Judge: Upinder S. Kalra, Case: 21STCV08886, Date: 2022-08-15 Tentative Ruling

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Case Number: 21STCV08886     Hearing Date: August 15, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   August 15, 2022                                             

CASE NAME:            Carlos Garcia v. Rose Plumbing and General Contracting, Inc.

CASE NO.:                21STCV08886

PLAINTIFF’S MOTION TO COMPEL DEPOSITION OF NON-PARTY AND PRODUCTION FO DOCUMENTS AT DEPOSITION

MOVING PARTY: Plaintiff Carlos Garcia

RESPONDING PARTY(S): None as of August 10, 2022

REQUESTED RELIEF:

1.      An order compelling Non-Party Mr. Willner to attend deposition and produce documents

2.      Sanctions against Non-Party Mr. Willner

TENTATIVE RULING:

1.      Motion to Compel Deposition of Non-Party and Production of Documents at Deposition is GRANTED.

2.       Request for Sanctions against Non-Party Mr. Willner is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On March 5, 2021, Plaintiff Carlos Garcia (“Plaintiff”) filed a complaint against Defendant Rose Plumbing and General Contracting, Inc., dba Larry & Joe’s Plumbing Supplies (“Defendant”). The complaint alleged 9 causes of action based on discrimination and retaliation in violation of FEHA. The complaint alleges that while working for Defendant, he sustained injuries to his back, neck, and head after falling off a ladder. Plaintiff requested a short medical leave; however, Defendant contacted Plaintiff about his intent to resign, which Plaintiff denies. After informing Defendant that he was not resigning and wanted to return to work, Defendant terminated Plaintiff.

On May 7, 2021, Defendant filed an Answer.

The current Motion to Compel Deposition of Non-Party Matthew Willner, and Production of Documents at Deposition was filed on May 19, 2022. No Opposition has been filed as of August 10, 2022.

LEGAL STANDARD

A party seeking discovery of a non-party may do so through an oral deposition under Chapter 9, a written deposition under Chapter 11, or a deposition “for production of business records and things under Article 4.” CCP § 202.010.

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”¿ CCP § 2025.010. 

Personal service of a deposition subpoena obligates any resident of California to appear, testify and produce whatever documents or things are specified in the subpoena, and to appear in any proceedings to enforce discovery. (Code Civ. Proc., § 2020.220, subd. (a)-(c).) 

A subpoena for a deposition of a non-party is enforceable by a motion to compel compliance brought pursuant to Code of Civil Procedure section 1987.1. This section provides that “[i]f a subpoena requires the attendance of a witness . . . the court, upon motion reasonably made … or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order … 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.”  

“Subject to Sections 2025.270 and 2025.610, an oral deposition may be taken as follows: (a) The defendant may serve a deposition notice without leave of court at any time after that defendant has been served or has appeared in the action, whichever occurs first.  (b) The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date.”¿ CCP § 2025.210.¿ “An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.”¿ CCP § 2025.270(a). 

“The party who prepares a notice of deposition shall give the notice to every other party who has appeared in the action. The deposition notice, or the accompanying proof of service, shall list all the parties or attorneys for parties on whom it is served.”¿ CCP § 2025.240(a).¿ “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action . . . to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”¿ CCP § 2025.280(a). 

“Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”¿ CCP § 2025.410(a).  If an objection is made three calendar days before the deposition date the objecting party must make personal service of such objection pursuant to CCP § 1011 on the party that gave notice of the deposition.  CCP § 2025.410(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.” CCP § 2025.480(a). Along with that motion, which shall be made no later than 60 days after the completion of the record of the deposition, the party must provide a meet and confer declaration under Section 2016.040. CCP § 2025.480(b).

Service:

The Proof of Service attached to the Motion indicates that both Defendants and Non-Party Mr. Willner were served via email and via hand delivery/personal service.

ANALYSIS:

Plaintiff moves to compel a non-party Mr. Matthew Willner, the president and owner of Rockstar Plumbing.

