1985-1997
CODE OF CIVIL PROCEDURE
SECTION 1985-1997
1985. (a) The process by which the attendance of a witness is
required is the subpoena. It is a writ or order directed to a person
and requiring the person's attendance at a particular time and place
to testify as a witness. It may also require a witness to bring any
books, documents, or other things under the witness's control which
the witness is bound by law to produce in evidence. When a county
recorder is using the microfilm system for recording, and a witness
is subpoenaed to present a record, the witness shall be deemed to
have complied with the subpoena if the witness produces a certified
copy thereof.
(b) A copy of an affidavit shall be served with a subpoena duces
tecum issued before trial, showing good cause for the production of
the matters and things described in the subpoena, specifying the
exact matters or things desired to be produced, setting forth in full
detail the materiality thereof to the issues involved in the case,
and stating that the witness has the desired matters or things in his
or her possession or under his or her control.
(c) The clerk, or a judge, shall issue a subpoena or subpoena
duces tecum signed and sealed but otherwise in blank to a party
requesting it, who shall fill it in before service. An attorney at
law who is the attorney of record in an action or proceeding, may
sign and issue a subpoena to require attendance before the court in
which the action or proceeding is pending or at the trial of an issue
therein, or upon the taking of a deposition in an action or
proceeding pending therein; the subpoena in such a case need not be
sealed. An attorney at law who is the attorney of record in an action
or proceeding, may sign and issue a subpoena duces tecum to require
production of the matters or things described in the subpoena.
1985.1. Any person who is subpoenaed to appear at a session of
court, or at the trial of an issue therein, may, in lieu of
appearance at the time specified in the subpoena, agree with the
party at whose request the subpoena was issued to appear at another
time or upon such notice as may be agreed upon. Any failure to appear
pursuant to such agreement may be punished as a contempt by the
court issuing the subpoena. The facts establishing or disproving such
agreement and the failure to appear may be proved by an affidavit of
any person having personal knowledge of the facts.
1985.2. Any subpoena which requires the attendance of a witness at
any civil trial shall contain the following notice in a type face
designed to call attention to the notice:
Contact the attorney requesting this subpoena, listed above,
before the date on which you are required to be in court, if you have
any question about the time or date for you to appear, or if you
want to be certain that your presence in court is required.
1985.3. (a) For purposes of this section, the following definitions
apply:
(1) "Personal records" means the original, any copy of books,
documents, other writings, or electronic data pertaining to a
consumer and which are maintained by any "witness" which is a
physician, dentist, ophthalmologist, optometrist, chiropractor,
physical therapist, acupuncturist, podiatrist, veterinarian,
veterinary hospital, veterinary clinic, pharmacist, pharmacy,
hospital, medical center, clinic, radiology or MRI center, clinical
or diagnostic laboratory, state or national bank, state or federal
association (as defined in Section 5102 of the Financial Code), state
or federal credit union, trust company, anyone authorized by this
state to make or arrange loans that are secured by real property,
security brokerage firm, insurance company, title insurance company,
underwritten title company, escrow agent licensed pursuant to
Division 6 (commencing with Section 17000) of the Financial Code or
exempt from licensure pursuant to Section 17006 of the Financial
Code, attorney, accountant, institution of the Farm Credit System, as
specified in Section 2002 of Title 12 of the United States Code, or
telephone corporation which is a public utility, as defined in
Section 216 of the Public Utilities Code, or psychotherapist, as
defined in Section 1010 of the Evidence Code, or a private or public
preschool, elementary school, secondary school, or postsecondary
school as described in Section 76244 of the Education Code.
(2) "Consumer" means any individual, partnership of five or fewer
persons, association, or trust which has transacted business with, or
has used the services of, the witness or for whom the witness has
acted as agent or fiduciary.
(3) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding pursuant to this code, but shall not
include the state or local agencies described in Section 7465 of the
Government Code, or any entity provided for under Article VI of the
California Constitution in any proceeding maintained before an
adjudicative body of that entity pursuant to Chapter 4 (commencing
with Section 6000) of Division 3 of the Business and Professions
Code.
(4) "Deposition officer" means a person who meets the
qualifications specified in Section 2020.420.
(b) Prior to the date called for in the subpoena duces tecum for
the production of personal records, the subpoenaing party shall serve
or cause to be served on the consumer whose records are being sought
a copy of the subpoena duces tecum, of the affidavit supporting the
issuance of the subpoena, if any, and of the notice described in
subdivision (e), and proof of service as indicated in paragraph (1)
of subdivision (c). This service shall be made as follows:
(1) To the consumer personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 3, or, if he or she is a party, to his or
her attorney of record. If the consumer is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor or with whom the minor resides or by whom the
minor is employed, and on the minor if the minor is at least 12
years of age.
(2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the
records, plus the additional time provided by Section 1013 if service
is by mail.
(c) Prior to the production of the records, the subpoenaing party
shall do either of the following:
(1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
subdivision (b).
(2) Furnish the witness a written authorization to release the
records signed by the consumer or by his or her attorney of record.
The witness may presume that any attorney purporting to sign the
authorization on behalf of the consumer acted with the consent of the
consumer, and that any objection to release of records is waived.
