Judge: Steven A. Ellis, Case: 23STCV02044, Date: 2023-11-20 Tentative Ruling

Case Number: 23STCV02044    Hearing Date: November 20, 2023    Dept: 29

TENTATIVE

Defendant’s motion to compel compliance with deposition subpoena is DENIED.

Background 

On January 31, 2023, Plaintiff Adela Garcia (“Plaintiff”) filed a complaint against Defendant Numero Uno Acquisitions, LLC (“Defendant”), asserting causes of action for negligence and premises liability, stemming from Plaintiff’s slip and fall while shopping at Numero Uno Market located at 4373 S Vermont Ave, Los Angeles, CA 90037.  Plaintiff alleges that bottles of fabric softener fell onto Plaintiff’s shoulder and hand causing her injuries.

On or about June 2, 2023, Defendant issued a deposition subpoena for the production of records to non-party Shin Imaging/Shin MRI, LLC (“Shin”).  (Pierce Decl., ¶ 2 & Exh. A.)  The subpoena was served on Shin on June 7, 2023.  (Ibid.)

On August 28, 2023, Defendant filed a motion to compel Shin to comply with the subpoena. No opposition has been filed.

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: (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).)¿ If a deponent fails to produce records pursuant to a subpoena, the party seeking the information may seek a court order compelling compliance with the deposition subpoena.  (Code Civ. Proc., § 2025.480.)¿

A “written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent 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.)¿

Discussion 

On June 7, 2023, Defendant served Shin with a deposition subpoena for production of business records. (Pierce Decl., ¶ 2 & Exh. A.)  Shin did not comply.  (Id., ¶ 4.) 

Defendant then filed this motion.  Defendant did not, however, serve Shin with the motion, as required.  (Cal. Rules of Court, Rule 3.1346.)¿ Rather, according to the proof of service, the motion was served on Plaintiff’s counsel only.

In the absence of proper service on the non-party against whom relief is sought, the Court DENIES the motion.

Conclusion 

The motion to compel is DENIED.

Defendant is ordered to give notice.