KENNETH COON VS HARD ROCK CAFE INTERNATIONAL INC ET AL

Tentative Rulings

Case Number: BC649241    Hearing Date: February 21, 2020    Dept: NCB

BACKGROUND

A. Allegations

Plaintiff Kenneth Coon (“Plaintiff”) commenced this action for negligence against various defendants on February 2, 2017. Plaintiff alleges he was on Universal City Walk near the front entrance of the Hard Rock Café (“Subject Premises”). He alleges that on February 7, 2015 at approximately 10:00 p.m., he slipped and fell on the Subject Premises due to a wet surface as it had been raining prior to or at about the time of the incident.

B. Motion on Calendar

On January 24, 2020, Plaintiff filed a motion to compel third party witness, Carlos Rivas, to appear for his deposition.

The Court is not in receipt of an opposition brief.

LEGAL STANDARD

If a subpoena requires the attendance of a witness or the production of documents, the court may, upon motion reasonably made, 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. (CCP §1987.1(a).) A party to the action may make such a motion pursuant to subdivision (a). (CCP §1987.1(b).)

DISCUSSION

Plaintiff moves to compel third party Carlos Rivas to attend his deposition. Plaintiff states that Mr. Rivas was the former manager of the subject Hard Rock Café where Plaintiff’s accident took place, as well as the person with the most knowledge regarding the time, reasons, and decisions regarding the placement location of mats/runners outside the Café when it rained, rain was anticipated, and on the accident date.

Plaintiff served Mr. Rivas with 2 deposition subpoenas for his personal appearance for deposition, such that his depositions were scheduled for August 28, 2018 and then on January 2, 2020. Plaintiff obtained a copy of the Notice of Taking Deposition and Court Reporter’s Certificate of Non Appearance for each depositions. (See Mot. at Exs. 1-2.) The proof of service accompanying the second deposition subpoena shows that the deposition subpoena was personally served on Mr. Rivas. (Mot. at Ex. 2.)

However, Plaintiff has not complied with California Rules of Court, Rule 3.1346, which provides that a written notice and all moving papers supporting a motion to compel an answer to a deposition question or production of documents 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. Here, the proof of service of the motion papers indicates that Mr. Rivas was served by electronic service on January 24, 2020. There is no indication that the moving papers were served on Mr. Rivas by personal service, or that Mr. Rivas agreed to service by electronic service.

As such, the motion is denied for failure to properly serve Mr. Rivas with the moving papers.

CONCLUSION AND ORDER

Plaintiff’s motion to compel third party witness, Carlos Rivas, to appear for his deposition is denied without prejudice.

Plaintiff shall provide notice of this order.