Judge: Steven A. Ellis, Case: 21STCV38210, Date: 2024-09-05 Tentative Ruling

Case Number: 21STCV38210    Hearing Date: September 5, 2024    Dept: 29

Queveda v. Rodziewicz
21STCV38210
Defendant’s Motion to Compel Nonparty Witness David Heskiaoff, M.D., to Appear for Deposition.

Tentative

The motion is DENIED.

Background

On October 18, 2021, Hernan Chavarria and Martha Lissette Quevedo (collectively “Plaintiffs”) filed a complaint against Laura J. Rodziewicz (“Defendant”) and Does 1 through 50 for negligence arising out of fall of an automobile accident occurring on October 7, 2020.

On July 11, 2022, Defendant filed her answer.

On August 5, 2024, Defendant filed this motion to compel David Heskiaoff, M.D., third party witness, to appear for deposition. Defendant also seeks sanctions.

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

Defendant issued a deposition subpoena to nonparty witness David Heskiaoff, M.D. on May 17, 2024 for a deposition on June 7, 2024. (Gardner Decl., ¶ 7 & Exh. D.)  Dr. Heskiaoff was personally served on May 23.  (Id., Exh. D.)  According to the process server, Dr. Heskiaoff ripped up the subpoena, referred to it as “toilet paper,” and stated that he would not “waste his time being deposed.”  (Vacca Decl., ¶ 5.) 

Dr. Heskiaoff did not appear for his deposition, and Defendant took a certificate of non-appearance.  (Gardner Decl., ¶ 10 & Exh. G.)

Defendant filed this motion to compel.  There is no proof of personal service of the motion on Dr. Heskiaoff, as is required by California Rules of Court, rule 3.1346.  The “caused to be served” proof of service attached to the motion is not sufficient proof of service. 

Absent proof of personal service, the Court must deny Defendant’s motion without prejudice.

Conclusion

The Court DENIES without prejudice Defendant’s motion to compel the deposition of nonparty David Heskiaoff, M.D.

Moving party is ORDERED to give notice.