Judge: Steven A. Ellis, Case: 21STCV34288, Date: 2023-07-20 Tentative Ruling
Case Number: 21STCV34288 Hearing Date: October 3, 2023 Dept: 29
TENTATIVE
The motions to compel are DENIED.
Discussion
According to the complaint, on or
about May 7, 2021, Plaintiff Omar Vizcaino was operating a motorcycle and
traveling on Downey Avenue when Defendants allowed or caused water or other
discharge to run into the road, causing Plaintiff’s motorcycle to lose traction
with the road, and/or causing Plaintiff to lose control of his motorcycle,
resulting in severe injuries to Plaintiff.
On September 16, 2021 Plaintiffs Omar Vizcaino and Cindy
Vizcaino (“Plaintiffs”) filed a complaint against Defendants Gonzalez Carpet
Cleaning, William J. Bond, Carolina Bond, Polina 2, LLC Paula Ponce, and Does 1
to 20 alleging causes of action for: (1) general negligence, (2) premises
liability, and (3) loss of consortium. On November 3, 2021, Plaintiffs named Ricardo
Gonzalez as Doe 1 and Miguel Gonzalez as Doe 2.
On November 8, 2021, Plaintiffs named Raymond Ponce as Doe 3.
The only Defendants who have appeared in this action to
date are Polina 2 (answer filed November 3, 2021) and Raymond Ponce (answer
filed February 7, 2022).
Proofs of reported substitute service have been filed as
to Defendants Gonzalez Carpet Cleaning (proof of service filed on October 12,
2021), Ricardo Gonzalez (January 12, 2022; May 15, 2023; and July 7, 2023), and
Miguel Gonzalez (January 12, 2022; May 15, 2023, and July 7, 2023). None of these Defendants has filed an answer
or otherwise appeared. Numerous attempts
to enter the defaults of Ricardo and Miguel Gonzalez have been rejected by the
Clerk’s office.
On September 8, 2023, the Court granted Plaintiffs motion
to compel the deposition of Ricardo Gonzalez.
Because Ricardo Gonzalez had not appeared, the Court treated him as a
non-party and granted the motion only after Plaintiffs submitted evidence that they
had personally served Ricardo Gonzalez with both (1) a deposition subpoena and
(2) notice of the motion to compel.
On August 14, 2023, Plaintiffs filed the two motions
before the Court seeking to compel the depositions of Miguel Gonzalez and
Gonzalez Carpet Cleaning (the “Deponents”).
Plaintiffs contend that they have properly served the
Deponents with the summons and complaint.
(Geragos Decls., ¶¶ 5 & 6).
Plaintiffs contend that they properly noticed the depositions of the
Deponents as parties to this action.
(Geragos Decls., ¶¶ 6 & 8.)
Plaintiffs contend that the Deponents did not appear for their noticed
depositions. (Geragos Decls., ¶¶ 6 &
8.) And Plaintiffs have filed proof of
personal service of the notice of motion and motion on the Deponents. (Filings of August 16, 2023.)
Plaintiffs’ motions are DENIED. Neither of the Deponents has appeared in this
action. Accordingly, for purposes of
compelling their depositions, the Court will treat them as non-parties. Non-parties must be properly served with a
deposition subpoena to compel their appearance at a deposition. Plaintiff did this with Ricardo Gonzalez but
not with Miguel Gonzalez and Gonzalez Carpet Cleaning.
Personal service of the motion to compel is also
necessary but, without the additional setp of proper service of a deposition
subpoena, it is not itself sufficient to support a motion to compel.
Conclusion
Plaintiffs’ two motions to compel
are DENIED.
Moving party is ordered to give
notice.