Yousif v. Alpine Orthopedic Medical Group CA5 ( 2021 )

Filed 5/7/21 Yousif v. Alpine Orthopedic Medical Group CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
ALEENA YOUSIF,
F078734
Plaintiff,
(Super. Ct. No. 9000680)
v.
ALPINE ORTHOPEDIC MEDICAL GROUP, OPINION
INC. et al.,
Defendants and Respondents;
R. MICHAEL WILLIAMS,
Objector and Appellant.
APPEAL from orders of the Superior Court of Stanislaus County. Marie Sovey
Silveira, Judge.
Wendel Rosen, Quinlan S. Tom and Thiele R. Dunaway for Objector and
Appellant.
Riggio Mordaunt & Kelly, Michael R. Mordaunt and Stephanie Roundy for
Defendant and Respondent Alpine Orthopedic Medical Group, Inc.
Cassel Ginns, Scott Ginns and Carlos M. Ambriz for Defendant and Respondent
Richard Lind.
Low McKinley Baleria & Salenko, Bruce E. Salenko and Paul R. Baleria for
Defendant and Respondent Douglas Tait.
-ooOoo-
In this appeal, we review an order imposing sanctions of $1,500 against appellant,
R. Michael Williams, M.D., for failing to comply fully with a deposition subpoena for the
production of business records. Williams is a nonparty witness in this action. We
conclude sanctions should not have been imposed because neither the deposition
subpoena nor the motion to compel compliance with it was properly served on Williams.
Therefore, we reverse the sanctions order.
FACTUAL AND PROCEDURAL BACKGROUND
This is a medical malpractice action in which Aleena Yousif (plaintiff) sued
defendant Alpine Orthopedic Medical Group, Inc. (Alpine) and a number of other
medical providers for allegedly failing to properly diagnose her bone cancer. During
discovery, counsel for defendant, Dr. Douglas Tait, issued a deposition subpoena for the
production of business records only, directed to “Custodian of Records For:
R. MICHAEL WILLIAMS, M.D.” The subpoena was accompanied by a copy of a
notice to consumer addressed to plaintiff, with a proof of service showing service on her
attorney. The deposition officer to whom the subpoenaed records were to be produced
was Quest Discovery Services (Quest), and the date of production was March 23, 2018.
Quest’s records indicated it received Williams’s documents on June 8, 2018.
Subsequently, Alpine and defendant, Dr. Roland Winter, made a motion to compel
Williams to comply fully with the Tait deposition subpoena. Defendants Tait and Dr.
Richard Lind subsequently filed joinders in the Alpine/Winter motion. The motion was
supported by a copy of the deposition subpoena and a proof of service showing the
subpoena was served on March 6, 2018, on “ANNA B,” at Williams’s business address.
It was also supported by documents indicating that, in July and August 2018, counsel for
Alpine and Winter sent letters to Williams, “Attn: Custodian of Records” (some
2.
capitalization omitted), asserting the document production was incomplete, because
plaintiff reportedly was receiving weekly treatments from Williams, but the records of
those treatments were not included, and there were no billing records among the
documents produced. Counsel for Alpine and Winter threatened to obtain a court order
directing compliance if additional documents were not produced.
The proof of service of the motion to compel indicated the motion was served on
Williams “by serving Ana Barajas Office Manager.” (Some capitalization omitted.) The
motion was set for hearing on September 19, 2018. On September 11, 2018, Alpine and
Winter filed a notice of nonreceipt of opposition to the motion, stating that it was past the
deadline for filing opposition, but none had been received. On September 17, 2018, a
response to the motion was filed by “Sokea Kiep R.N.,” on behalf of Northern California
Cancer Center (NCCC). It asserted, among other things, that the deposition subpoena
was erroneously served on Williams, an employee, instead of on NCCC; counsel refused
to correct the error; counsel also failed to provide documentation that plaintiff had been
notified of the subpoena; and counsel refused to pay the cost of producing the records
until June 8, 2018, when counsel paid the costs and the records were produced. The
response also noted billing was performed by an outside service, so NCCC did not have
billing records in its possession. The response requested that the motion to compel be
denied.
In its ruling, the trial court noted the motion was unopposed and granted it,
ordering Williams to comply fully with the deposition subpoena. It found Williams’s
failure to comply fully was without legal justification and imposed sanctions against him,
payable to counsel for Alpine and Winter, in the amount of $1,500.
