On 04/03/2018 a Contract - Other Contract case was filed by BRIANA ORNELAS against SAFEWAY AUTO CENTER, INC in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JON R. TAKASUGI
SAFEWAY AUTO CENTER INC.
WESTERN SURETY COMPANY
7/10/2019: Motion to Compel (name extension) - Motion to Compel Compliance with Deposition Subpoena Served on Mendoza's Auto Repair
7/15/2019: Proof of Personal Service - Proof of Personal Service
7/24/2019: Ex Parte Application (name extension) - Ex Parte Application For Continuance of Trial Date and All Dates Associated with the Trial Date
7/24/2019: Declaration (name extension) - Declaration of David Valdez Jr. re Notice and In Support of Ex Parte Application
7/25/2019: Order (name extension) - Order [Proposed] Order on Ex Parte Application For Trial Continuance
4/3/2018: Civil Case Cover Sheet
4/19/2018: Proof of Personal Service
7/2/2018: Opposition (name extension) - to motion to compel arbitration
7/24/2018: Request for Dismissal
8/6/2018: Declaration (name extension) - of Eric J. Bautista
8/10/2018: Declaration (name extension) - of David Valdez Jr. in opposition to defendants' request for 30 day extension to file demurrer
2/8/2019: Certificate of Mailing for - Certificate of Mailing for Minute Order (Nunc Pro Tunc Order) of 02/08/2019
3/19/2019: Proof of Personal Service - Proof of Personal Service
3/21/2019: Minute Order - Minute Order (Hearing on Motion to Compel Compliance With Deposition Subpoe...)
3/27/2019: Proof of Personal Service - Proof of Personal Service
7/8/2019: Motion to Quash - Motion to Quash
Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of ServiceRead MoreRead Less
Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Quash (name extension)Read MoreRead Less
Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other (name extension)Read MoreRead Less
Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Discovery (not "Further Discovery")Read MoreRead Less
DocketNon-Jury Trial scheduled for 04/07/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketPursuant to the request of plaintiff, Non-Jury Trial scheduled for 10/01/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Continued - Party's Motion was rescheduled to 04/07/2020 08:30 AMRead MoreRead Less
DocketHearing on Motion to Quash Deposition Subpoena scheduled for 11/25/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketNotice Of Entry Of Order On Ex Parte Application For Trial Continuance; Filed by: Briana Ornelas (Plaintiff); As to: Western Surety Company (Defendant); Safeway Auto Center, INC., (Defendant)Read MoreRead Less
DocketMotion to Quash; Filed by: Safeway Auto Center, INC., (Defendant)Read MoreRead Less
DocketMotion to Compel Arbitration; Transferred From : 18STLC05169; Transfered To : 18STLC05169Read MoreRead Less
DocketProof of Service of Process to Defendant Safeway Auto Center, Inc. Filed by: Briana Ornelas (Plaintiff)Read MoreRead Less
DocketProof of Personal Service; Filed by: Briana Ornelas (Plaintiff); As to: Surety Company, (Defendant); Service Date: 04/17/18; Service Cost: 50.00; Service Cost Waived: NoRead MoreRead Less
DocketComplaint; Filed by: Briana Ornelas (Plaintiff); As to: Safeway Auto Center, INC., (Defendant); Surety Company, (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Briana Ornelas (Plaintiff)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketCase assigned to Hon. Jon R. Takasugi in Department 77 Stanley Mosk CourthouseRead MoreRead Less
DocketNon-Jury Trial scheduled for 10/01/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 77Read MoreRead Less
DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 04/06/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 77Read MoreRead Less
Case Number: 18STLC05169 Hearing Date: February 11, 2020 Dept: 25
MOTION TO BE RELIEVED AS COUNSEL
(CCP § 284(2); CRC rule 3.1362)
MOTION FOR TERMINATING/EVIDENTIARY SANCTIONS
(CCP §§ 2023.030, 2025.450(h))
Defendant’s Counsel James S. Sifer’s Motion to be Relieved as Counsel is CONTINUED TO APRIL 1, 2020 AT 10:30 A.M. in Department 25. At least 16 court days before the next scheduled hearing, Defense Counsel must file a declaration of diligence and an amended proof of service demonstrating all required documents were properly served on all parties.
