notice this
motion. The Proof of Service attached to Defendant’s motion to compel nonparty
Luna’s deposition does not indicate that she 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 to September 20, 2022 at 1:30 pm to allow defense counsel to serve nonparty Jessica Luna-Medina with notice of this motion.
Moving party is ordered to give notice.