Judge: Steven A. Ellis, Case: 23STCV12414, Date: 2024-05-29 Tentative Ruling

Case Number: 23STCV12414    Hearing Date: May 29, 2024    Dept: 29

Motions to Compel Non-Party Docs Surgery Center to Comply with Two Deposition Subpoenas for Production of Business Records filed by Defendant Caliber Holdings, LLC.

Tentative

The motions are denied.

The request of Docs Surgery Center for sanctions is granted in part.

Background

On June 1, 2023, Louis Michael Javier and Maria De Jesus Javier (collectively “Plaintiffs”) filed a complaint against Ivan Ramon Martinez Perez, Wand Topco, Inc., and Caliber Holdings Corporation for general negligence and motor vehicle negligence arising out of an automobile accident occurring on June 15, 2021.

On September 18, 2023, Caliber Holdings, LLC (erroneously sued as Caliber Holdings Corporation) (“Caliber”) and Wand Topco, Inc. (“Wand Topco”) filed an answer.

On October 19, 2023, the Court, on the request of Plaintiffs, dismissed without prejudice the causes of action asserted against Wand Topco in the complaint.

On November 2, 2023, Ivan Ramon Martinez Perez filed an answer.

On October 10, 2023, Defendant Wand Topco issued a deposition subpoena to non-party Docs Surgery Center (“Docs Surgery”) for the production of business records relating to Plaintiff Louis Michael Javier.  (Dunkel Decl., ¶ 5 & Exhs. B-1.)  The subpoena was served on October 23, 2023.  (Id., Exh. B-1.)

On January 3, 2024, Defendant Wand Topco issued a deposition subpoena to Docs Surgery for the production of business records relating to Plaintiff Maria de Jesus Javier.  (Dunkel Decl., ¶ 5 & Exhs. B-2.)  The subpoena was served on January 16, 2024.  (Id., Exh. B-2.)

Docs Surgery produced some documents and objected to the production of other documents.  (Id., ¶¶ 6-8 & Exh. C; Fleming Decl., ¶ 7.)

On February 21, 2024, Defendant Caliber filed this motion to compel Docs Surgery to comply with the deposition subpoenas.  Docs Surgery filed an opposition on May 15, and Caliber filed a reply on May 21.

Legal Standard

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

Caliber seeks to compel compliance with a subpoena issued by a different entity, Wand Topco.  Absent evidence that Caliber and Wand Topco are the same entity, the Court must deny the motion on this basis alone: Caliber provides no authority or explanation as to why it has the authority to enforce (or not enforce) a subpoena issued by someone else.

Indeed, the subpoenas themselves appear to be void.  One of the subpoenas was issued by Wand Topco more than two months after it was dismissed.  Except in very limited circumstances not applicable here, a non-party cannot commence discovery, whether by subpoena or any other method of discovery authorized by the Civil Discovery Act.  The other subpoena was issued while Wand Topco was still a party, but it was served after Wand Topco was dismissed.  Once Wand Topco was dismissed, the subpoenas were no longer of any force and effect.  Docs Surgery had no obligation to produce documents pursuant to subpoenas issued by a dismissed party.  (Cf. Bates v. John Deere Co. (1983) 148 Cal.App.3d 40, 53 [“A person who was a party, but by dismissal ceased to be, is without legal standing as a litigant or as an appellant.”].)

Accordingly, the motions to compel are denied.

The Court need not reach, and does not reach, the disputed issue of whether the subpoenaed documents are within the scope of discovery under Code of Civil Procedure section 2017.010 and/or subject to an applicable privilege or other protection from disclosure.

The request of Docs Surgery for sanctions is granted in part.  Caliber has not acted with substantial justification in seeking to enforce subpoenas that are both void and issued by another entity.  The Court sets sanctions in the amount of $1,400, calculated based on counsel’s billing rate of $560 per hour multiplied by 2.5 hours of attorney time for drafting the opposition.

Conclusion

The Court DENIES Caliber’s motion to compel compliance with the two deposition subpoenas for the production of business records issued by Wand Topco to Docs Surgery.

The Court GRANTS in part the request of Docs Surgery for sanctions.

The Court ORDERS Caliber Holdings, LLC and its counsel of record Tyson & Mendes, LLP to pay monetary sanctions to Docs Surgery under the Civil Discovery Act and Code of Civil Procedure section 1987.2 in the amount of $1,400 within 30 days of the hearing.

Moving party to give notice.