Case Name: Cynthia Sewak vs Edward Stahl et al
Case No.: 17CV306703

The motion by Defendant to compel non-party Dennis Miller (allegedly the PMQ of Associated Air Balance and Certification “AABC) to appear for deposition is DENIED without prejudice.

First, the PMQ deposition subpoena for a deposition on October 10, 2018 was served on a person described as an “administrator” of AABC, who allegedly was authorized to accept service of process. It is unclear on what authority the process server concluded that she was authorized to accept service. (See CCP sec. 2020.220((b)(2).) Somebody at the company later identified Mr. Miller as the PMQ. Mr. Miller refused to agree to attend in the first instance, and would not agree to continue the date. The parties then agreed (without AABC’s or Mr. Miller’s consent) to continue the date of the deposition to November 8, 2018. Defendant mailed a copy of a revised deposition subpoena, now addressed to Dennis Miller instead of the PMQ of AABC. This deposition subpoena does not appear to have been personally served as is required to compel a non-party to appear for deposition. This motion is directed to the failure to attend the deposition on November 8, 2018, not the deposition on October 10, 2018. Absent personal service of a subpoena for the November 8, 2018 deposition date, the Court cannot grant a motion to compel.

A second defect in the motion is the manner of service of the motion itself. The motion was sent to Dennis Miller of AABC by mail. A notice of motion to compel directed to a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by some other method. (CRC, Rule 3.1346.) A motion seeking contempt sanctions must be personally served, in the same manner as service of summons. (Cedars-Sinai v. Sup. Ct. (Moore) (2000) 83 Cal.App.4th 1281, 1286-87; Koehler v. Sup.Ct. (2010) 181 Cal. App. 4th 115, 1169.)
The Code relied on to argue that monetary sanctions should be awarded do not apply, as section 2025.480(j) authorizes sanctions against a person who unsuccessfully opposes a motion. Here, no opposition has been filed. Section 2025.480(k) does not apply as there is no prior order to compel, and the witness is not a party. Section 2020.030 only refers back to the Evidence Code, and does not authorize sanctions. (If section 2023.020 is what is intended, personal service of the motion is required.)

Finally, any motion to exclude is quite premature. Defendant submitted no evidence that any party intended to rely on Dennis Miller’s testimony, or that he is in any other way a “party affiliated witness,” and Defendant provided insufficient authority that such an order would be appropriate. In any event, sanctions other than monetary sanctions are generally available only after an order granting a motion to compel.

Accordingly, the motion to compel is DENIED without prejudice. Defendant will need to start the process again with a properly served deposition subpoena.

Moving parties are to prepare the order.