Plaintiff Briana Ornelas’ Motion for Terminating Sanctions is DENIED. Plaintiff’s request for monetary sanctions is also DENIED.
On April 3, 2018, Plaintiff Briana Ornelas (“Plaintiff”) filed an action arising from the sale of a defective vehicle against Defendants Safeway Auto Center, Inc. (“Safeway”) and Western Surety Company (“Western”) (collectively, “Defendants”). On June 1, 2018, Defendants filed an Answer.
On November 15, 2019, Defense Counsel James Sifers (“Defense Counsel”) filed the instant Motion to be Relieved as Counsel (the “Motion to be Relieved”). The hearing date was originally set for May 18, 2020. On November 22, 2019, Defense Counsel filed an Ex Parte Application for Order Shortening Time to Hear Motion to be Relieved as Counsel. On November 25, 2019, the Court granted the ex-parte application and set the hearing for February 11, 2020. (11/25/19 Minute Order.) The Court also ordered Defense Counsel to file a declaration of diligence as to locating and communicating with Safeway at least five days prior to the hearing. (Id.) To date, no opposition or reply briefs have been filed as to the Motion to be Relieved.
Also, on November 22, 2019, Plaintiff filed an Ex Parte Application to Compel the Deposition of Defendant Safeway and Production of Original Documents. On November 25, 2019, the Court granted the ex-parte application and ordered Safeway to produce certain documents by December 20, 2019. (11/25/19 Minute Order.) The Court also recommended that the parties meet and confer before the December 20 deadline to ensure all required documents would be produced. (Id.) The Court did not set a date or a deadline for Safeway’s deposition to be taken. (See Id.) On December 18, 2019, Defense counsel produced the required documents per the Court’s November 25 Order. (Mot., Valdez Decl., ¶ 9; Oppo, Mafud Decl., ¶ 11.)
On January 17, 2020, Plaintiff filed the instant Motion to Compel, Requesting Terminating Sanctions Against Safeway for Misuse of Discovery (the “Motion for Sanctions”). On January 29, 2019, Safeway filed an Opposition and on February 4, 2019, Plaintiff filed a reply.
Motion to be Relieved as Counsel
The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc., § 284, subd. (2).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Council Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c) & (e).)
In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either:
(A) The service address is the current residence or business address of the client; or
(B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.
(Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).)
Defense Counsel seeks to be relieved due to a conflict that arose with Safeway that has resulted in the breakdown of the attorney-client relationship. (Form MC-052, ¶ 2.) Defense Counsel further states that due to the breakdown in communication with the client, he does not believe he can adequately represent Safeway in this matter. (Id.)
The Court is satisfied with Defense Counsel’s reasons for seeking to be relieved. However, the Proof of Service, filed on November 15, 2019, shows that only a “Notice of Motion and Motion to be Relieved as Counsel,” which is the title of Form MC-051, was served on Safeway and Plaintiff’s counsel by mail. Pursuant to Code of Civil Procedure section 1013a, subdivision (1), a proof of service by mail must set forth “the exact title of the document served and filed in the cause…” But based on the Proof of Service, Forms MC-052 (Declaration) and MC-053 (Proposed Order) were not served on Safeway or on Plaintiff’s counsel. Alternatively, if Defense Counsel did serve Forms MC-052 and MC-053, then it violated Section 1013a(1) by failing to state the exact title of each document served in the Proof of Service. Either way, the Court cannot grant the Motion to be Relieved until Counsel has demonstrated that proper service of all the requisite forms has been effectuated on Safeway and Plaintiff.
In addition, Counsel has not filed a declaration of diligence as to locating and communicating with Safeway at least five days before this hearing as ordered on November 25.
Accordingly, the Motion to be Relieved, is CONTINUED TO APRIL 1, 2020 AT 10:30 A.M. in Department 25.