Through counsel, Williams filed a motion for reconsideration, asserting NCCC’s
attempted response to the motion to compel was not considered by the trial court because
a first appearance fee was not paid. The motion for reconsideration asserted the motion
to compel was not personally served on Williams or on the custodian of records for
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NCCC; the subpoenaing party initially failed to pay the cost of production; the records
were produced upon payment; and the billing records were held by Peak Billing Services.
Williams requested reconsideration of the sanctions order against him. Alpine and
Winter opposed the motion. The trial court’s order did not expressly grant or deny
reconsideration; it merely modified the prior order to make the $1,500 sanctions “payable
jointly and severally” by Williams and NCCC. Williams appeals from the September 19,
2018 minute order and the October 17, 2018 formal order granting the motion to compel
and imposing monetary sanctions against him, and from the December 14, 2018 minute
order denying reconsideration and modifying those orders.
DISCUSSION
I. Appealability
In its respondent’s brief, Alpine1 challenges the appealability of the order granting
the motion to compel and imposing monetary sanctions against Williams. Alpine
contends the order on the motion to compel is not a final, appealable judgment, nor an
appealable final order on a collateral matter.
“ ‘The existence of an appealable order or judgment is a jurisdictional prerequisite
to an appeal.’ ” (Aixtron, Inc. v. Veeco Instruments, Inc. (2020) 52 Cal.App.5th 360,
384.) Generally, no judgment or order in a civil action is appealable unless it is among
the appealable judgments and orders listed in Code of Civil Procedure section 904.1.2
(Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th
15, 19.) Those include judgments, except interlocutory judgments. (§ 904.1,
1 Winter was dismissed from the action by plaintiff on January 3, 2019, after entry of the
order on the motion to compel, and before Williams filed his notice of appeal. Winter has not
filed a brief in this appeal.
2 All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
4.
subd. (a)(1).)3 By excepting interlocutory judgments, the statute implies that only final
judgments are appealable; a judgment is final and appealable “when no further judicial
action by the court is essential to the final determination of the rights of the parties to the
action.” (UAP-Columbus JV 326132 v. Nesbitt (1991) 234 Cal.App.3d 1028, 1034–
1035.) The theory behind the final judgment rule “is that piecemeal disposition and
multiple appeals in a single action are oppressive and costly, and review of intermediate
rulings should await the final disposition of the case.” (Kibrej v. Fisher (1983)
148 Cal.App.3d 1113, 1115.)
“ ‘Generally speaking, under the one final judgment rule, interlocutory or interim
orders are not appealable, but are only “reviewable on appeal” from the final judgment.’ ”
(Barton v. Ahmanson Developments, Inc. (1993) 17 Cal.App.4th 1358, 1360 (Barton).)
“ ‘A necessary exception to the one final judgment rule is recognized where there is a
final determination of some collateral matter distinct and severable from the general
subject of the litigation. If, e.g., this determination requires the aggrieved party
immediately to pay money or perform some other act, he is entitled to appeal even though
litigation of the main issues continues. Such a determination is substantially the same as
a final judgment in an independent proceeding.’ ” (United Pacific Ins. Co. v. Hanover
Ins. Co. (1990) 217 Cal.App.3d 925, 941, italics omitted.)
In Brun v. Bailey (1994) 27 Cal.App.4th 641 (Brun), the appellant was a
chiropractor who provided treatment to the plaintiff for injuries she allegedly sustained in
the accident that was the subject of her litigation. The defendant moved to compel the
chiropractor to appear and answer questions at a deposition, which he refused to do
unless he was paid an expert witness fee. (Id. at p. 645.) The trial court granted the
3 Orders or interlocutory judgments directing a party or an attorney for a party to pay
monetary sanctions in an amount exceeding $5,000 are also directly appealable. (§ 904.1,
subd. (a)(11), (12).) Here, however, the sanctions imposed did not exceed $5,000, and were not
imposed against a party or an attorney for a party, so the sanctions order is not immediately
appealable under these provisions.
