Judge: Steven A. Ellis, Case: 22STCV29998, Date: 2025-04-22 Tentative Ruling

Case Number: 22STCV29998    Hearing Date: April 22, 2025    Dept: 29

Soto v. Shirian
22STCV29998
Defendant’s Motion to Compel Nonparty Ebi Nikjoo D.D.S. to Comply with Deposition Subpoena
Defendant’s Motion to Compel Nonparty Maurice Darvish, M.D., Brentwood Urgent Care to Comply with Deposition Subpoena

Tentative

The motions are denied without prejudice.

Background 

Two cases were filed arising out of a vehicle accident on December 30, 2021, at or near the intersection of Saticoy Street and Canoga Avenue in Los Angeles.

In the first filed case, on September 14, 2022, Michelle Soto (“Soto”) filed a complaint against Joseph Shirian (“Shirian”), Blas Alducin Dominguez (“Dominguez”), and Does 1 through 50 for motor vehicle negligence and general negligence.

On September 29, 2022, Dominguez filed an answer and a cross-complaint against Shirian and Roes 1 through 10.

On December 14, 2022, Shirian filed an answer and a cross-complaint against Soto, Dominguez, Mariana Diazzamora, and Roes 1 through 25.

In the second filed case, on December 14, 2022, Shirian filed a complaint against Soto, Dominguez, Mariana Diazzamora, and Does 1 through 50 for motor vehicle negligence and general negligence.

On November 9, 2023, Dominguez and Mariana Diaz Zamora (“Zamora”) filed an answer.

On July 28, 2023, Court related the two cases.  On May 3, 2024, the Court consolidated the two cases for all purposes.

On February 20, 2025, Soto dismissed her causes of action against Dominguez with prejudice.

On March 7, 2025, Defendant filed two discovery motions: (1) to compel nonparty Ebi Nikjoo, D.D.S. (“Nikjoo”) to comply with a deposition subpoena; and (2) to compel nonparty Maurice Darvish, M.D., Brentwood Urgent Care (“Darvish”) to comply with a deposition subpoena.

No opposition has been filed.

Legal Authority

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.)

“If the deponent is an organization, the subpoena shall describe with reasonable particularity the matters on which examination is requested” and must also “advise the organization of its duty to make the designation of employees or agents who will attend the deposition.”  (Code Civ. Proc., § 2020.310, subd. (e); see also Code Civ. Proc., § 2020.510, subd. (a)(1).)

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

Dominguez seeks orders compelling nonparties Nikjoo and Darvish to comply with deposition subpoenas to produce business records.

Dominguez issued the subpoenas to Nikjoo and Darvish on August 16, 2024, with a production date of September 9, 2024.  (Goodwin Decls., ¶ 2 & Exhs. B.) 

Dominguez has not, however, filed any proof that the subpoenas were personally served on Nikjoo or Darvish.

Moreover, Dominguez served the motions to compel on Nikjoo and Darvish by mail.  (Id., ¶ 4 & Exhs. D.)  Personal service is required.  (Cal. Rules of Court, rule 3.1346.)

Absent proof of personal service of the subpoenas on the nonparties and proof of personal service of the motions on the nonparties, the motions to compel are denied without prejudice.

Conclusion

The Court DENIES WITHOUT PREJUDICE the motion to compel Ebi Nikjoo, D.D.S. to comply with a deposition subpoena for the production of records.

The Court DENIES WITHOUT PREJUDICE the motion to compel Maurice Darvish, M.D., Brentwood Urgent Care to comply with a deposition subpoena for the production of records.

Moving party to provide notice.