Judge: Steven A. Ellis, Case: 21STCV11137, Date: 2024-12-02 Tentative Ruling

Case Number: 21STCV11137    Hearing Date: December 2, 2024    Dept: 29

Gonzalez v. J&B Management
21STCV11137
Defendant’s Motion to Compel Nonparty to Produce Subpoenaed Documents

Tentative

The motion is denied.

Background

On March 22, 2021, Plaintiffs Carolina Gonzalez and Carlos Victor (Plaintiffs) filed a complaint against J & B Management, LLC (Defendant) and Does 1 through 25, asserting causes of action for (1) Premises Liability; (2) Loss of Consortium; and (3) Negligent Infliction of Emotional Distress.

On July 31, 2023, Defendant filed its Answer.

On October 29, 2024, Defendant filed the instant Motion to Compel Third-Party Document Production.

No opposition has been filed.

Legal Standard

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.” (Code Civ. Proc., § 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

Plaintiff Gonzales stated in verified discovery response that she received treatment from nonparty Eshagh Erza, M.D. (Dr. Ezra). (Matthews Decl., ¶ 3 & Exh. A.) Defendant issued a subpoena to Dr. Ezra for the production of business records, including medical records, imaging, correspondence, and billing records. (Id., ¶ 4 & Exh. B.) Dr. Ezra was personally served with the subpoena on December 11, 2023. (Id., ¶ 6 & Exh. B.)

On or about April 17, 2024, Dr. Ezra’s office produced a signed declaration stating that it had conducted a thorough search and located no documents responsive to the subpoena. The declaration states that “Radiological Firm/Images were … not take at this facility.” (Id., Exh. B.)

Defendant’s counsel used a third-party to follow up with Dr. Ezra’s office. (Id., ¶ 8 & Exh. C.) The unsworn report from the third-party, however, is hearsay and is not competent or admissible evidence.

On October 29, 2024, Defendant filed this motion. Dr. Ezra was personally served on November 4, 2024.

The motion to compel Dr. Ezra to comply with the deposition subpoena is denied. Dr. Ezra’s office provided a sworn statement that the office had no responsive documents. Defendant has not made any showing, supported by admissible evidence, that Dr. Ezra or the office is withholding documents that are responsive to the subpoena.

Conclusion

The Court DENIES Defendant’s motion to compel nonparty Dr. Ezra to produce subpoenaed documents.

Moving party is ordered to give notice.