First District, Division 3 Resolves Conflict Between CCP sections 1987.5 and 2020.510(b).
A percipient nonparty witness was served with a deposition subpoena commanding him to give testimony and produce documents during the discovery process. However, the subpoena had no affidavit or declaration of good cause. Nonparty banked on the invalidity of the subpoena because Code of Civil Procedure section 1987.5 says that such a deposition subpoena is not valid unless a copy of the affidavit upon which the subpoena is based happens to be attached to the deposition notice. The lower court disagreed, sanctioning nonparty $2,265 for failure to appear at the scheduled deposition. Nonparty did not like the result (obviously), and appealed.
The First District, Division 3, in Terry v. SLICO, Case No. A123310 (1st Dist., Div. 3 June 25, 2009) (certified for publication), affirmed the sanctions order.
In contrast to section 1987.5, Code of Civil Procedure section 2020.510(b) provides that such a deposition subpoena “need not be accompanied by an affidavit or declaration showing good cause for the production of the documents and things designated.” So, how did the Court of Appeal resolve these dueling, contradictory provisions? They followed the lead of treatise and discovery commentators holding that the Civil Discovery Act provision (section 2020.510(b)) prevails. That meant the sanctions order was not an abuse of discretion.
BLOG UNDERVIEW—Co-contributor Mike notices that Bob Huddleston, who practices in Walnut Creek, represented the winning party in this appeal. Mike and Bob clashed in a lender-borrower case in Contra Costa County Superior Court that was eventually resolved in a judicial reference proceeding before Retired Justice Nat Agliano, who is now affiliated with JAMS (and was a former Monterey County Superior Court Judge and former Presiding Justice of the Sixth District Court of Appeal). Mike sends greetings to both Mr. Huddleston and Retired Justice Agliano, if they happen to be reading!