Motion for Terminating Sanctions
Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) An evidence sanction prohibits a party that misused the discovery process from introducing evidence on certain designated matters into evidence. (Code Civ. Proc., § 2023.030, subd. (c).) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) The court may impose a terminating sanction by one of the following orders:
(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.
(2) An order staying further proceedings by that party until an order for discovery is obeyed.
(3) An order dismissing the action, or any part of the action, of that party.
(4) An order rendering a judgment by default against that party.
(Code Civ. Proc., § 2023.030, subd. (d).)
Defense Counsel has complied with the Court’s order to produce certain documents. (Mot., Valdez Decl., ¶ 9; Oppo, Mafud Decl., ¶ 11.) Thus, the only remaining issue is Safeway’s deposition. Because a deposition for Safeway has not yet been scheduled, Plaintiff requests that the Court strike Safeway’s Answer, enter Safeway’s Default, and preclude any testimony of any witness associated with Safeway at trial. (Mot., p. 9.)
The Court finds that neither terminating nor evidentiary sanctions are warranted here. First, although Plaintiff repeatedly asserts the Court’s November 25, 2019 Order permits her to seek terminating sanctions if Safeway fails to appear for its deposition, the minute order contains no such language. (11/25/19 Minute Order.)
In addition, Plaintiff has not demonstrated a history of abuse or that lesser sanctions would be futile. Safeway’s deposition was originally scheduled for August 14, 2019. (Mot., Valdez Decl., ¶ 3.) It was Plaintiff’s counsel who thereafter requested that it be rescheduled twice, to which Defense Counsel promptly provided available dates to accommodate the request. (Oppo., Mafud Decl., ¶¶ 2-3, Exh. 1, 2.) On November 12, 2019, Defense Counsel informed Plaintiff’s counsel that it would not be able to attend the Deposition due to a conflict and could not provide dates before January 2020, other than December 18, due to his trial calendar and the holidays. (Oppo., Mafud Depo., ¶ 4, Exh. 3.) The fact that Defense Counsel requested to re-schedule the deposition once, however, does not demonstrate Safeway repeatedly failed or refused to submit to a deposition.
Furthermore, Plaintiff has not demonstrated Safeway willfully violated the Court’s order because Safeway has not actually failed to appear for a duly noticed deposition. Plaintiff argues that terminating and evidentiary sanctions should be imposed because Defense Counsel has not been able to communicate with its client and because a deposition has not been rescheduled. (Mot., p. 5:15-19.) However, Plaintiff never issued a new Notice of Deposition to Safeway. Notably, Plaintiff filed the instant Motion for Sanctions on January 17, 2020, which is one of the dates that Defense Counsel noted was available for Safeway’s deposition. (Oppo., Mafud Decl., ¶ 4, Exh. 3.) Plaintiff’s counsel could have easily noticed Safeway’s deposition for this date, held the deposition, and if Safeway failed to show, obtained a certificate of non-appearance. The Court then could have concluded Safeway failed to appear for deposition in violation of its order. However, under the present circumstances, the Court cannot find there was a willful and direct violation of the November 25, 2019 Order that justifies the imposition of terminating and evidentiary sanctions.
Thus, Plaintiff’s request for terminating and evidentiary sanctions is DENIED. Plaintiff’s request for monetary sanctions in the amount of $3,624.00 incurred as a result of brining this motion, is also DENIED.
Conclusion & Order
Defendant’s Counsel James S. Sifer’s Motion to be Relieved as Counsel is CONTINUED TO APRIL 27, 2020 AT 10:30 A.M. in Department 25, SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defense Counsel must file a declaration of diligence and an amended proof of service demonstrating all required documents were properly served on all parties.
Plaintiff Briana Ornelas’ Motion for Terminating Sanctions is DENIED. Plaintiff’s request for monetary sanctions is also DENIED.
Moving parties are ordered to give notice.
Case Number: 18STLC05169 Hearing Date: November 19, 2019 Dept: 94
PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS; DEFENDANTS’ MOTION TO QUASH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS
(CCP §§ 2025.410, 2025.480
Plaintiff Briana Ornelas’s motion to compel compliance with deposition subpoena for production of business records is MOOT. Defendant Safeway Auto Center Inc.’s motion to quash the subpoena for production of business records is also MOOT.
