Judge Stephanie M. Bowick, Case Number: 23STCV17619, Date: 2024-12-12 Tentative Ruling

Judge: Stephanie M. Bowick, Case: 23STCV17619, Date: 2024-12-12 Tentative Ruling

Case Number: 23STCV17619 Hearing Date: December 12, 2024 Dept: 19

The matter came before the Court for hearing on December 12, 2024, in Department 19 of the Stanley Mosk Courthouse. The Court apologizes to counsel, but after some confusion at the hearing by the Court and upon further review, the tentative ruling by the Court has been revised. The Court will set February 3, 2025, at 8:30 a.m. for counsel to address the Court’s revised ruling.

REVISED TENTATIVE RULING

Plaintiffs’ Motion to Compel Kiara Janine Booker to Appear for a Deposition, filed on November 6, 2024, is DENIED without prejudice.

As a preliminary matter, the motion seeks to compel the deposition of “Kiara Janine Booker,” but the Court cannot determine whether “Kiara Janine Booker” is the same person as named defendant “Kara Booker.” While the declaration of Barry Zelner attached to the motion indicates that they are the same person, (Barry Zelner, ¶ 3; see Compl., ¶ 7), the motion seeks to compel compliance with a Deposition Subpoena for Personal Attendance served on “Kiara Janine Booker.” (See Motion, p. 3; Zelner Decl. at ¶ 7, Ex. 1.) A subpoena is not needed to take the deposition of a party witness; however, a subpoena must be used to take the deposition of a non-party witness. (Code Civ. Proc., §§ 2020.010(b), 2025.280(a), (b).) Plaintiffs also provide evidence that the Deposition Subpoena for Personal Attendance was personally served on “Kiara Janine Booker,” (Zelner Decl. at ¶ 7, Ex. 2), further suggesting that “Kiara Janine Booker” and “Kara Booker” are not the same person and that “Kiara Janine Booker” is a non-party witness. (See Cal. R. Ct., 3.1346 [“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.”].)

Next, the Court is not satisfied that the motion papers have been properly served.

The proof of service attached to the motion papers indicates that they were served electronically on (1) counsel for Defendant 1 Plus 1 Senior Care, Inc.; and (2) “Kiara Janine Booker.” However, no electronic service address is provided for “Kiara Janine Booker.” The Court notes that no defendant has yet appeared in the matter; thus, assuming “Kiara Janine Booker” and “Kara Booker” are the same person, it is unclear if Defendant Booker has counsel. An unrepresented party may not be electronically served unless the self-represented party affirmatively agrees otherwise. (See Code Civ. Proc., § 1010.6(c); Cal. R. Ct. 2.251(b); see also Cal. R. Ct., 2.253(b)(3).) To the extent that Defendant Booker has counsel, then the papers must be served on her counsel. Moreover, the proof of service does not state the electronic service address of the person making the service as required by Code of Civil Procedure section 1013b, subdivision (b)(1). Thus, the Court finds the proof of service attached to the motion papers is insufficient evidence that the motion papers were served on any person or entity.

In the event “Kiara Janine Booker” and “Kara Booker” are not the same person and “Kiara Janine Booker” is a non-party witness, then both the motion papers and the Deposition Subpoena for Personal Attendance needed to be personally served on “Kiara Janine Booker.” (Code Civ. Proc., § 2020.220(b)-(c), Cal. Rules of Ct., 3.1346; see Cal. R. Ct., 2.251(f)(2) [“A document may not be electronically served on a nonparty unless the nonparty consents to electronic service or electronic service is otherwise provided for by law or court order.”].) However, the proof of service attached to the motion papers only suggests that Defendant 1 Plus 1 Senior Care, Inc. may have been served. Nothing has been filed indicating that the motion papers were personally served on “Kiara Janine Booker” as required by California Rules of Court, rule 3.1346

Similarly, the Court is not satisfied that Plaintiffs have given proper notice of the hearing date.

On November 5, 2024, the Court granted Plaintiffs’ ex parte application and specially set the hearing. (November 5, 2024 Minute Order, p. 1.)

On November 6, 2024, Plaintiffs filed concurrently with the motion papers a “Notice of Ruling Re Motion to Advance Motion to Compel Against Kiara Janine Booker” (the “Notice of Ruling”). The proof of service attached to the Notice of Ruling indicates it was electronically served on attorney Tom M. Castonovo of Shaver, Korff & Castronovo LLP. However, as discussed above, assuming “Kiara Janine Booker” and “Kara Booker” are the same person and Plaintiffs are seeking to compel the deposition of a party, no defendant has yet appeared in the matter, and it cannot be determined whether Tom M. Castonovo represents Kiara Janine Booker/Kara Booker. If “Kiara Janine Booker” is a non-party witness, then the notice needed to be personally served on her. (Cal. R. Ct., 3.1346.) Moreover, as with the proof of service attached to the motion papers, the proof of service attached to the Notice of Ruling does not state the electronic service address of the person making the service as required by Code of Civil Procedure section 1013b, subdivision (b)(1) and therefore is insufficient evidence that the Notice of Ruling was served on any person or entity.

For these reasons, the motion is denied without prejudice.

Since no defendant has appeared in the matter, notice is not required under the circumstances. (Code Civ. Proc., § 1010.)