Ronald L. Curd vs. Marriot International, Inc.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court

34-2020-00287359-CU-PO-GDS: Ronald L. Curd vs. Marriot International, Inc. 09/15/2025 Hearing on Motion - Other to Enforce the California Rehabilitation Center's Compliance with a Consumer Records Subpoena in Department 53

Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing party and advise of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact opposing party to the hearing, moving counsel is ordered to appear at the hearing by Zoom or in person.

The motion of Defendants Apple Nine Hospitality Management, Inc. and Springhill SMC, LLC (collectively, “Defendants”) for an Order Compelling Compliance with a Subpoena Duces Tecum for Consumer Records issued to the California Rehabilitation Center (“CRC”) is unopposed but DROPPED due to defective service.

This is a personal injury action. As pertinent here, on April 23, 2025, Defendants served a subpoena duces tecum on Plaintiff’s counsel (as Plaintiff was represented at the time) regarding telephone call recordings and call logs between inmate Sean Bethel (“Mr. Bethel”) (CDCR No. BY0012) and Plaintiff from January 1, 2023, to the present. (Graziani Decl., ¶ 2.) On April 28, 2025, Defendants personally served the subpoena duces tecum on CRC, which also included a Notice to Consumer to Mr. Bethel. (Ibid., see also id. at Exh. A.) On April 28, 2025, Plaintiff’s counsel served written objections, on various grounds including overbreadth and privacy. (Id., at ¶ 4, Exh. B.)

On May 16, 2025, Defendants filed this instant motion. Defendants move pursuant to Code of Civil Procedure sections 1985.3, 1987.1, and 2020.510, and seek the production of audio recordings and call logs of inmate Sean Bethel’s (Mr. Bethel) telephone communications with Plaintiff in pro per Ronald L. Curd (“Plaintiff”), from January 1, 2023 to the present. (See Ntc., p. 2:8-12.) Defendants contend that through their investigation they have learned Plaintiff discussed his injuries with Mr. Bethel over the telephone, that these telephone calls were recorded and logged (as Mr. Bethel is presently incarcerated at CRC), and that these recordings/call logs would not only be relevant but also critical to the defense of this case, particularly regarding impeachment,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00287359-CU-PO-GDS: Ronald L. Curd vs. Marriot International, Inc. 09/15/2025 Hearing on Motion - Other to Enforce the California Rehabilitation Center's Compliance with a Consumer Records Subpoena in Department 53

damages, and the plaintiff’s overall credibility.

Defendants also maintain that counsel has been “informed and believe[s]” that Mr. Bethel has received notice of the subpoena at issue and has not taken any action to object or otherwise prevent the production of the records despite being given the chance to. (Simmen Decl., ¶ 33, Exh. F.)

Despite this, and despite efforts to meet and confer, Plaintiff has been unagreeable to withdraw his counsel’s objection to the subpoena. In this regard, Defendants contend this motion became necessary. Relatedly, while it appears Defendants request sanctions (see Mov. P&A, p 13:5-15), the notice of motion fails to specify the amount of sanctions and whom sanctions are sought.[1]

Nevertheless, this motion must be DROPPED due to defective service. First, upon review of the corresponding proofs of service for this motion, it is unclear whether CRC was also served via personal service (Compare “Service List” Plaintiff and Plaintiff’s former counsel [indicating each were served “Via Personal Service”] with CRC [no indication of personal service].) Motions must be personally served on non-party deponents, unless the non-party deponent agrees to accept service by mail or electronic service. (California Rules of Court, rule 3.1346; see also Code of Civil Procedure, § 2020.010.) While there is an indication that CRC was agreeable to communication via email, there does not appear to be a similar agreement for service. (See Simmen Decl., ¶ 33, Exh. F.)

Furthermore, even if CRC was properly served (via personal service), this motion must still be dropped as it is unclear that Defendants complied with the necessary notice requirements pursuant to Code of Civil Procedure section 1985.3. Service of a deposition subpoena for the personal records or a consumer must be accompanied by either (1) the consumer’s written release of the records or (2) proof of service of a special notice to the consumer that the records are being subpoenaed. (Code Civ. Proc., §§ 2020.501(c), 1985.3(e).

Code of Civil Procedure section 1985.3(b) requires that a copy of the subpoena and notice of privacy rights be served on the person whom the records relate. The proof of service must show that the documents were served on the “consumer” either in person or by mail. (Ibid.) Here, according to the corresponding proofs of service, it is unclear whether Mr. Bethel was ever served with the subpoena or the notice to consumer. The proofs of service indicate service of the notice to consumer was made to “Sean Bethel and/or Attorney of Record,” but lists Plaintiff’s former counsel as the recipient. (See

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00287359-CU-PO-GDS: Ronald L. Curd vs. Marriot International, Inc. 09/15/2025 Hearing on Motion - Other to Enforce the California Rehabilitation Center's Compliance with a Consumer Records Subpoena in Department 53

Graziani Decl., Exh. A.) It also appears service was made on CRC’s custodian of records, an individual named Elizabeth Scambler, and mailed to a P.O. box at Norco. (Ibid.) However, there is no clear indication that Mr. Bethel himself was served with the subpoena or the notice to consumer.

As to the written release requirement, the Court notes, Defendants have also included an email, dated May 6, 2025, from “J. Morris,” a correctional counselor II at CRC, wherein they state: “Sean Bethel has agreed to the release of said records.” (Graziani Decl., Exh. A.) To the extent that Defendants may argue that this was a sufficient “written release,” the Court is not persuaded that an email from a CRC employee would otherwise satisfy the “written release” requirement. Indeed, Code of Civil Procedure sections 1985.3(c) and 2020.410(d) necessitate a consumer’s written authorization, signed by the consumer or by his/her attorney of record.

Failure to comply with procedures set forth in Code of Civil Procedure section 1985.3, by itself, invalidates service. (Code Civ. Proc., § 1985.3(k).)

Defective service deprives the court of jurisdiction (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509), and requires the motion be dropped.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules Court, rule 3.1312.)

Indeed, Code Civil Procedure section 2023.040 requires that a request for sanction

shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought.