Judge: Yolanda Orozco, Case: 21STCV38704, Date: 2022-10-04 Tentative Ruling

Case Number: 21STCV38704    Hearing Date: October 4, 2022    Dept: 31

MOTION TO COMPEL COMPLIANCE

 WITH NONPARTY SUBPOENA DUCES TECUM IS GRANTED

Background 

On October 20, 2021, Plaintiff Elmer Bruce, by and through his successor in interest Kynan Burce, filed a Complaint for Elder Abuse and Negligent Hiring and Supervision against California Care, Inc; Edward Melkumyan, and Does 1 to 250.

On June 30, 2022, Plaintiff moved for an order compelling nonparty Silver Years Healthcare, Inc.’s compliance with a deposition subpoena.

No opposition or reply 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 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 with 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(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(c).) A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness. (Code Civ. Proc., § 2020.240.) 

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 

Motion to Compel Nonparty Deposition

Plaintiff moves for an order compelling nonparty Silver Years to answer questions and produce records relating to Elmer Bruce pursuant to a deposition subpoena served on May 24, 2022. (Baladejo Decl. Ex. 1.) The Proof of Service shows that “Annie H.”, the custodian of records, was personally served with the deposition notice for Silver Years.

The deposition was scheduled for June 14, 2022, but Silver Years failed to attend and produce the requested documents and failed to file any objections to the deposition notice. Plaintiff asserts that to date, Silver Years has failed to produce any documents.

The Court finds that the Proof of Service on the custodian of records complies with the Code of Civil Procedure sections 2020.220 and 2020.410.00. Therefore, the deposition notice was properly served, and Silver Years failed to object or comply with the deposition notice. For this reason, Plaintiff’s motion to compel is GRANTED.

Sanctions

Plaintiff’s counsel also requests sanctions in the amount of $1,700.00 against Silver Years. Plaintiff’s counsel’s billing rate is $425.00 per hour. (Baladejo Decl. ¶ 6.) Plaintiff’s counsel asserts he “expended no less than 2 hours in connection with this motion” and anticipates spending an additional two hours reviewing any opposition and preparing a reply.

Seeing as no opposition has been filed, the Court awards sanctions in the amount of $637.50 for 1.5 hours of work. 

Conclusion 

Plaintiff’s Motion to Compel Compliance with Nonparty Subpoena Duces Tecum is GRANTED. 

The Court also GRANTS IN PART, Plaintiff’s motion for sanctions in the amount of $637.00 

Plaintiff to give notice.