Judge: Steven A. Ellis, Case: 20STCV22758, Date: 2024-09-06 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 
IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 
ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 20STCV22758    Hearing Date: September 6, 2024    Dept: 29

Conley v. Thornton
20STCV22758
Defendants’ Motion to Compel Nonparty Witness Spalding Multi-Specialty Surgery Center, LLC to Appear for Deposition.
Defendants’ Motion to Compel Nonparty Witness Mobin Medical Corporation dba Mobin Neurosurgery to Appear for Deposition.

Tentative

The motions are denied without prejudice.

Background

On June 16, 2020, Tilton Conley, II, (“Plaintiff”) filed a complaint against Latoya Lynn Tarver Thornton, J.B. Hunt Transport, Inc. (collectively “Defendants”), and Does 1 through 100, asserting causes of action for negligence, negligent hiring, supervision, and retention, negligent entrustment, and punitive damages arising out of an automobile accident occurring on July 30, 2018.  

On May 14, 2021, Defendants filed an answer.

On July 31, 2024, Defendants filed these two motions, seeking orders compelling nonparties Spalding Multi-Specialty Surgery Center, LLC (“Spalding”) and Mobin Medical Corporation dba Mobin Neurosurgery (“Mobin”) to appear for deposition. No opposition has been filed.

Legal Standard

“Any party may obtain discovery … by taking in California the oral deposition of any person, including any party to the action.”  (Code Civ. Proc., § 2025.010.)  The process by which a party may obtain discovery from a person who is not a party to the action is through a deposition subpoena.  (Code Civ. Proc., § 2020.010, subd. (b).) 

“A deposition subpoena may command any of the following: (a) Only the attendance and testimony of the deponent …. (b) Only the production of business records for copying …. (c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.” (Code Civ. Proc., § 2020.020.)

A nonparty must be personally served with a deposition subpoena.  (Code Civ. Proc., § 2020.220, subd. (b).)  Service must be completed “a reasonable time” in advance of the deposition and, when documents are requested, “a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce” the documents.  (Id., subd. (a).)

“If a deponent on whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent the sanctions described in Section 2020.240 [contempt and an action for civil damages under section 1992].” (Code Civ. Proc., § 2025.440, subd. (b).)

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”  (Code Civ. Proc., § 2025.480, subd. (a).)  “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Id., subd. (b).)

“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.  (Id., subd. (i).)

“[T]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Id., subd. (j).)  

In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines “[m]isuses of the discovery process” to include “[f]ailing to respond to or to submit to an authorized method of discovery.”  Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  (Id., § 2023.030, subd. (a).)

Except as specifically modified by the Civil Discovery Act, the provisions of Code of Civil Procedure sections 1985 through 1997 apply to deposition subpoenas.  (Code Civ. Proc., § 2020.030.)¿ 

Code of Civil Procedure section 1987.1, subdivision (a), provides: “If a subpoena requires the attendance of a witness or the production of books, documents, 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), 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 or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

Code of Civil Procedure section 1987.2, subdivision (a), states, in relevant part, that in connection with an order directing compliance with a subpoena, quashing it, or modifying it, “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.”¿ 

A motion to compel a nonparty to answer questions or produce documents “must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service.”  (Cal. Rules of Court, rule 3.1346.)

Discussion

Defendants file these motions to compel nonparties Spalding and Mobin to comply with deposition subpoenas.

On June 5, 2024, Defendants issued a deposition subpoena to Mobin for testimony and a deposition subpoena to Spalding for testimony and the production of documents.  (Wu Decls., ¶ 3 & Exhs. A.)  Both depositions were set for June 26.  (Id., Exhs. A.)  The subpoenas were personally served on both of the nonparties on June 6.  (Ibid.)

Subsequently, Defendants’ counsel communicated with Ryan Evans, counsel for the nonparties, and the depositions were rescheduled for July 17, 2024.  (Id., ¶¶ 4-6, 11-13 & Exhs. C-F, J-M.)  Counsel for the nonparties reached out on the morning of July 17 and stated that the depositions could not go forward due to “unforeseen circumstances.”  (Id., ¶¶ 8, 15 & Exhs. H, O.)  Neither Spalding nor Mobin appeared for deposition on July 17.  (Id., ¶¶ 9, 16 & Exhs. I, P.) 

Defendants filed these two motions on July 31.  According to the proofs of service, Defendants served Mr. Evans, counsel for the nonparties, by mail and email.  Defendants also served an agent for service of process for each nonparty by mail. 

That is not proper service.  Nonparties must be personally served with a motion to compel.  (Cal. Rules of Court, rule 3.1346.)  Mail service on an agent for service of process is not adequate.  Nor is mail or email service on counsel.  Mr. Evans has not appeared in this action for either of the nonparties, and a statement by counsel that he represents his clients is not the equivalent of a representation that he is authorized to accept personal service of a motion to compel on behalf of his clients.

Accordingly, the Court must deny these motions without prejudice.

Conclusion

The Court DENIES without prejudice Defendants’ Motion to Compel the Deposition of nonparty witness Spalding Multi-Specialty Surgery Center, LLC.

The Court DENIES without prejudice Defendant’s Motion to Compel the Deposition of nonparty witness Mobin Medical Corporation dba Mobin Neurosurgery.

Moving party is ORDERED to give notice.