(d) A subpoena duces tecum for the production of personal records
shall be served in sufficient time to allow the witness a reasonable
time, as provided in Section 2020.410, to locate and produce the
records or copies thereof.
(e) Every copy of the subpoena duces tecum and affidavit, if any,
served on a consumer or his or her attorney in accordance with
subdivision (b) shall be accompanied by a notice, in a typeface
designed to call attention to the notice, indicating that (1) records
about the consumer are being sought from the witness named on the
subpoena; (2) if the consumer objects to the witness furnishing the
records to the party seeking the records, the consumer must file
papers with the court or serve a written objection as provided in
subdivision (g) prior to the date specified for production on the
subpoena; and (3) if the party who is seeking the records will not
agree in writing to cancel or limit the subpoena, an attorney should
be consulted about the consumer's interest in protecting his or her
rights of privacy. If a notice of taking of deposition is also
served, that other notice may be set forth in a single document with
the notice required by this subdivision.
(f) A subpoena duces tecum for personal records maintained by a
telephone corporation which is a public utility, as defined in
Section 216 of the Public Utilities Code, shall not be valid or
effective unless it includes a consent to release, signed by the
consumer whose records are requested, as required by Section 2891 of
the Public Utilities Code.
(g) Any consumer whose personal records are sought by a subpoena
duces tecum and who is a party to the civil action in which this
subpoena duces tecum is served may, prior to the date for production,
bring a motion under Section 1987.1 to quash or modify the subpoena
duces tecum. Notice of the bringing of that motion shall be given to
the witness and deposition officer at least five days prior to
production. The failure to provide notice to the deposition officer
shall not invalidate the motion to quash or modify the subpoena duces
tecum but may be raised by the deposition officer as an affirmative
defense in any action for liability for improper release of records.
Any other consumer or nonparty whose personal records are sought
by a subpoena duces tecum may, prior to the date of production, serve
on the subpoenaing party, the witness, and the deposition officer, a
written objection that cites the specific grounds on which
production of the personal records should be prohibited.
No witness or deposition officer shall be required to produce
personal records after receipt of notice that the motion has been
brought by a consumer, or after receipt of a written objection from a
nonparty consumer, except upon order of the court in which the
action is pending or by agreement of the parties, witnesses, and
consumers affected.
The party requesting a consumer's personal records may bring a
motion under Section 1987.1 to enforce the subpoena within 20 days of
service of the written objection. The motion shall be accompanied by
a declaration showing a reasonable and good faith attempt at
informal resolution of the dispute between the party requesting the
personal records and the consumer or the consumer's attorney.
(h) Upon good cause shown and provided that the rights of
witnesses and consumers are preserved, a subpoenaing party shall be
entitled to obtain an order shortening the time for service of a
subpoena duces tecum or waiving the requirements of subdivision (b)
where due diligence by the subpoenaing party has been shown.
(i) Nothing contained in this section shall be construed to apply
to any subpoena duces tecum which does not request the records of any
particular consumer or consumers and which requires a custodian of
records to delete all information which would in any way identify any
consumer whose records are to be produced.
(j) This section shall not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200), of the Labor Code.
(k) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the personal records sought by a
subpoena duces tecum.
(l) If the subpoenaing party is the consumer, and the consumer is
the only subject of the subpoenaed records, notice to the consumer,
and delivery of the other documents specified in subdivision (b) to
the consumer, is not required under this section.
1985.4. The procedures set forth in Section 1985.3 are applicable
to a subpoena duces tecum for records containing "personal
information," as defined in Section 1798.3 of the Civil Code which
are otherwise exempt from public disclosure under Section 6254 of the
Government Code which are maintained by a state or local agency as
defined in Section 6252 of the Government Code. For the purposes of
this section, "witness" means a state or local agency as defined in
Section 6252 of the Government Code and "consumer" means any employee
of any state or local agency as defined in Section 6252 of the
Government Code, or any other natural person. Nothing in this section
shall pertain to personnel records as defined in Section 832.8 of
the Penal Code.
1985.5. If a subpena requires the attendance of a witness before an
officer or commissioner out of court, it shall, for a refusal to be
sworn, or to answer as a witness, or to subscribe an affidavit or
deposition when required, also require the witness to attend a
session of the court issuing the subpena at a time and place thereof
to be fixed by said officer or commissioner.
1985.6. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Deposition officer" means a person who meets the
qualifications specified in Section 2020.420.
(2) "Employee" means any individual who is or has been employed by
a witness subject to a subpoena duces tecum. "Employee" also means
any individual who is or has been represented by a labor organization
that is a witness subject to a subpoena duces tecum.
(3) "Employment records" means the original or any copy of books,
documents, other writings, or electronic data pertaining to the
employment of any employee maintained by the current or former
employer of the employee, or by any labor organization that has
represented or currently represents the employee.
(4) "Labor organization" has the meaning set forth in Section 1117
of the Labor Code.
(5) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding, but does not include the state or local
agencies described in Section 7465 of the Government Code, or any
entity provided for under Article VI of the California Constitution
in any proceeding maintained before an adjudicative body of that
entity pursuant to Chapter 4 (commencing with Section 6000) of
Division 3 of the Business and Professions Code.