Factual Background:

Plaintiff asserts claims against his former employer, Defendant Rose Plumbing and General Contracting, including wrongful termination. Defendant claims that Plaintiff provided a verbal two week notice and Mr. Willner confirmed that Plaintiff worked for Rockstar Plumbing.

On April 5, 2022, counsel for Plaintiff contracted Mr. Willner; after this conversation, Plaintiff’s counsel sent a declaration to Mr. Willner for his signature but has Mr. Willner has not contacted counsel. On April 14, 2022, Plaintiff issued a subpoena and personal service was obtained on April 24, 2022. The noticed deposition was scheduled for May 17, 2022, but Mr. Willner did not attend.

Plaintiff argues that under CCP §§ 2017.010 and 2025.010, he is entitled to take the deposition of non-party Willner, as a party who possess relevant information. Further under CCP § 1987.1 allows, a party can compel compliance with a deposition subpoena. A reasonable good faith attempt to resolve the issues was made; Plaintiff contacted Mr. Willner via phone. After this conversation, Plaintiff sent a declaration for Mr. Willner to sign, but he failed to do so.

Plaintiff argues good cause also exists for seeking these documents. The deposition of Defendant’s designated Person Most Qualified provides that Plaintiff allegedly went to work for Mr. Willner. The deposition of Mr. Willner will either confirm or refute whether Plaintiff actually worked at Rockstar Plumbing for Mr. Willner.  

“Where [a] witness whose deposition is sought is not a party (or a ‘party-affiliated’ witness), a subpoena must be served to compel his or her attendance, testimony, or production of documents.” (Terry v. SLICO (2009) 175 Cal.App.4th 352, 357). Here, Plaintiff is seeking attendance of Mr. Willner as well as production of documents. Under CCP § 2020.510, a party who seeks both attendance and documents must:

(1) Comply with the requirements of Section 2020.310,

(2) Designate the business records, documents, electronically stored information, and tangible things to be produced either by specifically describing each individual item or by reasonably particularizing each category of item.

(3) Specify any testing or sampling that is being sought.

(4) Specify the form in which any electronically stored information is to be produced, if a particular form is desired.”

Code Civ. Proc., § 2020.510(b) does not require an affidavit establishing good cause to produce documents.

Under CCP § 2020.310, the subpoena must provide the time and place for the deposition, the nature of the deposition, the “rights and duties of the deponent” and any penalties for disobeying the subpoena. Here, the deposition subpoena is attached to the Declaration of Michael Walker, Exhibit C. This exhibit contains the letter sent to Mr. Willner, which indicates when the deposition will take place – May 17, 2022, at 10:00 am via Zoom – and the reason for the deposition – to obtain testimony regarding interactions with the Plaintiff. Additionally, the deposition notice indicates that disobedience with the subpoena “may be punished as contempt by this court” and he will be liable “for the sum of $500 and all damages,” as well as provides the rights and duties of the deponent, i.e. the deponent can read the written record and change incorrect answers, can receive witness fees and mileage as well as and to produce documents.

Plaintiff has served a valid subpoena that requests relevant information. Plaintiff also has complied with the requirements for obtaining the deposition and documents from a non-party; Plaintiff contacted Mr. Willner multiple times in an attempt to obtain, first, a signed declaration, and later, his attendance at the deposition along with documents.

Sanctions:

Plaintiff’s notice motion indicates that he is seeking monetary sanctions against Mr. Willner, for failure to comply with the subpoena without substantial justification, pursuant to CCP § 2020.240 and 1992. Plaintiff seeks sanctions totaling $1,697. This is based on the $500 penalty pursuant to CCP § 2020.240 and 1992. An additional $450.10 was spent on hiring a Court Reporter. (Ex. G to Dec. Walker). The time spent on the current motion was 2.5 hours of work. Plaintiff’s counsel’s hourly rate is $275. Lastly, Plaintiff seeks $60 for the filing fee. The Court finds that sanctions in the amount of $1,000 is reasonable.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            The Motion to Compel Deposition of Non-Party is GRANTED. Sanctions in the amount of $1,000 is ordered payable within 30 days of service of this order.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             August 15, 2022                      __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court