David Barrios et al vs Uber Technologies Inc et al
Case No: 18CV00522
Hearing Date: Fri May 24, 2019 9:30

Nature of Proceedings: Motion to Compel Deposition Subpoena

TENTATIVE RULING:

The court continues the hearing on this motion to June 21, 2019, at 9:30 a.m. On or before May 31, 2019, moving party defendant Gerber Funes Solorzano shall file proof of service showing service of the moving papers on third party deponent Sansum Clinic. Also on or before May 31, 2019, moving party shall serve on Sansum Clinic the notice of non-receipt of opposition, filed May 17, 2019, and a copy of this order. On or before June 5, 2019, moving party shall file proof of service on Sansum Clinic of the notice of non-receipt of opposition and of this order. Sansum Clinic may file and serve opposition or other response to this motion on or before June 10, 2019. Moving party may file a reply, also served on Sansum Clinic, on or before June 14, 2019.

On April 16, 2019, defendant and cross-complainant Gerber Funes Solorzano filed this motion to compel third party deponent Sansum Clinic (Sansum) to comply with a deposition subpoena for the production of business records served on Sansum on December 20, 2018 (Leiner decl., ¶¶ 2, 3 & exhibits A, B). The motion alternatively requests issuance of an order to show cause why Sansum should not be held in contempt for failure to comply with the subpoena.

There is a procedural problem with the motion.

“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.” (Code Civ. Proc., § 2025.480, subd. (a).)

“Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing.” (Code Civ. Proc., § 2025.480, subd. (c).)

The proof of service attached to this motion states that the motion was served by mail on counsel for plaintiffs David Barrios and Maribel Barrios and on counsel for defendant Uber Technologies, Inc., on April 16, 2019. The attached proof of service does not provide any proof of service on Sansum. No separate proof of service on Sansum has been filed.

On May 17, 2019, Solorzano filed a notice of non-receipt of opposition from Sansum. The non-receipt of the opposition states that Sansum was personally served with a copy of the motion papers on April 22, 2019. (Notice, filed May 17, 2019, p. 2.) The notice does not attach proof of service on Sansum. Similarly, the proof of service attached to the notice of non-receipt of opposition does not show service on Sansum.

“Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (Rules of Court, rule 3.1300(c).)

Because timely proof of service has not been filed, the motion cannot go forward as now scheduled. The court will continue the hearing on this motion for the filing of proof of service and proof of service of the notice of non-opposition.