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motion, requiring the chiropractor to be deposed concerning the facts of the case, his
observations, his diagnosis, and his treatment of the plaintiff, but not any expert opinions
or analysis. (Id. at p. 646.) The chiropractor testified at his deposition, then moved for
payment of expert witness fees, contending he had been asked opinion questions. (Id. at
p. 647.) The trial court denied the motion, and the chiropractor appealed. (Id. at
pp. 647–648.) The court granted the defendant’s motion to dismiss the appeal “insofar as
it challenged the order compelling attendance” at the deposition. (Id. at p. 648.) The
order denying payment of expert witness fees, however, was appealable. “The fee issue
is a collateral matter distinct and severable from the general subject of the underlying
litigation. The decision of the superior court denying the motion for payment of the fee
finally determined the rights of the parties to that collateral matter, leaving no further
judicial action to be performed. Appellant’s pursuit of this appeal from the denial of the
motion can have no effect on the course of the underlying litigation.” (Id. at p. 650.)
The Brun court noted the general rule is “that discovery orders are not appealable
and do not constitute orders on collateral matters subject to immediate review on appeal.”
(Brun, supra, 27 Cal.App.4th at p. 650.) “ ‘The rationale for this rule is that in the great
majority of cases the delay due to interim review is likely to result in harm to the judicial
process by reason of protracted delay [citation] and discovery orders may be reviewed on
appeal from a final judgment on the merits.’ ” (Ibid.) This rationale did not apply to the
order denying expert witness fees, which was made after the deposition was concluded.
The order did not compel production of evidence; review of the order would not result in
delay of the underlying action. The court held the order denying expert witness fees was
appealable as an order on a collateral matter finally adjudicating the rights of the parties
to that matter. (Id. at p. 651.)
In Diepenbrock v. Brown (2012) 208 Cal.App.4th 743, the plaintiff sued the
defendant for personal injuries, and attempted to take the deposition of the defendant’s
husband, a nonparty. The trial court granted the husband’s motion for a protective order
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and imposed sanctions against the plaintiff and her attorney and in favor of the husband
and his attorney. (Id. at p. 746.) The plaintiff and her attorney appealed. (Ibid.) The
court found the order appealable as a final judgment on a collateral matter, because it
finally resolved all issues between the plaintiff and her attorney on the one hand, and the
husband and his attorney on the other hand. (Id. at p. 747.) Although the litigation
between the plaintiff and the defendant would continue, the appeal “challenge[d] only the
sanction award, not the underlying discovery ruling. Accordingly, resolving the dispute
at this time will not interfere with the orderly administration of the underlying trial or
give rise to numerous unnecessary interim appeals.” (Ibid.)
In Barton, the trial court imposed monetary sanctions against the plaintiff and her
attorney for discovery abuse. The plaintiff substituted in a new attorney, and the original
attorney filed an appeal from the order imposing sanctions against him. (Barton, supra,
17 Cal.App.4th at p. 1360.) The court noted that ordinarily an order imposing discovery
sanctions is not immediately appealable but may be reviewed by extraordinary writ or on
appeal from the subsequent final judgment in the case. (Ibid.) It stated that the collateral
order exception had not been applied to discovery sanctions. (Ibid.) The court found
another exception applied: “An appeal is permitted ‘when the case involves multiple
parties and a judgment is entered which leaves no issue to be determined as to one
party.’ ” (Id. at p. 1361.)
The attorney’s appeal of the sanctions order was permissible because he no longer
represented the plaintiff. (Barton, supra, 17 Cal.App.4th at p. 1361.) The order was final
as to him; he had no further interest in the remainder of the action and there were no other
issues to be determined as to the him. (Ibid.) The policies underlying the rule making
discovery orders nonappealable—that further discovery orders might be contemplated,
that discovery promotes production of evidence for use at trial so discovery orders are not
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collateral, and that appealability would lead to a multiplicity of interim appeals—did not
apply. The court opined:
“This case involves a countervailing policy: ‘that it better serves the
interests of justice to afford prompt appellate review to a party whose rights
or liabilities have been definitively adjudicated than to require him to await
the final outcome of trial proceedings which are of no further concern to
him.’ [Citation.] Appellant is liable for the sanction; respondent might
seek to collect it from him or to enforce it.… It is hardly fair to hold
appellant in some kind of judicial penalty box while the underlying case
proceeds without him. Appellant’s particular problem is ripe for
determination, and no purpose is served by delaying its resolution.”
(Barton, supra, 17 Cal.App.4th at p. 1361.)
