Judge: Steven A. Ellis, Case: 21STCV37827, Date: 2024-08-19 Tentative Ruling

Case Number: 21STCV37827    Hearing Date: August 19, 2024    Dept: 29

Castanho v. Al-Marri
21STCV37827
Defendant’s Motion to Compel the Deposition and Production of Documents of Non-Party Witness Ann Holabird

Tentative

The motion is denied without prejudice.

Background

On October 12, 2021, Olivia Castanho (“Plaintiff”) filed a complaint against Mahamed Ahmad M.A. Al-Marri, Avid Budget Group, Inc., Avis Budget Car Rental, LLC, Budget Rent A Car System, Inc., Payless Car Rental, Inc., Budget Truck Rental LLC, Zipcar, Inc., and Does 1 through 50 for motor vehicle negligence and general negligence arising out of an automobile accident occurring on October 28, 2019.

On January 12, 2022, Avis Budget Group, Inc., Avis Budget Car Rental, LLC, Budget Rent A Car System, Inc., Payless Car Rental, Inc., Budget Truck Rental, LLC, and Zipcar, Inc. filed an answer. Avis Budget Car Rental, LLC, Budget Rent A Car System, Inc, Payless Car Rental, Inc. and Budget Truck Rental, LLC were dismissed on August 14, 2023.

On July 14, 2023, Mahamed Ahmad M.Z. Al-Marri (“Defendant”) filed an answer.

On May 10, 2024, Defendant filed this motion to compel the deposition and production of documents of Non-Party Witness, Ann Holabird. No opposition has been filed. This motion was initially set for hearing on July 11 and continued to August 19.

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).)  Personal service of the deposition subpoena on the non-party is required.  (Code Civ. Proc., § 2020.220, 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.)

“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).)  

“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.”  (Cal. Rules of Court, rule 3.1346.) 

Discussion

Defendant seeks to compel the deposition and production of documents of Non-Party Witness, Ann Holabird (“Holabird”). Holabird did not appear for her deposition on March 1, 2024; Holabird alerted Defendant that she did not have a signed authorization from Plaintiff as Plaintiff’s treating therapist, and thus would not appear for deposition. (Caponegri Decl., ¶¶ 4-6.)

Holabird was personally served with the deposition subpoena on February 13, 2024. (Exh. C.)

Holabird was not, however, personally served with this motion.  (See Supp. Caponegri Decl., ¶¶ 2-5.) That is required by California Rules of Court, rule 3.1346.  Absent such service on the non-party, the Court cannot grant the motion.

Therefore, the Court DENIES without prejudice Defendant’s motion to compel the personal appearance and production of documents of Ann Holabird.

Conclusion

The Court DENIES without prejudice Defendant’s motion to compel the personal appearance and production of documents from Ann Holabird.

Moving party to give notice.