SUMMARY OF COMPLAINT: This action is a lemon law/breach of implied warranty of merchantability case arising from the sale of a vehicle. Plaintiff alleges that he purchased a 2016 Nissan Pathfinder from Defendant Safeway Auto Center, Inc. which was represented to be in good condition and never involved in an accident. Four days after Plaintiff purchased the vehicle, it died in the middle of an intersection and Plaintiff learned it has been involved in an accident and was in unsafe condition when sold.
REQUEST FOR RELIEF: On July 25, 2019, Defendant Safeway filed the instant motion to quash Plaintiff’s deposition subpoena for business records to non-party Carfax, Inc. Defendant argues that the court should quash the subpoena for production of documents on Carfax, Inc. on the grounds that the subpoena seeks information unrelated to the present action, will not lead to the discovery of admissible evidence, and has no probative value. (Code Civ. Proc., § 2025.410.) Defendant also requests sanctions in the amount of $2,985 for attorneys fees and costs for brining the motion to quash.
On September 19, 2019, Plaintiff filed a motion to compel compliance with the deposition subpoena. Plaintiff served the subpoena request for document production on July 16, 2019. Plaintiff seeks an order compelling a deposition subpoena for non-party Carfax, Inc. on the grounds that Carfax has objected to service of the subpoena and is in possession of business records within the scope of discovery. Plaintiff contends that the subpoena requests information about the subject vehicle as made available by Carfax and information on when Defendant Safeway obtained that information. Plaintiff also seeks sanctions against Carfax in the amount of $2,710.50.
OPPOSITION: Plaintiff filed an opposition to the motion to quash on September 6, 2019. Plaintiff contends that Defendant did not include a separate statement of disputed matters with the motion to quash. Plaintiff also argues that she seeks relevant evidence to Plaintiff’s vehicle code section 11711 claim which provides a right of action to a person who has suffered damages as a result pf fraud by a licensed dealer. Plaintiff further argues that the complaint need not plead all evidentiary facts before discovery may be taken. Plaintiff contends that Safeway failed to meet and confer in good faith and Plaintiff seeks sanctions in the amount of $2,929.50 for misuse of discovery.
Carfax filed a specially appearing opposition to the motion to compel on October 2, 2019. Carfax argues that Plaintiff improperly served the subpoena under the Uniform Interstate Depositions and Discovery Act (UIDDA) and that it would comply with a properly served subpoena. Carfax also argues that it cannot be compelled to produce documents as a non-resident witness. Carfax contends that Plaintiff’s counsel did not meet and confer regarding with Carfax about its objections. However, Carfax contends that the motion is moot because Carfax agreed, without waiving objections, to respond to the deposition subpoena and produce responsive and non-privileged documents on October 4, 2019.
On November 12, 2019, Safeway filed a reply to the motion to quash. Safeway argues that a separate statement was not required with its motion to quash. Further, Safeway argues that it was not required to provide a Carfax report because Carfax is an independent company. Safeway also reiterates that the documents are not relevant to this action because Plaintiff did not plead an issue as to fraud with the Carfax report in the complaint.
Plaintiff filed a reply as to the motion to compel on November 12, 2019. Plaintiff argues that Carfax’s authorities, including the UIDDA are inapplicable and Plaintiff may compel the records for an out of state witness where personal attendance of the witness is not required. (Code Civ. Proc., § 1987.3.) Plaintiff also argues he properly met and conferred and Safeway’s motion to quash precludes Carfax from producing records until the motion to quash is resolved. (Code Civ. Proc., §1985.3, subd. (f)(3), subd. (g).) Plaintiff argues that the motion to compel was necessary to obtain the records, and that Carfax’s production remains incomplete. Plaintiff contends that Carfax has not produced requested records showing the dates on which Safeway or its representative obtained a vehicle history report for the subject vehicle. Plaintiff states that Carfax only provided an unverified statement providing that Carfax had no records indicating that Safeway or its representatives obtained any vehicle history report for the subject vehicle.
