Judge: Steven A. Ellis, Case: 21STCV43266, Date: 2024-05-15 Tentative Ruling

Case Number: 21STCV43266    Hearing Date: May 15, 2024    Dept: 29

Plaintiff’s Motion to Compel the Deposition of Christina Neria

Tentative

The motion is denied without prejudice.

Background

On November 24, 2021, Sylvia Kizer (“Plaintiff”) filed a complaint against Nouman Fadel Hannoun, individually and dba Crestline Valero Market; Vicki Hannoun, individually and dba Crestline Valero Market; and Does 1 through 100, asserting causes of action for negligence and premises liability arising out of a trip and fall occurring on December 1, 2019.

On May 27, 2022, Nouman Fadel Hannoun, Vicki Hannoun, and Crestline Valero Market, filed an answer to the complaint and a cross-complaint against Roes 1 through 10.

Plaintiff noticed the deposition of Christina Neria, a former employee of Defendants, and personally served Ms. Neria with a deposition subpoena.  (Bourret-Roy Decl., ¶ 4 & Exhs. B-C.)  The deposition was scheduled for March 11, but Ms. Neria did not appear.  (Id., ¶¶ 4-5 & Exh. D.)  Plaintiff attempted to contact Ms. Neria but was not successful.  (Id., ¶ 6.)

On April 8, 2024, Plaintiff filed this motion to compel the deposition non-party witness, Christina Neria.  Plaintiff also seeks sanctions.

The hearing on this motion was originally scheduled for June 28, 2024.  On May 1, the Court granted the ex parte application of Plaintiff and advanced the hearing to May 15, 2024.

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).)  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).)  

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 moves to compel the deposition of non-party witness Christina Neria.

Ms. Neria was personally served with the deposition subpoena.  (Bourret-Roy Decl., ¶ 4 & Exhs. B-C.)  She was also personally served with motion papers on April 24, 2024.  (Proof of Service filed with Court on May 3, 2024.)

The motion was initially set to be heard on June 28, 2024.  On May 1, the Court advanced the hearing to May 15, 2024.

No proof of service has been filed showing that Ms. Neria was given notice that the motion would be heard on May 15, rather than June 28.

Accordingly, the motion is denied without prejudice for lack of service/proper notice.

Conclusion

Accordingly, the Court DENIES Plaintiff’s motion to compel the deposition of Christina Neria without prejudice.

Moving party to give notice.