No party has pointed us to any case that held the order requiring or denying
discovery was itself immediately appealable, even when it involved discovery from a
nonparty; we have found none. “It is generally the rule … that discovery orders are not
appealable and do not constitute orders on collateral matters subject to immediate review
on appeal. [Citation.] … [A] discovery order ‘... is in the nature of a procedure for the
compelling of evidence to prove or disprove the truth of the issues directly involved in
the action and an order made relating thereto cannot be properly classified as a final
determination of a collateral matter.’ [Citation.] ‘The rationale for this rule is that in the
great majority of cases the delay due to interim review is likely to result in harm to the
judicial process by reason of protracted delay [citation] and discovery orders may be
reviewed on appeal from a final judgment on the merits.’ ” (Brun, supra, 27 Cal.App.4th
at p. 650.) “The rationale of the rule applies to preclude the appeal of orders enforcing
discovery or the production of evidence.” (Id. at p. 651.)
Consequently, we conclude we are without jurisdiction to review the order
requiring Williams to produce records in response to the subpoena. The order to pay
sanctions, however, is a final order against a nonparty who has no further interest in the
matter, which we may review in this appeal taken directly from that order. (See Doe v.
United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1432–1433 [appeal limited
8.
to review of the portion of the order imposing monetary sanction; unrelated issues, such
as those related to the portion of the order compelling compliance with discovery, were
not cognizable because they were not appealable].)
II. Mootness
Defendants Lind and Tait filed virtually identical respondents’ briefs, asserting the
appeal should be dismissed as moot, because Williams produced copies of plaintiff’s
medical records pursuant to a recent subpoena issued by another defendant; they also
assert the sanctions were awarded in favor of Winter and Alpine only. Alpine makes
similar assertions regarding mootness in its respondent’s brief; it asserts Winter is no
longer a party, Williams and NCCC produced plaintiff’s medical records in response to
another defendant’s subpoena, and Alpine’s counsel offered to waive recovery of the
monetary sanctions if Williams would dismiss his appeal. We decline to grant
defendants’ requests for dismissal, as they do not comply with the mandatory
requirements for motions on appeal. (See Cal. Rules of Court, rule 8.54; Jocer
Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 565, fn. 4.) To make a motion, a
party must serve and file a written motion; it “must be accompanied by a memorandum
and, if it is based on matters outside the record, by declarations or other supporting
evidence.” (Cal. Rules of Court, rule 8.54(a)(1), (2).) Defendants did not file separate
motions. The facts they assert in support of dismissal are not contained in the record on
appeal. Defendants have not proffered any declarations or other supporting evidence to
prove the events they contend make the appeal moot. We decline to dismiss the appeal
on the basis of unsworn statements regarding facts allegedly occurring during the
pendency of the appeal. (Halliburton Energy Services, Inc. v. Department of
Transportation (2013) 220 Cal.App.4th 87, 106; American Alternative Energy
Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 557.)
9.
III. Standard of Review
“ ‘We review the trial court’s ruling on a discovery sanction under the deferential
abuse of discretion standard.’ ” (Doe v. United States Swimming, Inc., supra,
200 Cal.App.4th at p. 1435.) “ ‘An abuse of discretion occurs if, in light of the applicable
law and considering all of the relevant circumstances, the court’s decision exceeds the
bounds of reason and results in a miscarriage of justice. [Citations.] The abuse of
discretion standard affords considerable deference to the trial court, provided that the
court acted in accordance with the governing rules of law.’ ” (Kayne v. The Grande
Holdings Limited (2011) 198 Cal.App.4th 1470, 1474–1475.)
IV. Requirements for Award of Sanctions
Discovery may be obtained from a nonparty by oral deposition, written deposition,
or a deposition for production of business records. (§ 2020.010.) “[T]he process by
which a nonparty is required to provide discovery is a deposition subpoena.” (Id.,
subd. (b).) Production of documents by a nonparty deponent requires the service on the
deponent of a deposition subpoena. (§ 2025.280, subd. (b).) If the deponent is a natural
person, service of a deposition subpoena is made by personal delivery of a copy of it to
the deponent. (§ 2020.220, subd. (b)(1).) If the deponent is an organization, service is
made by personal delivery of a copy to “any officer, director, custodian of records, or to
any agent or employee authorized by the organization to accept service of a subpoena.”
(Id., subd. (b)(2).) A deposition subpoena only for the production of business records
“shall be directed to the custodian of those records or another person qualified to certify
the records.” (§ 2020.410, subd. (c).) Personal service of a deposition subpoena is
effective to require the specified production of documents. (§ 2020.220, subd. (c)(2).)
