Judge: Serena R. Murillo, Case: 21STCV07998, Date: 2023-04-27 Tentative Ruling
Case Number: 21STCV07998 Hearing Date: April 27, 2023 Dept: 29
TENTATIVE
Defendants’ unopposed motion to compel compliance with subpoena for
business records issued to David
Mottahedeh Chiropractic, Inc. is GRANTED. Defendants’
request for sanctions is DENIED.
Legal Standard
A
copy of a subpoena¿for business records¿must be served on all other parties who
have appeared in the action.¿(Code Civ.
Proc.
§ 2025.240(a).)¿
When a subpoena has been issued requiring the attendance of a
witness or the production of documents, electronically stored information, or
other things before a court or at the taking of a deposition, the court, upon
motion “reasonably made” by the party, the witness, or any consumer whose
personal records are sought, or upon the court's own motion after giving
counsel notice and an opportunity to be heard, may make an order quashing the
subpoena entirely, modifying it, or directing compliance with it upon those
terms and conditions as the court may specify. (See Code Civ. Proc. §
1987.1; Southern Pac. Co. v. Superior Court (1940) 15
Cal.2d 206.)
The court
can compel a witness’ compliance with a subpoena on such terms and conditions
as appropriate to protect parties or witnesses from “unreasonable or oppressive
demands”
including unreasonable violations of the right of privacy of the
person. (Code Civ. Proc., § 1987.1, subd. (a).)
For discovery purposes, information is relevant if it might
reasonably assist a party in evaluating the case, preparing for trial, or
facilitating settlement. (Gonzalez v. Superior Court (1995) 33
Cal.App.4th 1539, 1546.) Generally, all unprivileged information that is relevant to the
subject matter of the action is discoverable if it would itself be admissible
evidence at trial or if it appears reasonably calculated to lead to the
discovery of admissible evidence. (Code Civ.
Proc. § 2017.010; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.)
Discussion
Defendants move to compel David
Mottahedeh Chiropractic, Inc.’s compliance with their subpoena for
Plaintiff’s employment records.
Plaintiff has alleged a loss of earnings claim. (Victor
Decl., ¶ 3.) Plaintiff is self-employed at David Mottahedeh Chiropractic,
Inc. (Id.) On March 3, 2022, Defendants issued a deposition
subpoena on Mottahedeh Chiropractic. (Id., ¶ 4, Exh. A.) This
subpoena requests all employment records relating to Plaintiff. (Id.)
The production date was March 23, 2022. (Id.) The Custodian
has not provided the employment records as of the date of filing this motion. (Id.,
¶ 7.)
California
Rules of Court, rule 3.1346 requires a motion to compel compliance with a
deposition subpoena to be personally served on the non-party whose compliance
is sought. On December 6, 2022, Defendants filed proof
of service indicating that personal service of the motion has been made upon
David Mottahedeh Chiropractic, Inc. (Code Civ. Proc., § 1011 subd. (b);
California Rule of Court, rule 3.1346.) The Court notes that the
deposition subpoena was served upon David Mottahedeh Chiropractic,
Inc. and a Notice to Consumer was served on Plaintiff. (Victor Decl.,
Exh. A.) No response was made
before the production date lapsed, and Plaintiff has not filed an opposition objecting
to the subpoena. Thus, the Court grants the motion to compel compliance
with the deposition subpoena issued to David Mottahedeh Chiropractic,
Inc.
Sanctions
Defendants request
sanctions pursuant to CCP sections 2023.010 and 2023.030 for
the misuse of discovery. The request is
denied. In a recent case, City of Los Angeles v. PricewaterhouseCoopers, LLC
(2022) 84 Cal.App.5th 466, 504, the Court of appeal concluded that: "sections 2023.010 and 2023.030 do
not independently authorize the trial court to impose monetary sanctions for
misuse of discovery.” (Id.)
Defendants also request sanctions in the amount of $500 against David Mottahedeh Chiropractic Inc. under CCP
section 1992. Under
CCP section 1992, “[a] person failing to appear pursuant to subpoena or a court
order also forfeits to the party aggrieved the sum of five hundred dollars
($500), and all damages that he or she may sustain by the failure of the person
to appear pursuant to the subpoena or court order, which forfeiture and damages
may be recovered in a civil action.”
Defendants are
not entitled to a forfeiture fee, which is only recoverable in a separate civil
action. “The subpoenaing party can also file a civil action against the
witness who disobeys the subpoena to recover a forfeiture of $500, plus all
damages sustained as a result of the witness’ failure to attend.” Weil
& Brown, Civ. Proc. Before Trial, 8:618 (citing CCP §§2020.240,
1992). “However, as noted by the Supreme Court, this is an
impractical remedy: ‘The simple economics of modern litigation
essentially preclude such an action.’ [New York Times v. Superior
Court (1990) 51 Cal. 3d 453, 464].” Id. at 8:619. As
stated in the New York Times case “’contempt is generally the only
effective remedy against a nonparty witness.’ The monetary sanctions
under section 1992 are not effective as a practical matter. The maximum
sanction is a $500 forfeiture plus actual damages, and the party aggrieved by
the failure to make discovery can recover the sanctions only by bringing
an independent civil action. It would likely be a rare case in which a
civil litigant would impose on himself the additional burden of a separate suit
to recover a mere $500.”
Conclusion
Accordingly, Defendants’ motion to compel compliance with
subpoena for business records is GRANTED. Defendants’
request for sanctions is DENIED.
Moving party is ordered to give notice.