Case Number: BC682107 Hearing Date: January 08, 2019 Dept: 4A

Motion to Compel Document Production

The Court considered the moving papers. No opposition was filed.

On November 1, 2017, Plaintiff Heidi Hernandez (“Plaintiff”) filed a Complaint against Defendants Wal-Mart Stores, Inc., Melissa Manuel, and Universal City Studios LLC (“Universal”) for negligence, premises liability, and negligent entrustment.

Defendants Universal argues it subpoenaed a request for business records on ACE American Insurance Company (“ACE”) on June 25, 2018. A response was due on July 12, 2018. No response had been received as of the filing of the instant motion. Universal’s deposition officer followed up with ACE numerous times including in writing on September 10, 2018, and Universal sent a meet and confer letter on October 4, 2018. Universal requests that the Court order ACE to produce the records they seek and request monetary sanctions in the amount of $1,446.00.

To require the production of any document or tangible thing for inspection and copying of a non-party deponent, the party seeking discovery must serve on that deponent a deposition subpoena, pursuant. (CCP §§ 2020.010(b), 2025.280(b); see also Sears, Roebuck & Co. v. National Union Fire Insurance Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by Code of Civil Procedure section 2020.010, et seq., and is primarily carried out by way of subpoena]. While penalties for disobedience of a subpoena are generally governed by CCP §§ 1991–1994, in the case of subpoenas in the context of discovery, the provisions governing subpoenas are modified by the more specific provisions of CCP §§ 2016.010, et seq. (See CCP §§ 2020.010, et seq.)

Under CCP § 2020.240, a deponent who disobeys a deposition subpoena in any manner may be punished for contempt, without the necessity of a prior order of the court directing compliance by the witness and is also subject to a monetary penalty of $500.00, as well as the payment of damages to the party aggrieved by his disobedience. (CCP § 2020.240; see also CCP § 1992.) That is, the court may order that the disobedience be treated as contempt (CCP § 2020.240) or, in the alternative, issue a warrant for the arrest of the witness or person who fails to appear (CCP § 1993).

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (CCP § 2025.480(a).) This motion must be made no later than sixty (60) days after completion of the deposition record. (CCP § 2025.480(b).) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (CCP § 2025.480(i).) The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2025.480(j).)

Universal properly issued a subpoena for documents on ACE in June 2018. (Lacuesta Decl. ¶ 6; Exhibit C.) Universal declares there has been no response from ACE as of filing of their motion. There is no opposition.

Accordingly, the Court GRANTS the motion.

Universal requests sanctions in the amount of $1446 for the motion, reply, hearing, and a penalty of $500. Universal made several reasonable attempts to obtain the responses before having to file a motion to compel. The responses were not served as of the date of the instant motion. No one has opposed. There is no basis for a finding that ACE acted with substantial justification, and it would not be unjust to award sanctions against a subpoenaed non-party whose failure to serve responses necessitates motion practice. The Court finds that $946 in sanctions ($175/hr x 5 hrs, plus $71 in costs for service of subpoenas) is reasonable.

Because of the absence of a sufficient showing of actual damages beyond the attorneys’ fees incurred for the instant motion, the court will not impose a $500 penalty as requested by Universal. Church v. Payne, (1930) 35 Cal.App.2d Supp. 752. The denial of the $500 penalty on this motion is without prejudice to requests for contempt or other sanctions in the event of future noncompliance.

The Court ORDERS:

ACE is ordered to respond to the subpoena within 20 days.

ACE is ordered to pay to Universal $946 in monetary sanctions within 30 days.

Moving Defendant is ordered to give notice of this ruling.