“If a deponent fails to … produce any document … under the deponent’s control
that is specified in … a deposition subpoena, the party seeking discovery may move the
court for an order compelling that … production.” (§ 2025.480, subd. (a).) “This motion
shall be made no later than 60 days after the completion of the record of the
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deposition .…” (Id., subd. (b).) “If the court determines that the … production sought is
subject to discovery, it shall order that … the production be made .…” (Id., subd. (i).)
Failing to respond to an authorized method of discovery is a misuse of the
discovery process. (§ 2023.010, subd. (d).) After notice to the affected person and an
opportunity for hearing, the trial court may impose monetary sanctions against anyone
engaging in a misuse of the discovery process, including payment of the reasonable
expenses, including attorney’s fees, incurred by anyone as a result. (§ 2023.030.)
Additionally, “[t]he court shall impose a monetary sanction … against any party, person,
or attorney who unsuccessfully makes or opposes a motion to compel … 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.” (§ 2025.480,
subd. (j).)
A. Service of the deposition subpoena
The motion of Alpine and Winter to compel compliance with the deposition
subpoena and for sanctions was directed to nonparty deponent Williams. It was based on
the exhibits submitted with the motion, which included the deposition subpoena. The
deposition subpoena was addressed to the custodian of records for R. Michael Williams,
M.D. Williams, as a natural person deponent, was required to be personally served with
the deposition subpoena and could only be sanctioned for disobeying the subpoena if he
was personally served with it. (§ 2020.220, subds. (b)(1), (c)(2).) If R. Michael
Williams, M.D. was an organization that could be served through its custodian of records
or other authorized person, then sanctions could be imposed on the organization only if
personal service was effected on the custodian of records or other authorized person.
(Id., subds. (b)(2), (c)(2).)
The proof of service, however, indicated the subpoena was personally served on
“ANNA B.” The motion to compel did not present any proof of service or other evidence
showing personal service on Williams, a natural person. It also did not present any
11.
evidence that “ANNA B” was an officer, director, custodian of records, or agent for
service of process of “R. MICHAEL WILLIAMS, M.D.”
In Chapman v. Superior Court (1968) 261 Cal.App.2d 194, the court annulled a
contempt order against Ruth Chapman, which was based on a subpoena for the
production of business records in court. (Id. at pp. 195–196.) The subpoena was directed
to the custodian of records of the plaintiff’s treating doctor, Dr. Robert A. Ronne. (Id. at
p. 195.) Service was governed by section 1987, which required service by delivering a
copy of the subpoena to the witness personally. (Chapman, at p. 197.) “ ‘Disobedience
of a subpena duly served’ ” was punishable as a contempt of court. (Id. at pp. 197–198.)
The court concluded the contempt proceedings were void from the beginning, because
the subpoena was not directed to Chapman. (Id. at p. 197.) A person who was not
“ ‘duly served’ ” could not be punished for contempt; the only person who could have
been punished for disobedience to the subpoena was the custodian of records of Ronne,
and then only if duly served. (Id. at p. 198.) Chapman’s testimony indicated she was the
receptionist in Ronne’s front office and was not his custodian of records. (Ibid.) The
process server had put the subpoena down on her window and left without waiting for
Ronne. (Ibid.)
Likewise, in In re Abrams (1980) 108 Cal.App.3d 685, the court annulled a
conviction of contempt arising out of Dr. Edward H. Abrams’s alleged disobedience of a
subpoena directing him to appear as a witness at trial and bring medical records; the
subpoena had been served on his attorney. (Id. at pp. 686–688.) Section 1987 required
personal service. (In re Abrams, at p. 687.) The court rejected the argument the
subpoena could be served by substituted service, like a summons. (Id. at p. 690.) It
concluded the subpoena was not “ ‘duly served,’ ” that is, served in the manner required
by law, and Abrams could not be punished by contempt for failure to obey it. (Id. at
p. 695.)
12.
In Cooley v. Superior Court (2006) 140 Cal.App.4th 1039 (Cooley), the plaintiff
served a deposition subpoena on the custodian of records of the Los Angeles County
District Attorney’s Office (a nonparty), seeking documents that it possessed because of
the investigation of a criminal offense. (Id. at p. 1042.) The defendant, George Weller
(who was also the criminal defendant), had driven his car into a farmer’s market,
resulting in deaths and injuries. (Id. at p. 1041.) The plaintiff was among those injured.
