Citizens Business Bank v. Gordon Hay, Inc., et al

In reply, Citizens argues this is insufficient to justify Borba’s attendance and notes no efforts were made to obtain the necessary information Borba possesses through less intrusive means.

The Court denies the motion to quash Borba’s appearance at trial. Each of the cited cases by the parties involve a motion to quash an apex witness’s deposition rather than appearance at trial. Given trial is looming on August 31, 2026, it would be difficult for GHI to pursue alternate methods of obtaining the subject information. Furthermore, while the notice to appear summoned many Citizens’ employees and personnel, it is unclear just how large of an organization Citizens

is and how much of an inconvenience this would be. Most importantly however, Craig’s declaration demonstrates Borba is a percipient witness. DeBIE DeBie is Citizens’ Assistant Vice President-Dairy & Livestock Operations Manager. (Darling Decl., ¶7(d).) Citizens argues DeBie is not subject to a notice to appear because she is not an “officer, director, or managing agent.” Citizens argues GHI has fails to demonstrate DeBie falls under any of these categories. Indeed, the opposition never explains whether DeBie is an officer, director, or managing agent. Craig declares however, that DeBie was the person Craig often spoke with when documents needed to be exchanged or signed and is the primary contact at Citizens’ Chino branch for interactions with GHI regarding account payments and executing bank documents. (Gordon Decl., ¶3.)

Code of Civil Procedure section 1987, subdivision, provides in pertinent part: In the case of the production of a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person, the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person...

The parties dispute who has the burden on this motion—i.e., whether Citizens has the burden of demonstrating DeBie is not a qualifying officer, director of managing agent, or GHI has the burden of demonstrating DeBie does qualify under one of those categories. Both parties cite to Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793, but Floveyor involved a motion to quash service of summons, which is qualitatively different than this motion to quash a notice to appear.

The key question is whether good cause exists to justify the notice to appear or not. In Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, the Court of Appeal focused on the party’s ability to compel a witness to attend deposition. The Court noted failure of a party-affiliated deponent to obey a court order or attend a deposition is sanctionable against the party. (Id. at p. 600.) However, if the deponent is not a party or partyaffiliated, there is no such authority to sanction. (Ibid.) “By creating this distinction, the Legislature necessarily recognized a party should not be sanctioned if it had no legal or practical means to require the nonparty deponent to attend his or her deposition.” (Ibid.)

Citizens insists GHI must prove that not only is DeBie party-affiliated, but that she is an officer, director, or managing agent in order for GHI to avoid service of a subpoena on DeBie. As indicated, neither party provides clear evidence demonstrating DeBie either is or is not an officer, director, or managing agent. Lopez is distinguishable because it involved an effort to notice (rather than subpoena) corporate personnel for purposes of deposition rather than trial. Citizens correctly notes a notice to appear is permissible to compel any employee to appear at deposition (Lopez, supra, 246 Cal.App.4th at p. 600), while a notice to appear for trial is limited to officers, directors, and managing agents (Code Civ. Proc., §1987, subd. (b).)

DeBie has an important-sounding title as Assistant Vice President-Dairy & Livestock Operations Manager, and as Citizens correctly notes, title alone is not determinative, but by the same token Citizens could have easily provided evidence showing she is not an officer, director, or managing agent, but did not do so. There is no reason to think as a practical matter Citizens cannot compel DeBie’s attendance at trial. For these reasons, Court denies the motion to quash as to DeBie as well.

Dated: August 4, 2026

____________________________ Judge Kory Mathewson

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