PPROCEDURAL BACKGROUND: On October 7, 2019, Defendant Safeway joined non-party Carfax’s opposition to the motion to compel compliance with the deposition subpoena. On October 9, 2019, the parties stipulated to continue the hearing on these motions to address both motions related to this issue on the same day. On October 11, 2019, the court continued both motions to November 19, 2019.
I. Factual and Procedural Background
On April 3, 2018, Plaintiff Briana Ornelas (“Plaintiff”) filed the instant action for breach of contract, breach of warranty, and related claims. On July 16, 2019, a Deposition Subpoena for Production of Business Records (the “Subpoena”) was served on non-party Carfax through its agent for service of process. (Valdez Decl. ¶ and Exh. 4.) The Subpoena requests the Carfax vehicle history report for a 2016 Nissan Pathfinder, VIN: 5N1AR2MN4GC634329” (“the subject vehicle”) and other records, including records showing the dates on which Defendant Safeway Auto Center Inc. (“Defendant”), or its representative, pulled, purchased, viewed, printed, or downloaded from Carfax any vehicle history report for the subject vehicle. (Id. Exh. 3.) Plaintiff contends that the vehicle history report provided by Safeway did not contain any information about damage to the subject vehicle. (Orenelas Decl. ¶ 3 and Exh. 1.) About three weeks after the purchase of the subject vehicle, Plaintiff obtained a Carfax vehicle history report showing a damage report from March 2017. (Id. ¶ 5 and Exh. 2.)
On July 24, 2019, Carfax objected to the subpoena on the grounds that it was unenforceable against Carfax as a non-resident and non-party and did not comply with the Uniform Interstate Depositions and Discovery Act (U adopted in Virginia, Carfax’s principal place of business. (Valdez Decl. ¶ 7 and Exh. 6; Sigurdson Decl. ¶ 2.) On July 25, 2019, Defendant Safeway filed a motion to quash the Subpoena and on September 9, 2019, Plaintiff filed a motion to compel compliance with the Subpoena for production of business records as to Carfax.
On October 2, 2019, Carfax filed an opposition in which it noted that it intends to respond to the subpoena to produce responsive, non-privileged documents. (Opp. p. 3:1-6; Sigurdson Decl. ¶ 10.) On November 12, 2019, Plaintiff filed a reply in which Plaintiff acknowledges that Carfax produced records and affidavits which address seven of the eight categories of requested documents in the Subpoena. (Reply p. 3-4:1-6; Valdez Reply Decl. ¶¶ 2-3.) Plaintiff contends that Carfax’s production is incomplete because Carfax did not produce documents as to Plaintiff’s request for records showing the dates Safeway or its representative pulled, purchased, viewed, printed or downloaded from Carfax any vehicle history report for the subject vehicle. (Reply p. 4:2-11.) Plaintiff states that to address the missing category, Carfax provided an unverified statement in wich it stated that Carfax has no records indicating that Safeway or any representative obtained from Carfax any vehicle history report for the subject vehicle. (Reply p. 4:12-17.) Therefore, the only request for production under the subpoena which appears to be at issue is the request for a record as to Safeway obtaining a Carfax history report for the subject vehicle.
II. Legal Standard
“A deposition subpoena that commands only the production of business records for copying shall
designate the business records to be produced either by specifically describing each individual
item or by reasonably particularizing each category of item, and shall specify the form in which
any electronically stored information is to be produced, if a particular form is desired.” (Code
Civ. Proc., § 2020.410, subd. (a).) “The ‘business records subpoena,’ an innovation of the 1986
Discovery Act (§ 2016 et seq.), commands the production of business records for copying
without attendance at a deposition, thus allowing parties to obtain ‘business records’ held by
nonparties by simply serving a business records subpoena. [Citation.]” (Urban Pacific Equities
Corp. v. Superior Court (1997) 59 Cal.App.4th 688, 692.) “The Civil Discovery Act refers to the
custodian of records as the ‘deponent.’ [Citations.] ‘A deposition subpoena which seeks only
business records simply allows a party to obtain these records without the formality of requiring
the testimony of the custodian.’ [Citation.]” (Naser v. Lakeridge Athletic Club (2014) 227
Cal.App.4th 571, 577.)
