Judge: Steven A. Ellis, Case: 22STCV11875, Date: 2023-08-16 Tentative Ruling

Case Number: 22STCV11875    Hearing Date: March 12, 2024    Dept: 29

Defendants’ Motion to Compel Compliance with Deposition Subpoena

Tentative

The motion to compel is granted.

The request for sanctions is denied.

Background

This action arises out of an incident in which Plaintiff Paula Livas (“Plaintiff”) alleges that she fell and sustained severe injuries on August 3, 2021, after her foot was caught by a protruding nail on the floor in her home. Plaintiff alleges that the dangerous condition that caused her injury was the result of (among other things) negligent work in her home performed by defendants.

On April 7, 2022, Plaintiff filed the Complaint in this action asserting causes of action for negligence and negligent hiring, supervision, and retention against Defendants P.W. Stephens Environmental, Inc. (“PWSE”), Mike Jabbour (“Jabbour”), and Does 1 through 50. After Jabbour’s demurrer was sustained with leave to amend, Plaintiff filed her First Amended Complaint (“FAC”) on August 8, 2022.

PWSE filed its answer to the FAC on September 9, 2022. After Jabbour’s demurrer to the FAC was overruled, Jabbour filed his answer on February 14, 2023. (PWSE and Jabbour are collectively referred to as “Defendants.”)

On December 29, 2022, Defendants issued a Deposition Subpoena for Production of Business Records (the “Subpoena”) to non-party 360 Wellness Physical Therapy (“360”).  (Burkholder Decl., ¶ 2 & Exh. 2.) The Subpoena was personally served on 360 on January 9, 2023.  (Id., Exh. 3.) Plaintiff served objections to the Subpoena but did not file a motion to quash or any other motion challenging the Subpoena, whether in whole or in part.  (Id., ¶ 3 & Exh. 4.) 

360 did not produce any records or otherwise comply with the Subpoena.  (Id., ¶ 3.)  Defendants reached out to 360 in an attempt to meet and confer, but 360 did not respond. (Id., ¶ 7.) 

On March 30, 2023, Defendants filed this motion for an order compelling 360 to comply with the Subpoena.  Defendants also seek sanctions.

Neither 360 nor Plaintiff has filed any opposition to this motion.

The hearing was initially set for February 7, 2024, and was continued to March 10.

Defendants have filed proof of personal service of both this motion and the notice of continuance. 

Legal Standard

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.¿ (Code Civ. Proc., § 2020.010.)¿ A deposition subpoena may command either: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and 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 service of a deposition subpoena shall be effected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.¿ (Code Civ. Proc., § 2020.220, subd. (a).) Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies. (Code Civ. Proc., § 2020.220, subd. (c).) A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness. (Code Civ. Proc., § 2020.240.) A motion to compel compliance with a deposition subpoena must be made within 60 days after completion of the deposition record, the date objections are served, or the date specified for production, and be accompanied by a meet and confer declaration. (Code Civ. Proc., §2025.480, subd., (b); Board of Registered Nursing v. Super. Ct. (2021) 59 Cal.App.5th 1011, 1032-1033.) 

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f 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.” 

California Code of Civil Procedure section 1987.2, subdivision (a) provides that in making an order under section 1987.1, “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.” 

Discussion

Defendants properly served a subpoena for the production of business records on nonparty 360.  Nonparty 360 did not comply.

Defendants have shown good cause for the production of the requested records.  Plaintiff has not filed any opposition to this motion to compel.

Therefore, the Court GRANTS Defendants’ motion to compel compliance with the subpoena.

Defendant’s request for sanctions is DENIED.  California Code of Civil Procedure section 1987.2, subdivision (a) provides for an award of sanctions, in the court’s discretion, “if the court finds the motion was made or opposed in bad faith or without substantial justification.”  Here, 360 did not oppose the motion, and so the Court cannot make a finding that the motion was opposed in bad faith or without substantial justification.

Conclusion

The Court GRANTS Defendants’ motion to compel compliance with the subpoena.  

The Court ORDERS nonparty 360 Wellness Physical Therapy to comply in full with the subpoena and to produce the requested records within 14 days of notice,

Defendants’ request for sanctions is DENIED.

Moving party is ORDERED to give notice.