Case Number: BC697461 Hearing Date: November 06, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ASSAEL HALLELUYAN,

Plaintiff(s),

vs.

JOANNA DICKSON, ET AL.,

Defendant(s).

Case No.: BC697461

[TENTATIVE] ORDER DENYING MOTION TO COMPEL APPEARANCE AT DEPOSITION

Dept. 3

1:30 p.m.

November 6, 2019

1. Background Facts

Plaintiff, Assael Halleluyan filed this action against Defendant, Joanna Dickson for damages arising out of an automobile accident. To date, Plaintiff has not been able to locate Defendant, and has not served Defendant with the summons and complaint.

2. Motion to Compel Deposition

a. History

On 8/28/19, Plaintiff served a deposition subpoena for personal appearance and production of documents and things on Defendant’s insurance carrier, AAA. Plaintiff served the subpoena on “John Doe – Security Guard.” The deposition was set for 9/23/19. AAA failed to appear at the deposition.

b. Parties’ Positions

Plaintiff moves to compel AAA to appear and seeks imposition of sanctions. Plaintiff contends AAA failed to appear for its properly noticed deposition.

AAA opposes the motion, arguing (a) service of the deposition subpoena on it was improper, and (b) Plaintiff was required to serve a Notice to Consumer on Defendant in order to satisfy the notice requirements and permit the deposition to go forward.

Plaintiff, in reply, argues the whole purpose of the subpoena is to locate Defendant, so serving a Notice to Consumer would not be possible. Plaintiff argues service of the subpoena on the security guard was proper under the circumstances.

c. Service of the Subpoena

Personal service of a deposition subpoena issued to a non-party is required, not service by mail. CCP § 2020.220(b)-(c). Service on a business entity may be made by delivering the subpoena to any officer, director or custodian of records (or any agent or employee authorized to accept service). CCP § 2020.220(b)(2).

Plaintiff purported to serve AAA by serving its security guard. A security guard is not one of the persons enumerated above. Plaintiff cites authority, in opposition to the motion, that concerns service of a summons and complaint. Plaintiff does not cite any authority in the context of a deposition subpoena propounded to a non-party. The Court finds service of the subpoena was not proper and did not require AAA to appear.

d. Notice to Consumer

In order to avoid additional disputes between Plaintiff and AAA, the Court will rule on the issue concerning the Notice to Consumer as well.

Special notice and procedures are required for production of the “personal records” of a “consumer” or employee, to protect that person’s right of privacy. The purpose is to give that person the opportunity to seek a court order to quash or limit the subpoena before the records are disclosed. CCP §§ 1985.3(e), 1985.6(e).

Personal records include records maintained by an insurance company. §1985.3(a)(1). Consumer means any noncorporate party. §1985.4. When seeking production of a consumer’s personal records, the subpoenaing party must serve a copy of the subpoena and a notice of privacy rights on the consumer before it serves the subpoena. §1985.3(e).

In this case, Defendant is clearly a consumer and AAA is an insurance company. The statute therefore applies, and Plaintiff must serve Defendant with a Notice of Consumer in order to obtain the records sought from AAA. The Court understands the frustration this creates. The purpose of the subpoena is to discover Defendant’s address, and Defendant cannot be served with the required notice if Plaintiff does not have Defendant’s address. Plaintiff fails, however, to cite any authority for the position that the notice requirements are waived under the circumstances, and the Court knows of none.

The motion to compel is denied on this additional ground as well.

e. Sanctions

AAA seeks imposition of sanctions in the event the motion is denied. Sanctions are appropriate per CCP §§2023.030 and 2025.480. AAA’s request for $1400 is reasonable, fully supported by AAA’s attorney’s declaration, and granted in full. Plaintiff and his attorney of record, jointly and severally are ordered to pay sanctions to AAA, by and through its attorney, in the amount of $1400, within twenty days.

Plaintiff is ordered to give notice.