Judge: Steven A. Ellis, Case: 22STCV25230, Date: 2024-12-16 Tentative Ruling

Case Number: 22STCV25230    Hearing Date: December 16, 2024    Dept: 29

Bustamante v. 237 Windward LLC
22STCV25230
Plaintiff’s Motion to Compel Deposition of Nonparty Witness

Tentative

The motion is granted.

Background

On August 5, 2022, Plaintiff Oscar Dorantes Bustamante (“Plaintiff”) filed a complaint against Defendants 237 Windward, LLC, Skylight Residential Inc., Solari, and Does 1 to 100. The complaint alleges the cause of action for Negligence.  The complaint arises from an incident where Plaintiff fell through the floor and sustained injuries.

This case has a complicated procedural history, which the Court will not recount here.  (See Minute Order dated March 18, 2024.)

As is relevant here, Plaintiff filed a motion on July 31, 2024, to compel the deposition of nonparty witness Oswaldo Ocampo.  The motion was denied, without prejudice, on August 29, 2024, as Plaintiff had not filed a proof of personal service on the nonparty witness.

On September 4, 2024, Plaintiff filed a second motion to compel the deposition of Mr. Ocampo.  That motion was denied, without prejudice, for untimely service.

On October 29, 2024, Plaintiff filed this third motion to compel the deposition of Mr. Ocampo.  The motion was personally served on Mr. Ocampo on November 4, 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).)  

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

Plaintiff seeks to compel the deposition of nonparty witness Oswaldo Ocampo.

Mr. Ocampo was personally served with a subpoena requiring him to attend his deposition on April 10, 2024.  (Johnson Decl., ¶¶ 4-5 & Exhs. A-B.)

Although Mr. Ocampo confirmed that he would attend the deposition, he failed to appear on April 10, 2024.  (Id., ¶¶ 6-9 & Exhs. C-D.)  Mr. Ocampo did not respond to Plaintiff’s subsequent attempts to reschedule his deposition.  (Id., ¶ 10.)

Plaintiff filed this motion and served each party’s counsel.  Mr. Ocampo was personally served.  

All substantive and procedural requirements are satisfied.  Mr. Ocampo is a witness who does or may have information relating to the subject matter of the lawsuit.  He was duly served with a subpoena and must appear for deposition and testify.

The motion is granted.  

Conclusion

The Court GRANTS Plaintiff’s motion to compel the deposition of Oswaldo Ocampo.

The Court ORDERS nonparty Oswaldo Ocampo to appear, by Zoom, for deposition and answer questions under oath on January __, 2025, at 10:00 am.

Moving party is ordered to provide remote connection information to Mr. Ocampo and to counsel for all parties who have appeared in this action at least 48 hours prior to the deposition.

Moving party to give notice.