Case Number: EC061267    Hearing Date: July 18, 2014    Dept: NCB

13. EC061267
JORGE ANDERSON v. HIEU TRAN et al
Motion to Compel Third Party to Comply with Subpoena and Appear

This case arises from the Plaintiff’s claim that the Defendants engaged in discrimination by refusing to allow him to bring his service dog into their supermarkets. Trial is set for September 22, 2014.

This hearing concerns the Plaintiff’s motion to compel a third party, Tri La, to comply with a subpoena. The motion does not explain why the Plaintiff seeks to depose Tri La and it does not offer any facts regarding his relationship to the parties in this case. It appears that Tri La is a security officer who is called “John” and who works for the Defendants

The correct legal authority for seeking an order to compel a third party to comply with a subpoena is CCP section 1987.1, which authorizes the Court to order a party to comply with a subpoena. However, the proof of service in this matter does not include facts demonstrating that Plaintiff served the pending motion on Tri La, the person against whom the Plaintiff seeks an order compelling him to appear at a deposition. Although the Plaintiff served the motion on opposing counsel, there are no facts demonstrating that Tri La, a third party, has agreed to accept service through counsel for the Defendants. There is no evidence that Tri La had notice of the motion, the hearing, or the Plaintiff’s request for an order imposing monetary sanctions on Tri La.
Accordingly, the Court denies the Plaintiff’s motion because it was not served on the third party.
As additional grounds to deny the motion, the Court finds as follows:

The Plaintiff’s motion includes facts in the declaration of his attorney, Glenn Murphy, who states that the deposition subpoena was served upon Tri La on April 8, 2014. The deposition was set for April 23, 2014. A copy of the subpoena is attached as exhibit 2 to the declaration.
However, a review of the subpoena reveals that it was not served on Tri La. Instead, the subpoena was served on someone named “John” at the Defendants’ supermarkets. The Plaintiff has not provided sufficient facts to demonstrate that Tri La is “John”. As noted above, the Plaintiff failed to present facts to explain the identity of Tri La and the reason for his deposition.
The Plaintiff also served notices for the deposition of Tri La. Copies of these notices are in exhibits 1, 3, and 4. A review of the proofs of service reveals that they were served on Defendants’ counsel. There is no evidence that Tri La, a third party, has agreed to accept service through counsel for the Defendants. Again, the Plaintiff has not offered sufficient facts to demonstrate that Tri La had notice that he was supposed to appear.
Accordingly, it is not possible to determine from the Plaintiff’s motion that the Plaintiff has ever served Tri La with a subpoena or a notice of deposition.

Glenn Murphy does provide facts in paragraphs 4 to 8 demonstrating that Tri La has not appeared for his deposition, despite numerous attempts to meet and confer with opposing counsel. These facts suggest that Defendants’ counsel may have agreed to produce Tri La for a deposition. But the Court finds no affirmative representation by Defendants’ counsel that her represents Tri La and is authorized to accept service on his behalf.

The Plaintiff also requested that the Court impose monetary sanctions of $3,630 on the Defendants and on Tri La. As noted above, the Plaintiff’s motion offers insufficient evidence to demonstrate that Tri La has ever been properly served with a subpoena or a notice of deposition. Since the Plaintiff has not established that Tri La received a subpoena or notice of deposition, the Court denies the request to impose monetary sanctions on Tri La.
Further, there are no grounds to impose monetary sanctions on the Defendants for the failure of a third party, Tri La, to appear for a deposition. Accordingly, the Court denies the request to impose monetary sanctions on the Defendants.

Accordingly, on the record before it, the Court denies the Motion to compel compliance with subpoena and denies the Plaintiff’s request for monetary sanctions because there is insufficient evidence to find that Tri La or the Defendants have engaged in the misuse of discovery.