The documents sought included investigative reports, statements by Weller, photographs,
field interview notes, and results of any tests or examinations, which were items not
generated by the district attorney’s office. (Id. at pp. 1042–1043.) The district attorney’s
office objected to production. (Id. at p. 1043.) The trial court ordered compliance,
finding the documents sought were “ ‘maintained by’ ” the district attorney’s office.
(Ibid.) The reviewing court issued a writ of mandate commanding the trial court to
vacate the order. (Id. at p. 1046.)
“A deposition subpoena for business records is to be ‘directed to the custodian of
those records or another person qualified to certify the records.’ ” (Cooley, supra,
140 Cal.App.4th at p. 1044, citing § 2020.410, subd. (c).) “At first blush, it would seem
that a person or entity that maintains records would also be the custodian of those
records. Nevertheless, the custodian of records or other qualified witness contemplated
by Evidence Code section 1561 must also be able to attest to various attributes of the
records relevant to their authenticity and trustworthiness.” (Ibid.) Evidence Code
section 1561 required that the records produced in response to a subpoena “be
accompanied by the affidavit of the custodian or other qualified witness,” attesting that
the affiant was the authorized custodian of the records or other qualified witness, the
affiant had authority to certify the records, the records were true copies of the documents
described in the subpoena, and the records were prepared by the personnel of the business
in the ordinary course of business, at or near the time of the act. (Cooley, at p. 1041,
fn. 1.) In light of this obligation, “execution of a section 1561 affidavit is more than
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simply a clerical task.” (Id. at p. 1044.) It was undisputed the district attorney’s office
did not prepare or generate any of the documents described in the subpoena; therefore, it
could not have made the required attestation. (Id. at p. 1045.) Consequently, the
plaintiff’s motion to enforce the records subpoena should not have been granted. (Ibid.)
As these cases illustrate, a subpoena for production of business records may not be
enforced against an individual who was not personally served with the subpoena. It also
may not be enforced against one who is not the custodian of records or a person qualified
to make the attestation required by Evidence Code section 1561.
When Alpine and Winter filed their motion to compel Williams to comply with
the subpoena for his records and for sanctions, they bore the burden of proving they were
entitled to an order for sanctions against him. (Evid. Code, § 500 [a party has the burden
of proof as to each fact the existence or nonexistence of which is essential to the claim for
relief or defense that they are asserting]; Simpson Strong-Tie Co., Inc. v. Gore (2010)
49 Cal.4th 12, 24 [under Evid. Code, § 500, the party who seeks a court’s action in their
favor bears the burden of persuasion thereon].) Alpine and Winter failed to demonstrate
a misuse of the discovery process warranting sanctions because they failed to prove that
the subpoena was personally served on Williams or the custodian of his records. The
motion showed only that the subpoena was served on “ANNA B” at Williams’s business
address. There was nothing to indicate who “ANNA B” was or what role she played (if
any) in Williams’s business. There was nothing to demonstrate she could certify the
requested records or provide the affidavit required to accompany their production.
Consequently, the motion to compel compliance with the deposition subpoena should
have been denied for lack of proper service of the subpoena.
Additionally, Williams’s subsequent motion for reconsideration presented, as new
and different facts not considered by the court in ruling on the motion to compel, the
declaration of Ana Barajas, which stated she worked in the front office of NCCC, the
deposition subpoena was thrown at her face at the front desk while she was working, and
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the custodian of records of NCCC was not served with the subpoena. Barajas’s
declaration was not disputed.
B. Service of the motion to compel and for sanctions
The motion to compel compliance with the deposition subpoena and for sanctions
also was not properly served. “A written notice and all moving papers supporting a
motion … to compel production of a document … from a nonparty deponent must be
personally served on the nonparty deponent unless the nonparty deponent agrees”
otherwise. (Cal. Rules of Court, rule 3.1346.) The Alpine/Winter notice of motion to
compel was directed to Williams, who was identified as a nonparty deponent. The
caption on the proof of service of the motion indicated it was a proof of personal service
on Williams. The proof of service signed by the process server, however, actually
reflected that the motion was served on Williams “by serving Ana Barajas office
manager.” (Some capitalization omitted.) Thus, the proof of service on its face
demonstrated a failure to comply with the requirement of personal service. There was no
evidence that Williams agreed to be served by service on Barajas, or that he agreed to
something other than personal service.
The motion to compel and for sanctions was also untimely. A motion to compel a
deponent to produce documents pursuant to a deposition subpoena must be made within
60 days after the completion of the record of the deposition. (§ 2025.480, subd. (b).)
