Lawzilla Additional Information:
Per the Los Angeles court records we believe the tentative ruling below was adopted by the court as the final ruling.

Defendant is represented by attorney Tristan Orozco of Ford, Walker, Haggerty & Behar. Plaintiff represented by attorney Joan Brown of Brown, Brown and Brown.

Case Number: BC644995 Hearing Date: May 22, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA; MOTION DENIED

On December 23, 2016, Plaintiff Patricia Wade (“Plaintiff”) filed this action against Defendant Anabelle Harrison (“Defendant”) for motor vehicle negligence relating to a May 30, 2016 automobile accident.

In her complaint, Plaintiff claimed lost earnings and lost earnings capacity. (Declaration of Tristan C. Orozco, ¶ 3.) At the deposition of Plaintiff’s daughter, Plaintiff’s counsel indicated Plaintiff was waiving her loss of earnings claims. No mention was made regarding her lost earning capacity claim. (Orozco Decl., ¶ 5.) Defendant issued a subpoena on Long Beach Crew Center for Plaintiff’s employment records. (Orozco Decl., ¶ 7.) Defendant seeks to compel compliance with the deposition subpoena and monetary sanctions.

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 of 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 of Civ. Proc., § 2020.020.)

A service of a deposition subpoena shall be effected a 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 of Civ. Proc., § 2020.220, subd. (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 of Civ. Proc., § 2020.220, subd. (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 of Civ. Proc., § 2020.240.)

The court may, on motion or on the court’s own motion after giving notice and an opportunity to be heard, make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court shall declare, including protective orders. (Code of Civ. Proc., § 1987.1, subd. (a).)

On June 12, 2017, Plaintiff served responses to form interrogatories in which she claimed lost earnings as a result of the accident. (Declaration of Joan Benjamin Brown, ¶ 3.) On August 29, 2017, Plaintiff served supplemental discovery responses stating that she waived her loss of earnings claim. (Brown Decl., ¶ 5.) Plaintiff’s counsel requested that the subpoena for employment records be withdrawn, but Defense counsel argued the issue was not moot until Plaintiff amended her responses to form interrogatories. (Brown Decl., ¶ 6.) On September 14, 2017, Plaintiff served amended responses to form interrogatories stating she was not claiming either loss of earnings or earning capacity. (Brown Decl., ¶ 7; Exh. 5.) Based on defense counsel’s representation that the subpoena would be withdrawn after Plaintiff served amended form interrogatories, Plaintiff did not file a motion to quash the subpoena. (Brown Decl., ¶ 10.)

Upon receipt of this Motion, Plaintiff’s counsel emailed defense counsel and attached the previous email and explained she believed the subpoena would be withdrawn upon serving amended discovery responses. (Brown Decl., ¶ 8.)

The Court finds Plaintiff’s employment records are not at issue where Plaintiff has waived her claims to lost earnings and lost earning capacity. The Motion to compel compliance is DENIED and the subpoena is quashed.

In making an order under Section 1987.1, “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 or that one or more of the requirements of the subpoena was oppressive.” (Code of Civ. Proc., § 1987.2.)

Although Plaintiff should have been more diligent in filing a motion to quash prior to expiration of the deadline, defense counsel gave the impression that after Plaintiff amended her form interrogatories, the earnings claim would be moot and the subpoena would be withdrawn. As earnings are no longer at issue, this Motion to compel compliance with the deposition subpoena was not made with substantial justification. Accordingly, monetary sanctions are imposed against Defendant and Defendant’s counsel of record, jointly and severally, in the amount of $1,000.00 for two hours preparing the opposition and attending the hearing, at Plaintiff’s counsel’s rate of $500 per hour. This monetary sanction is to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.