Judge Serena R. Murillo, Case 21STCV13775 2023-04-20 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV13775, Date: 2023-04-20 Tentative Ruling

Case Number: 21STCV13775 Hearing Date: April 20, 2023 Dept: 29

TENTATIVE

Defendant’s motion to compel compliance with subpoena for production of records is CONTINUED for supplemental briefing. Plaintiff and/or Younessi are ordered to file a supplemental brief to address the evidence in the reply regarding the proof of service. Defendant may then respond. Deadlines to respond are pursuant to CCP section 1005(b).

Legal Standard

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.)

Evidentiary Objections

Ramin R. Younessi, APLC objects to the Declaration of Matthew Evans, along with all exhibits attached to the Reply, arguing it is improper to attach “new evidence” in reply as it deprives the opposing party of the ability to properly respond to the moving papers and violates due process, among other things.

The Court OVERRULES the objections, however, Plaintiff and Younessi will be afforded an opportunity to respond.

Discussion

Defendant moves to compel compliance with his subpoena for all records contained within Plaintiff’s Workers’ Compensation file, which was issued to Plaintiff’s former Workers’ Compensation attorney Ramin Younessi. Defendant contends he served a Deposition Subpoena for the Production of Records on September 28, 2021, with a production date of October 28, 2021. (Castillo Decl., Exh. A.) No records were produced.

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. The exhibit attached to the motion which includes the subpoena does not include a proof of service indicating Younessi was personally served with the subpoena. While Defendant attaches a proof of service in his reply, Plaintiff and Younessi have not been given an opportunity to respond to this new evidence. Moreover, the proof of service merely indicates that Tanya A. was served. However, there is no information regarding who she is, or how this would be sufficient to show personal service on Younessi. Nevertheless, the Court will CONTINUE the matter to allow supplemental briefing by the parties.

Sanctions

Defendant requests 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.5^th 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.)

Further, the Court will address sanctions under CCP section 2025.480(j) at the continued hearing date.

Conclusion

Accordingly, Defendant’s motion to compel compliance with subpoena for production of records is CONTINUED for supplemental briefing. Plaintiff and/or Younessi are ordered to file a supplemental brief to address the evidence in the reply. Defendant may then respond. Deadlines to respond are pursuant to CCP section 1005(b).

Hearing on Motion to Compel to Compel Compliance with Subpoena for Production of Records is continued to 06/21/2023 at 1:30 PM in Department 29 at the Spring Street Courthouse.

Moving party is ordered to give notice.