California Shellfish, Inc. v. United Shellfish Co.

I respectfully dissent. On the face of the discovery statutes themselves, the 20-day waiting period for oral depositions (Code Civ. Proc., § 2025, subd. (b)) does not apply to a deposition for production of business records from a nonparty. 1 The majority acknowledges the statutory omission but concludes that the 20-day waiting period of section 2025, subdivision (b), nevertheless applies because a deposition for production of business records is equivalent to an oral deposition. I cannot concur in the majority’s reading of the statutory language. It may well be that the omission of a waiting period was a legislative oversight, but, if that is so, then I believe it must be the Legislature which corrects the omission.

1. Methods of Discovery

Section 2020 expressly identifies three ways to obtain discovery from a nonparty: “The method for obtaining discovery within the state from one who is not a party to the action is an oral deposition under Section 2025, a written deposition under Section 2028, or a deposition for production of business records and things under subdivisions (d) and (e).” (Italics added.) The first two methods—an oral deposition under section 2025 or a written…

*19 Opinion

This appeal presents the question whether a plaintiff may serve nonparty witnesses with a deposition subpoena seeking discovery of business records before serving the summons and complaint on the only named defendant, and without notice of the deposition to any defendant. Plaintiff and appellant, California Shellfish, Inc., also challenges an award of sanctions in the amount of $764. We shall find no error in the trial court’s order quashing the deposition subpoenas, or in the award of sanctions, and affirm the judgment.

Procedural Background

In 1992, plaintiff sold seafood to defendant United Shellfish Co. and was owed approximately $60,000. In 1995, after attempts to negotiate a settlement of its claim failed, plaintiff filed suit to recover money owed, but had trouble with service of process. Defendant, United Shellfish Co., was a sole proprietorship owned by Joseph Svedise, who had died in 1993. Plaintiff served a copy of the complaint and a summons upon Joseph Svedise’s widow, Carola Svedise, as an agent of United Shellfish Co., which the summons described as a corporation, or as a “Business Organization, Form Unknown,” in the belief that she was the sole heir…

STEIN, Acting P.J.

This appeal presents the question whether a plaintiff may serve nonparty witnesses with a deposition subpoena seeking discovery of business records before serving the summons and complaint on the only named defendant, and without notice of the deposition to any defendant. Plaintiff and appellant, California Shellfish, Inc., also challenges an award of sanctions in the amount of $764. We shall find no error in the trial court's order quashing the deposition subpoenas, or in the award of sanctions, and affirm the judgment.

In 1992, plaintiff sold seafood to defendant United Shellfish Co. and was owed approximately $60,000. In 1995, after attempts to negotiate a settlement of its claim failed, plaintiff filed suit to recover money owed, but had trouble with service of process. Defendant, United Shellfish Co., was a sole proprietorship owned by Joseph Svedise, who had died in 1993. Plaintiff served a copy of the complaint and a summons upon Joseph Svedise's widow, Carola Svedise, as an agent of United Shellfish Co., which the summons described as a corporation, or as a "Business Organization, Form Unknown," in the belief that she was the sole heir to the…