Frederico Paredez v. Michael Todd Williams		CASE NO. 112CV230995
DATE: 8 August 2014	TIME: 9:00	LINE NUMBER: 4

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 7 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 8 August 2014, the motion of Defendant Michael Todd Williams to Compel Deposition of Linda Foltz of RegionalMedicalCenter and Request for Sanctions was argued and submitted.

Plaintiff filed formal opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[1]

Statement of Facts

Defendant is advised to include all relevant dates in their Memorandum or Declaration as the failure to do this makes the Court’s work in analyzing a case significantly more difficult.  Both Parties are advised to include a brief description of the cause of action in the cases.[2]

This action arises out of a motor vehicle accident which occurred on 26 August 2010, at First Street and San Fernando Street in San Jose, California. Plaintiff alleges that Defendant was driving a sports utility vehicle while intoxicated and rear-ended his motorcycle as he was stopped at a stoplight. Plaintiff claims that as a result of the accident he sustained physical injuries and his motorcycle was damaged.

Plaintiff filed a complaint on 23 August 2012.  Paragraph EX2 alleges

“. . . that Defendant has made a habit and custom of drinking alcohol to access to the point that he is legally drunk under the laws of the State of California; That [sic] he is well aware of his tendency to consume alcohol to excess. . . . That on the date of the collision in question, Defendant Michael Todd Williams did willfully and knowingly consumed great quantities of alcoholic beverage to the point of intoxication and drunkenness; and knowing full wellthat he was intoxicated from excess drinking of alcoholic beverages, did decide to operate and did operate his motor vehicle. . . .”

In the Case Management Statement filed on 26 December 2012, Plaintiff claims he suffered injuries to his back, ankle and neck and bad, as of that time, his medical expenses exceeded $75,000.

Plaintiff seeks, amongst other things, punitive damages.

Discovery Dispute

On 27 March 2013, Defendant served a records subpoena for billing records on RegionalMedicalCenter, a non-party to this action.  RegionalMedicalCenter failed to fully comply with this subpoena.

Subsequently, a deposition of Ms. Linda Folz (stated by Defendant to be the Person Most Knowledgeable regarding the billing for RegionalMedicalCenter) was noticed for 20 May 2014.  The moving papers do not identify how Ms. Foltz was identified as the PMK.

When the date of the deposition arrived, nobody from RegionalMedicalCenter came to the deposition.

The deposition was noticed a second time but never served due to the assurances of Regional Medical Center personnel that the records in question would be provided.  RegionalMedicalCenter never provided the records and the deposition was noticed and served for 27 June 2014.  Once again, nobody appeared for this deposition date.

Analysis

1. I.                  Motion to Compel Deposition

“Any of the following methods may be used to obtain discovery within the state from a person who is not a party to the action in which the discovery is sought: . . . .[a]n oral deposition. . . . .”Code of Civil Procedure, § 2025.010(a)(1).  “[T]he the process by which a nonparty is required to provide discovery is a deposition subpoena.”  Code of Civil Procedure, §§ 2025.010(b); 2025.280(b)[3].  The subpoena may compel a person to appear to testify [Code of Civil Procedure, § 2020.310(b)] or may compel the witness to produce business records for copying.  Code of Civil Procedure, § 2020.410(a).

If a nonparty is served with a deposition subpoena but fails to attend the deposition or refuses to be sworn in as a witness, a party that gave the notice may move for an order directing compliance with the subpoena and imposing such other terms or conditions as the judge considers appropriate.  See Code of Civil Procedure, § 1987.1.

Upon receipt of service of the subpoena, Linda Folz was required to appear and testify.  Ms. Folz’s failure to appear makes Defendant’s motion to compel Plaintiff’s appearance appropriate under § 2025.450(a).

Defendant’s Motion to Compel Deposition of Linda Foltz of RegionalMedicalCenter is GRANTED.  This person is directed to appear at a code compliant location of Defendant’s choosing within 20 days of the date of filing and service of this order.

1. II.                Monetary Sanctions

Defendant seeks monetary sanctions against Plaintiff for the failure of Linda Folz, a third party, to show up for a noticed deposition.

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  (See Rule of Court 2.30(a)-(c).)

In support of the request for sanctions, Defendant cites Code of Civil Procedure, § 2023.010.  Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

The party’s motion must also state the applicable rule that has been violated. (Id.).  Defendant has failed to cite any applicable authority.  What’s more, no authority exists to provide Defendant monetary sanctions against Plaintiff for the failure of a third party to appear at deposition.  As Defendant states in their own Memorandum, monetary sanctions are available against non-parties for misuses of the discovery process as per CCP § 2023. (See Sears, Roebuck & Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal. App. 4th 1342).  Pursuant to CCP § 1992, a “person failing to appear pursuant to a subpoena or a court order also forfeits to the party aggrieved the sum of five hundred dollars ($500), and all damages that he or she may sustain by the failure of the person to appear pursuant to the subpoena or court order, which forfeiture and damages may be recovered in a civil action.”  These sanctions are not mandatory. (See Code Civ. Pro. § 2025.440(b)).  Defendant has not requested any sanctions against non-party Linda Folz or RegionalMedicalCenter.

Defendant’s request for monetary sanctions is DENIED.

Plaintiff seeks monetary sanctions against Defendant in the amount of $250.  Since Defendant prevailed in the motion, the request of Plaintiff is DENIED.

Conclusion and Order

Defendant’s Motion to Compel Deposition of Linda Foltz of RegionalMedicalCenter is GRANTED.

Defendant and Plaintiff’s requests for monetary sanctions are DENIED.