Judge: Steven A. Ellis, Case: 23STCV25056, Date: 2025-02-18 Tentative Ruling

Case Number: 23STCV25056    Hearing Date: February 18, 2025    Dept: 29

H.W. v. Los Angeles Unified School District
23STCV25056
LAUSD’s Motion to Compel Nonparty Metro by T-Mobile to Comply with Subpoena
LAUSD’s Motion for Protective Order
LAUSD’s Motion for Relief under Code of Civil Procedure section 473

Tentative

The motion to compel Metro to comply with the deposition subpoena for the production of records is granted.

The motion for relief under Code of Civil Procedure section 473 for the untimely service of a notice to attend the deposition of Ms. Mendez in person is granted.

The motion for a protective order is denied without prejudice.

Background 

This case arises out of a tragic accident at a Los Angeles high school on September 13, 2022.  According to the allegations, Plaintiff H.W. and another student, her friend, overdosed.  H.W.’s friend died, and H.W. suffered injuries.

On October 13, 2023, H.W., by and through her Guardian Ad Litem, Amber Garza (“Plaintiff”) filed the complaint against Los Angeles Unified School District (“LAUSD” or “Defendant”) and Does 1 through 20. On January 18, 2024, Plaintiff filed the First Amended Complaint (“FAC”).  In the FAC, Plaintiff asserts what is presented as a single cause of action for negligence, but which also includes allegations of negligent hiring, supervision, or retention.

On July 3, 2024, Defendant filed an answer.

Currently set for hearing on February 18, 2025, are three motions.

First, on December 12, 2024, Defendant filed the motion to compel Metro by T-Mobile (“Metro”) to comply with a deposition subpoena for the production of records. No opposition has been filed. Proof of personal service of the motion on Metro was filed on December 23, 2024.

Second, on January 15, 2025, Defendant filed a motion for a protective order to bar Plaintiff from taking the deposition of Angel Mendez. Plaintiff filed an opposition on February 3, 2025. Defendant filed a reply on February 7, 2025.

Third, on January 15, 2025, Defendant filed a motion for relief under Code of Civil Procedure section 473 for its late notice of appearance for the deposition of Angel Mendez. No opposition has been filed.

Legal Standard

Compliance with Subpoena

“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 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).)

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.”

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.)

Protective Order

Code of Civil Procedure section 2025.420 states:

“(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the deposition not be taken at all.

(2) That the deposition be taken at a different time.

(3) That a video recording of the deposition testimony of a treating or consulting physician or of any expert witness, intended for possible use at trial under subdivision (d) of Section 2025.620, be postponed until the moving party has had an adequate opportunity to prepare, by discovery deposition of the deponent, or other means, for cross-examination.

(4) That the deposition be taken at a place other than that specified in the deposition notice, if it is within a distance permitted by Sections 2025.250 and 2025.260.

(5) That the deposition be taken only on certain specified terms and conditions.

(6) That the deponent’s testimony be taken by written, instead of oral, examination.

(7) That the method of discovery be interrogatories to a party instead of an oral deposition.

(8) That the testimony be recorded in a manner different from that specified in the deposition notice.

(9) That certain matters not be inquired into.

(10) That the scope of the examination be limited to certain matters.

(11) That all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copied, tested, or sampled, or that conditions be set for the production of electronically stored information designated in the deposition notice.

(12) That designated persons, other than the parties to the action and their officers and counsel, be excluded from attending the deposition.

(13) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way.

(14) That the parties simultaneously file specified documents enclosed in sealed envelopes to be opened as directed by the court.

(15) That the deposition be sealed and thereafter opened only on order of the court.

(16) That examination of the deponent be terminated. If an order terminates the examination, the deposition shall not thereafter be resumed, except on order of the court.”

Relief under Code of Civil Procedure section 473

Code of Civil Procedure section 473, subdivision (b) provides for both discretionary and mandatory relief.

As to discretionary relief, the statute states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him through his or her mistake, inadvertence, surprise, or excusable neglect.”  (Code of Civil Procedure § 473, subd. (b).) Where such an application for discretionary relief is made, the motion must be accompanied by a copy of the answer or pleading proposed to be filed; “otherwise the application shall not be granted.”  (Ibid.)  

The statute also provides for mandatory relief from dismissal, default, or default judgment:

“whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect … unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” 

(Ibid.)

A request for discretionary relief under section 473, subdivision (b), must be made (subject to certain exceptions) “within a reasonable time, in no case exceeding six months.”  (Ibid.)  A request for mandatory relief must be made within six months.  (Ibid.)

Discussion

There are three separate motions pending before the Court.  For ease of discussion, the Court addresses the two unopposed motions first, and then addresses the opposed motion for a protective order.

Compliance with Subpoena

Defendant seeks to compel nonparty Metro to comply with a deposition subpoena for the production of records. 

Defendant seeks the records of Plaintiff’s phone under the Metro account held in the name of Plaintiff’s father, Gregory Wheatly. Defendant contends the records are relevant to the drug transaction time and location, which is disputed.

Defendant served the subpoena for business records on September 24, 2024 for production on October 17, 2024. (Del Rio Decl., ¶ 4 & Exh. B.) On November 8, 2024, Metro objected to the subpoena arguing the date range was undefined and that because the records are that of a prepaid phone, a court order is required for the release of pre-paid records. (Exh. C.) Defendant contends the subpoena should be modified to the specific date range of August and September 2022, to satisfy Metro’s objection.

