Judge: Stephen P. Pfahler, Case: 22CHCV00755, Date: 2023-09-18 Tentative Ruling

Case Number: 22CHCV00755    Hearing Date: September 19, 2023    Dept: F49

Dept. F-49

Date: 9-19-23

Case # 22CHCV00755

Trial Date: Not Set

DEPOSITION SUBPOENA

MOVING PARTY: Plaintiff, Jose Diaz

RESPONDING PARTY: Unopposed/ Defendant Carlos Lara, Pro Per

RELIEF REQUESTED

Motion to Compel Compliance with the Deposition Subpoena

SUMMARY OF ACTION

On January 18, 2021, plaintiff Jose Diaz agreed to loan defendant Carlos Lara $40,000. The parties executed a written agreement. Plaintiff alleges Defendant defaulted on the terms, and the entire balance remains outstanding.

On September 12, 2022, Plaintiff filed a complaint for Recission, Fraud – Intentional Misrepresentation of Fact, Negligent Misrepresentation, Unfair Competition (Business and Profession Code section 17200), Conversion, Breach of Covenant of Good Faith and Fair Dealing, and Breach of Contract. Defendant, in pro per, filed a general denial on November 14, 2021.

RULING: Denied.

Plaintiff Jose Diaz moves to compel compliance with the deposition subpoena served on third party Petra Virgen. The motion is unopposed. The court electronic filing system shows no reply at the time of the tentative ruling publication cutoff.

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b) ... may make an order … directing compliance with it upon those terms or conditions as the court shall declare...” (Code Civ. Proc., § 1987.1, subd. (a).)

The subpoena was personally served by registered process server on January 25, 2023, for a February 13, 2023 deopsition. [Declaration of Aldo Flores, Ex. A.] Deponent failed to appear.

The proof of service of the motion indicates United States Postal service on the deponent. Petra Virgen is not an appearing party in the action. “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.” (California Rules of Court, rule 3.1346; See Code Civ. Proc., § 1010.6.) The motion provides no indication of an agreement by the nonparty deponent to accept service by mail or e-mail.

The unopposed motion is denied without prejudice, due to invalid service.

Case Management Conference set for December 6, 2023.

Moving party to give notice.