Case Number: BC545697 Hearing Date: March 05, 2018 Dept: 47

David Penilla, et al. v. Westmont Corporation d/b/a Wildwood Mobile Home Country Club, et al.

MOTION TO QUASH DEPOSITION

MOVING PARTY: Defendants Westmont Corporation d/b/a Wildwood Mobile Home Country Club, Mark Rutherford, Jo Davenport, and Jose Hernandez

RESPONDING PARTY(S): No opposition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs are residents of a mobile home park. Plaintiffs alleges that Defendants have failed to maintain the common areas. Plaintiffs also allege a series of unrelated acts of rudeness and intimidation by various Defendants as well as refusal to approve buyers of Plaintiffs’ mobile homes.

Defendants Westmont Corporation d/b/a Wildwood Mobile Home Country Club, Mark Rutherford, Jo Davenport, and Jose Hernandez move for an order that the deposition subpoenas directed to Gay Rutherford and Francisco Garcia are quashed and/or a protective order accomplishing the same.

TENTATIVE RULING:

Defendants Westmont Corporation d/b/a Wildwood Mobile Home Country Club, Mark Rutherford, Jo Davenport, and Jose Hernandez’s motion to quash the deposition subpoenas served on Gay Rutherford and Francisco Garcia, and request for sanctions, is DENIED.

DISCUSSION:

Motion To Quash Deposition Subpoenas

Defendants move to quash the deposition subpoenas directed to Gay Rutherford and Francisco Garcia on the ground that Rutherford is a principal of Defendant Westmont Corporation, and Garcia is an employee of Defendant Westmont Corporation. As such, these individuals are party-affiliated witnesses who are represented by Citron & Citron, and any discovery sought by Plaintiffs relative to Rutherford or Garcia must be conducted through the discovery process and Defendant Westmont Corporation’s counsel of record.

CCP § 2025.420(b)(1) provides in relevant part:

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the deposition not be taken at all.

Defendants have not cited any authority that service of a deposition subpoena upon a party-affiliated witness is improper. Normally, service of a deposition notice is sufficient to compel the deposition of a party-affiliated witness. However, a deposition notice is insufficient to confer jurisdiction over a nonparty, so a deposition subpoena is required to compel a nonparty’s deposition. Nonetheless, it does not appear that serving a deposition subpoena upon a party-affiliated witness is per se improper. Rather, it appears that doing so is simply more than is necessary:

There is no need to serve a deposition subpoena on an opposing party in order to take that party’s deposition. Proper service of notice of deposition compels the opposing party to appear, to testify, and to produce documents if requested. [CCP § 2025.280(a)]

a. [8:517] “Party-affiliated” witnesses: Nor is a deposition subpoena required to compel the attendance and testimony of a person who, although not a named party, is either an officer, director, managing agent or employee of a party. [CCP § 2025.280(a)]

. . .

(3) [8:519] Notice does not confer jurisdiction over nonparty: The requirement that an “officer, director, managing agent or employee” appear for deposition without necessity of subpoena does not mean that such persons are subject to the court’s personal jurisdiction. Rather, it means that it is the responsibility of the party to produce such persons for deposition (or risk the sanctions discussed below).

¿ [8:520] PRACTICE POINTER: If there is any question as to the witness’ present “affiliation” with a party, don’t rely on a deposition notice to compel that person’s attendance. Instead, serve a deposition subpoena.

This will avoid any argument from opposing counsel as to the witness’ status—i.e., that the witness is no longer “an officer, director, managing agent or employee” of the opposing party. (Before serving the subpoena, you can ask opposing counsel to stipulate as to the status of the witness; if the stipulation is refused, you’ll know a subpoena is necessary.)

b. [8:521] Production of documents, electronically-stored information, etc. at deposition: No subpoena is required to compel a party or “party-affiliated” witnesses to produce books, records or other materials—including electronically-stored information—in their possession at the time of deposition as long as the notice of deposition specified with reasonable particularity the materials or category of materials (including any electronically-stored information) they are to produce. [CCP § 2025.220(a)(4)]

California Practice Guide: Civil Procedure Before Trial, The Rutter Group, § 8:517 – 8:521 (italics in original).

Accordingly Defendants have not offered a persuasive reason to grant the requested motion to quash and order imposing sanctions upon Plaintiff’s counsel.

The motion to quash the deposition subpoenas served on Gay Rutherford and Francisco Garcia, and request for sanctions, is DENIED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 5, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court