Judge: Steven A. Ellis, Case: 22STCV37832, Date: 2024-08-09 Tentative Ruling

Case Number: 22STCV37832    Hearing Date: August 9, 2024    Dept: 29

Portillo v. Kogan
22STCV37832
Motion to Compel Further Deposition and Document Production From Third-Party Witness

Tentative

The Court will call this matter.

Background

On December 5, 2022, Stephany Marie Portillo (“Plaintiff”) filed the complaint in this action against Eugene Kogan (“Defendant”) and Does 1 through 50, asserting a cause of action for negligence arising out of a vehicle accident on December 8, 2020, at or near the intersection of Fairfax Avenue and Farmers Market Place in Los Angeles.

Defendant filed an answer on November 13, 2023.

Plaintiff received medical treatment at Centurion Surgical Center (“Centurion”).  (Mendoza Decl., ¶ 3.)  Defendant served a deposition subpoena on Centurion, and on March 25, 2024, Centurion produced a witness for deposition and produced certain records pursuant to the subpoena.  (Id., ¶¶ 4-5 & Exhs. B-C.)  Defendant contends that further testimony and document production is required. 

The parties met and conferred, but no agreement was reached.  (Id., ¶¶ 6-8 & Exhs. D-E.)

Defendant filed this motion to compel further testimony and document production on May 29, 2024.  Defendant also seeks sanctions.

Centurion did not file an opposition to the motion, but Plaintiff did file an opposition on July 9, 2024.  Defendant filed a reply on July 15.

The hearing was initially scheduled for July 22 but was continued (as a result of the cyber attack on Los Angeles Superior Court) to August 9.

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.)

“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.” 

Discussion

The Court identifies a threshold issue and requests to hear from counsel on this issue.

Where, as here, a party seeks an order compelling testimony and document production from a nonparty deponent, the notice of motion and all moving papers “must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”  (Cal. Rules of Court, rule 3.1346.)

The proof of service filed with this motion states that Centurion was served by personal service and electronic service.  The proof of personal service, however, is a “caused to be served” declaration which, without more, is not valid proof that the documents were actually served on the nonparty deponent.  And for electronic service to be valid, the deponent must have agreed to be served at the electronic service address on the record in the deposition.

The Court will hear from counsel.

Conclusion

The Court will hear from counsel.