Defendant properly personally served Metro with this motion. 

Defendant has established that there is good cause for the production of the records of Metro relating to Plaintiff’s phone. Further, Defendant has met the procedural requirements of this motion.  No opposition has been filed.

Accordingly, Defendant’s motion to compel Metro to comply with the subpoena is granted.

Relief under Code of Civil Procedure section 473

Remote depositions and remote attendance at depositions are authorized by statute and rule and are commonplace.  (Code Civ. Proc., § 2025.310; Cal. Rules of Court, rule 3.1010.)  When a deposition is to be taken by remote means, an attorney may elect to attend in person at the same physical location as the deponent, provided that the attorney gives notice at least five court days before the deposition.  (Cal. Rules of Court, rule 3.1010(a)(3).) 

Here, Plaintiff noticed the deposition of Angel Mendez for January 17, 2025, by remote means.  Defendant served a notice of an election to appear in person at the location of the deponent, but because of the Eaton fire the notice was served four court days prior to the deposition (late by one court day).  Defendant seeks relief under Code of Civil Procedure section 473.

Plaintiff has not opposed this motion.

For good cause shown, the motion is granted.

Protective Order

Plaintiff, as noted above, noticed the remote deposition of Angel Mendez for January 17, 2025.  Defendant served a notice to appear in person at the deponent’s location, Plaintiff served an objection to the notice, and (for reasons that are not entirely clear) the personal appearance by Defendant’s counsel at the deposition did not occur.  Defendant filed this motion on January 15, two days before the deposition.  Defendant also appeared at the deposition remotely, and at Defendant’s request the deposition officer suspended the deposition under Code of Civil Procedure section 2025.470.

In its moving papers, Defendant seeks a protective order barring Plaintiff from taking the deposition until Defendant can confirm the location of the deposition so that counsel may be physically present under Code of Civil Procedure section 2025.310, subdivision (b).  it appears that Ms. Mendez (a former LAUSD employee) now resides in Oakland, and in its reply, Defendant states that it is willing to provide a location for the deposition to take place in northern California, on a weekend (so as not to disrupt the witness’s work schedule), and Defendant states that it has agreed to the appointment of a discovery referee (which Defendant says it will pay for).  (See Ruiz Reply Decl., ¶ 6.)

The Court understands that there are accusations in both directions regarding the conduct of opposing counsel.  Plaintiff contends (among other things) that Ms. Mendez will give favorable testimony; that Defendant is trying to obstruct Plaintiff’s legitimate effort to obtain relevant and potentially valuable witness testimony; and that Defendant’s counsel, in a prior meeting with Ms. Mendez, attempted to get the witness to alter or reframe her testimony.  Defendant contends (among other things) that Plaintiff is attempting to deprive it of its statutory right to attend a deposition in person and that Plaintiff is attempting to inflame or exacerbate the witness’s unhappiness with LAUSD and its counsel.  Adding to the complication are two additional factors: (1) Ms. Mendez has (according to both sides) reported that she is uncomfortable with one of LAUSD’s lawyers; and (2) in a separate case that involves some overlapping factual issues, the Court has sanctioned plaintiff’s counsel for misconduct in a deposition (counsel in this other case does not represent Plaintiff here).

Notwithstanding these complications, the statute governing a motion for a protective order is clear: the motion must “be accompanied by a meet and confer declaration under Section 2016.040.”  (Code Civ. Proc., § 2025.420, subd. (a).)  Such a declaration must “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (Code Civ. Proc., § 2016.040.)

No such declaration has been presented here.  Accordingly, the motion is denied without prejudice.

The Court understands that this ruling is unlikely to resolve the dispute.  For the consideration of counsel, the Court provides the following additional guidance.

First, regardless of the accusations being made and the conflicts between counsel for the parties, there is a mandatory statutory requirement for counsel to meet and confer before filing a motion for a protective order.  Personal animosities must be set aside in favor of professionalism.  In this context, and considering the history, before LAUSD files any other motion for a protective order regarding this deposition, the meet and confer must include a phone call, a videoconference, or some other form of real-time communication; letters and emails may be part of the process, but standing alone they are not sufficient.

Second, the Court does not know whether this witness will provide testimony that is helpful to Plaintiff, to Defendant, or helpful in part to each side.  Regardless, it does appear that Plaintiff and Defendant agree that her testimony is a proper subject of discovery in this case; whether her testimony is good or bad, helpful or unhelpful, Plaintiff appears to have a right to take this deposition, and each side will have a right to question her.

Third, the suggestion for the appointment of a discovery referee to oversee the deposition seems like a reasonable proposal, particularly if the referee can attend the deposition in person (and thus provide some buffer to minimize the conflict between the witness and LAUSD’s counsel).

Conclusion

The Court GRANTS LAUSD’s motion to compel Metro to comply with the deposition subpoena for the production of records.

The Court ORDERS Metro by T-Mobile ordered to produce the records relating to the phone number 213-336-8769, under account holder, Gregory Wheatley, for the time period of August 1 through September 30, 2022.

The Court GRANTS LAUSD’s motion for relief under Code of Civil Procedure section 473 for the untimely service of a notice to attend the deposition of Ms. Mendez in person.

The Court DENIES WITHOUT PREJUDICE LAUSD’s motion for a protective order.

Counsel for LAUSD is ordered to give notice.