Judge: Steven A. Ellis, Case: 23STCV11758, Date: 2025-01-07 Tentative Ruling

Case Number: 23STCV11758    Hearing Date: January 7, 2025    Dept: 29

Reichman v. Weisman
23STCV11758
Plaintiff’s Motion to Compel Nonparty to Comply With Deposition Subpoena

Tentative

The motion is granted.

Background 

On May 24, 2023, Plaintiffs Jill and Howard Reichman filed a complaint against Defendants Brent Weisman and Does 1 through 50, asserting that one of the plaintiffs was injured after slipping and falling on property located on Alcott Avenue in Los Angeles.

On August 2, 2023, Defendant Weisman filed an answer.

Defendant Weisman stated in discovery that nonparty Alex Marroquin inspected and performed work on the walkway prior to the incident.  (Winkour Decl., at 7:8-11.)

Following a prior unsuccessful attempt, Plaintiffs issued a subpoena on September 18, 2024, to Mr. Marroquin requiring him to appear for deposition, testify, and produce documents.  (Winkour Decl., Exh. 1.)  The deposition was scheduled for November 5, 2024.  (Ibid.)   The deposition subpoena was personally served on Mr. Marroquin on September 22, 2024.  (Id., Exh. 2.)   Mr. Marroquin did not appear.  (Id., Exh. 4.)  Plaintiff’s counsel followed up with a letter to Mr. Marroquin regarding his nonappearance but received no reply.  (Id. at 8:1-3 & Exh. 5.)

On November 21, 2024, Plaintiffs filed this motion to compel.  Plaintiffs also seek sanctions.

Mr. Marroquin was personally served with the motion on December 8, 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).) 

“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.)

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).)

In addition, 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

Plaintiffs issued a deposition subpoena to nonparty Mr. Marroquin and arranged for personal service of the deposition subpoena on him.  (Winkour Decl., Exhs. 1-2.)  Mr. Marroquin did not appear for his deposition.  (Id., Exh. 4.) 

All substantive and procedural requirements for the motion are satisfied.  Nonparty Mr. Marroquin was personally served with the motion, but he did not file any opposition.

Accordingly, the motion to compel is granted.

Plaintiff’s request for sanctions is also granted.  The Court exercises its discretion to award the reasonable fees incurred by Plaintiffs in making the motion.  The Court sets fees in the requested amount of $660, based on two hours of attorney time, multiplied by a reasonable billing rate of $300 per hour for work of this nature, plus a $60 filing fee.

Conclusion

The Court GRANTS Plaintiffs’ motion to compel.

The Court ORDERS Nonparty Alex Marroquin to appear for deposition, answer questions under oath, and produce the requested documents, on February __, 2025, at 10:00 am, by video conference.

The Court ORDERS Plaintiffs to provide the link for the videoconference to all parties and to Mr. Marroquin at least 48 hours in advance of the deposition.

The Court GRANTS Plaintiffs’ request for sanctions.

The Court ORDERS Nonparty Alex Marroquin to pay monetary sanctions to Plaintiffs (through counsel) in the amount of $660 within 30 days of notice.

The Court ORDERS Plaintiffs to give notice.  This includes notice by personal service of the order on Nonparty Alex Marroquin.