“The record of such a deposition is the documentary record memorializing the nonparty’s
response to the subpoena.” (Board of Registered Nursing v. Superior Court (2021)
59 Cal.App.5th 1011, 1032 (Board of Registered Nursing).) When the deponent responds
by serving objections, the deposition is complete when the objections are served, and the
60-day period begins to run on that date. (Ibid.; Unzipped Apparel, LLC v. Bader (2007)
156 Cal.App.4th 123, 136.) When the deponent both produces documents and serves
objections on the same day, the 60-day period for compelling a further response
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commences on that date. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th
1164, 1192.)
“The nonparty discovery statutes establish a one-step process for a nonparty
responding to a business records subpoena. Upon receipt of the subpoena, a nonparty
must make the production on the date and in the manner specified, unless grounds exist to
object or disregard the subpoena. The nonparty’s compliance with the subpoena is clear
on the date specified for production. It has either produced documents as requested in the
subpoena, or not. On that date, the subpoenaing party has all of the information it needs
to meet and confer regarding the nonparty’s compliance and, if unsatisfied, prepare a
motion to compel.” (Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1033.)
The meet and confer efforts do not extend the 60-day period. (Id. at p. 1034.)
The deposition subpoena set a March 23, 2018 date for production of the requested
records. Williams did not produce records on that date. The subpoenaing party had all
the knowledge needed at that time to engage in meet and confer efforts to obtain
compliance or determine why no response was made. If those efforts were unsuccessful
at obtaining compliance, the subpoenaing party could have brought a motion to compel
compliance within 60 days after the date production was due, that is, by May 22, 2018.
Even if the 60-day period did not begin to run until the subpoenaing party received
some response to the subpoena, the undisputed evidence Alpine and Winter submitted in
support of the motion to compel showed that documents were produced to the deposition
officer, Quest, on June 8, 2018. Although Alpine asserts in its respondent’s brief that
production occurred on June 11, 2018, it cites nothing in the record to support that date.
Measured from the June 8, 2018 production date, any motion to compel was required to
be filed and served no later than August 7, 2018.
A motion to compel is “made … upon the due service and filing of the notice of
motion.” (§ 1005.5; accord, Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 320.)
The motion to compel was not filed until August 10, 2018; it was not served on the other
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parties until August 13, 2018. It was purportedly served on Williams on August 13,
2018. Thus, using either the date set in the deposition subpoena for production of
documents, or the date documents were produced in response to it, the motion to compel
was untimely. The 60-day deadline is mandatory. (Unzipped Apparel, LLC v. Bader,
supra, 156 Cal.App.4th at p. 136.) An untimely motion should be denied. (Board of
Registered Nursing, supra, 59 Cal.App.5th at p. 1032.)
Because the deposition subpoena was not personally served on Williams or the
custodian of his records, the Alpine/Winter motion to compel and for sanctions was not
personally served on Williams, and the motion was untimely, the request for sanctions
made in the motion should have been denied. Granting the motion and imposing
sanctions on Williams was not in accordance with the governing rules of law, therefore it
constituted an abuse of discretion. (Kayne v. The Grande Holdings Limited, supra,
198 Cal.App.4th at pp. 1474–1475.)
The modification of the sanctions order entered after Williams moved for
reconsideration, which added NCCC as a sanctioned party, was also an abuse of
discretion. Alpine and Winter did not even claim they served NCCC with the deposition
subpoena or the motion to compel. Since they failed to comply with the law requiring
such service as a prerequisite to an award of sanctions for failing to produce records,
sanctions could not properly be imposed against NCCC.
Because the failure to properly serve the deposition subpoena and the motion to
compel and for sanctions is dispositive of the merits of this appeal, we need not consider
the other issues raised by Williams, including the contention that Alpine and Winter
lacked standing to enforce a deposition subpoena that was issued by counsel for another
defendant.
DISPOSITION
The September 19, 2018 minute order and the October 17, 2018 formal order
imposing monetary sanctions of $1,500 against Williams for failing to comply with the
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deposition subpoena for records, and the December 14, 2018 order denying
reconsideration and modifying those orders, are reversed. The trial court is directed to
enter a new order vacating the award of sanctions against Williams. In the interests of
justice, neither party shall recover costs on appeal.
HILL, P.J.
WE CONCUR:
PEÑA, J.
DE SANTOS, J.
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