“If a deponent fails to answer any question or to produce any document, electronically stored
information, or tangible thing under the deponent's control that is specified in the deposition
notice or a deposition subpoena, the party seeking discovery may move the court for an order
compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).)
“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, 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.” (Code Civ. Proc., § 1987.1, subd. (a).)
Request for Judicial Notice:
Plaintiff’s request for judicial notice of California Secretary of State documents is granted pursuant to Cal. Evid. Code § 452.
A motion to compel deposition subpoena for production of business records “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.480, subd. (b).) Here, Plaintiff’s counsel declares that he spoke with Hillary Wulff at Carfax on July 9, 2019 and received a subsequent letter dated July 23, 2019 indicating that Carfax would not respond to the subpoena because it failed to comply with the UIDDA adopted in Virginia. (Valdez Decl. ¶ 7.) Carfax’s counsel, Sarah Sigurdson provides a declaration stating that Plaintiff’s counsel did not meet and confer with Carfax about the objections raised in Carfax’s July 24, 2019 letter. (Sigurdson Decl. ¶¶ 5-6.) However, Ms. Sigurdson also conversed with Plaintiff’s counsel via telephone on October 1, 2019. (Id. ¶ 9.) Therefore, the court is satisfied with the meet-and-confer effort and addresses the merits.
The outstanding issue in Plaintiff’s Subpoena seeks “[a]ll records showing the dates on which Safeway Auto Center, Inc. or any representative thereof, pulled, purchased, viewed, printed and/or downloaded from Carfax any vehicle history report for the 2016 Nissan Pathfinder, VIN: 5N1AR2MN4GC634329.” (Valdez Decl. Exh. 3.)
Code of Civil Procedure section 2026.010, entitled “Depositions in another state of the United States” provides that “[i]f the deponent is not a party to the action or an officer, director, managing agent, or employee of a party, a party serving a deposition notice under this section shall use any process and procedures required and available under the laws of the state, territory, or insular possession where the deposition is to be taken to compel the deponent to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection, copying, testing, sampling, and any related activity.” (Code Civ. Proc., § 2026.010.)
Carfax argues that Plaintiff has not properly requested discovery under the UIDDA in Virginia, Carfax’ principal place of business. (Sigurdson Decl. ¶ 3.) Va. Code Ann. section 8.01-412.14 states that “[i]n applying the construing the UIDDA, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. The privilege extended to persons in other states for discovery under this article shall only apply if the jurisdiction where the action is pending has extended a similar privilege to persons in [Virginia], by that jurisdiction’s enactment of the Uniform Interstate Depositions and Discovery Act.” (Va. Code Ann. § 8.01-412.14.)
California has also adopted a version of the Interstate and International Depositions Discovery Act under Code Civ. Proc., §§ 2029.100-2029.900. Therefore, pursuant to Code Civ. Proc., § 2026.010, Plaintiff must pursue compliance with the deposition records subpoena in Virginia, which is the jurisdiction in which she seeks discovery. Further, Code Civ. Proc., § 1987.3 provides that a subpoena duces tecum may served upon by the custodian of records or another qualified witness as provided in evidence code section 1560 even if the witness is not a resident of the state at the time of service. (see Code Civ. Proc., § 1987.3.) However, this section does not excuse compliance with Code Civ. Proc., § 2026.010. Rather, evidence code section 1560 explicitly notes that a subpoena served upon the custodian of records in which the business is neither a party not the place where any cause of action is alleged to have arisen should comply with Code Civ. Proc., § 2026.010. (Cal. Evid. Code § 1560.)
Accordingly, Plaintiff’s motion to compel is MOOT. As noted, pursuant to Code Civ. Proc., § 2026.010, Plaintiff must pursue compliance with the deposition subpoena in the jurisdiction in which she seeks the records. Since the records sought are out of the jurisdiction of this court, Defendant Safeway’s motion to quash is also MOOT.
As the motion is moot, the court finds sanctions are not warranted.
Moving party to give notice.