Case Number: BC659313 Hearing Date: October 17, 2018 Dept: 4

Motion for Order Compelling Compliance by Metro PCS to Subpoena

The court considered the moving papers. The hearing was continued from August 1, 2018, to allow defendants to serve Metro PCS by personal service.

Background

On April 26, 2017, plaintiff Victoria Guadalupe Preciado filed a complaint against defendants Jimmy Allen Manning, Penske Leasing and Rental Company, Penske Truck Leasing Corp., and So-Cal Express Trucking, Inc. for negligence, negligent hiring, retention, and supervision, negligent entrustment, negligence per se, and negligence pursuant to Vehicle Code §17150 based on a motor vehicle accident that occurred on May 27, 2015.

Discussion

Defendants request that the court compel third party deponent Metro PCS to respond to the subpoena, which was served on May 18, 2018. The date for production was set for June 15, 2018. On June 28, 2018, defense counsel sent a demand letter to Metro PCS demanding compliance by July 6, 2018. To date, Metro PCS has not responded.

CCP § 1987.1(a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

CCP § 1985.3(b) states that, prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e) (notice to consumer), and proof of service as indicated in paragraph (1) of subdivision (c).

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” Lee v. Swansboro Country Property Owners Ass’n (2007) 151 Cal. App. 4th 575, 582-83. Either the nonparty witness who has been subpoenaed or any party to the action may challenge the deposition subpoena. Weil & Brown, Civ. Proc. Before Trial, ¶ 8:597.

“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” Cal. Rules of Court, Rule 3.1346. The proof of service indicates that Metro PCS was personally served on August 7, 2018.

Defendants argue that the subpoena is necessary to comply with the court’s prior instruction to defense counsel to procure the cell phone records of defendant Manning for the 15 minute period prior to the accident that occurred at 7:20 a.m.

There is no opposition.

Defendants have met their burden.

The motion is GRANTED.

The court ORDERS Metro PCS to comply with the deposition subpoena served on May 18, 2018.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: October 17, 2018

_____________________________

Christopher K. Lui

Judge of the Superior Court