(b) Prior to the date called for in the subpoena duces tecum of
the production of employment records, the subpoenaing party shall
serve or cause to be served on the employee whose records are being
sought a copy of: the subpoena duces tecum; the affidavit supporting
the issuance of the subpoena, if any; the notice described in
subdivision (e); and proof of service as provided in paragraph (1) of
subdivision (c). This service shall be made as follows:
(1) To the employee personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 2, or, if he or she is a party, to his or
her attorney of record. If the employee is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor, or with whom the minor resides, and on the
minor if the minor is at least 12 years of age.
(2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the
employment records, plus the additional time provided by Section 1013
if service is by mail.
(c) Prior to the production of the records, the subpoenaing party
shall either:
(1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
subdivision (b).
(2) Furnish the witness a written authorization to release the
records signed by the employee or by his or her attorney of record.
The witness may presume that the attorney purporting to sign the
authorization on behalf of the employee acted with the consent of the
employee, and that any objection to the release of records is
waived.
(d) A subpoena duces tecum for the production of employment
records shall be served in sufficient time to allow the witness a
reasonable time, as provided in Section 2020.410, to locate and
produce the records or copies thereof.
(e) Every copy of the subpoena duces tecum and affidavit served on
an employee or his or her attorney in accordance with subdivision
(b) shall be accompanied by a notice, in a typeface designed to call
attention to the notice, indicating that (1) employment records about
the employee are being sought from the witness named on the
subpoena; (2) the employment records may be protected by a right of
privacy; (3) if the employee objects to the witness furnishing the
records to the party seeking the records, the employee shall file
papers with the court prior to the date specified for production on
the subpoena; and (4) if the subpoenaing party does not agree in
writing to cancel or limit the subpoena, an attorney should be
consulted about the employee's interest in protecting his or her
rights of privacy. If a notice of taking of deposition is also
served, that other notice may be set forth in a single document with
the notice required by this subdivision.
(f) (1) Any employee whose employment records are sought by a
subpoena duces tecum may, prior to the date for production, bring a
motion under Section 1987.1 to quash or modify the subpoena duces
tecum. Notice of the bringing of that motion shall be given to the
witness and the deposition officer at least five days prior to
production. The failure to provide notice to the deposition officer
does not invalidate the motion to quash or modify the subpoena duces
tecum but may be raised by the deposition officer as an affirmative
defense in any action for liability for improper release of records.
(2) Any nonparty employee whose employment records are sought by a
subpoena duces tecum may, prior to the date of production, serve on
the subpoenaing party, the deposition officer, and the witness a
written objection that cites the specific grounds on which production
of the employment records should be prohibited.
(3) No witness or deposition officer shall be required to produce
employment records after receipt of notice that the motion has been
brought by an employee, or after receipt of a written objection from
a nonparty employee, except upon order of the court in which the
action is pending or by agreement of the parties, witnesses, and
employees affected.
(4) The party requesting an employee's employment records may
bring a motion under subdivision (c) of Section 1987 to enforce the
subpoena within 20 days of service of the written objection. The
motion shall be accompanied by a declaration showing a reasonable and
good faith attempt at informal resolution of the dispute between the
party requesting the employment records and the employee or the
employee's attorney.
(g) Upon good cause shown and provided that the rights of
witnesses and employees are preserved, a subpoenaing party shall be
entitled to obtain an order shortening the time for service of a
subpoena duces tecum or waiving the requirements of subdivision (b)
if due diligence by the subpoenaing party has been shown.
(h) This section may not be construed to apply to any subpoena
duces tecum that does not request the records of any particular
employee or employees and that requires a custodian of records to
delete all information that would in any way identify any employee
whose records are to be produced.
(i) This section does not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200), of the Labor Code.
(j) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the employment records sought by
subpoena duces tecum.
(k) If the subpoenaing party is the employee, and the employee is
the only subject of the subpoenaed records, notice to the employee,
and delivery of the other documents specified in subdivision (b) to
the employee, are not required under this section.
1985.7. When a medical provider fails to comply with Section 1158
of the Evidence Code, in addition to any other available remedy, the
demanding party may apply to the court for an order to show cause why
the records should not be produced.
Any order to show cause issued pursuant to this section shall be
served upon respondent in the same manner as a summons. It shall be
returnable no sooner than 20 days after issuance unless ordered
otherwise upon a showing of substantial hardship. The court shall
impose monetary sanctions pursuant to Section 1158 of the Evidence
Code unless it finds that the person subject to the sanction acted
with substantial justification or that other circumstances make the
imposition of the sanction unjust.
1985.8. (a) (1) A subpoena in a civil proceeding may require that
electronically stored information, as defined in Section 2016.020, be
produced and that the party serving the subpoena, or someone acting
on the party's request, be permitted to inspect, copy, test, or
sample the information.
(2) Any subpoena seeking electronically stored information shall
comply with the requirements of this chapter.
(b) A party serving a subpoena requiring production of
electronically stored information may specify the form or forms in
which each type of information is to be produced.
(c) Unless the subpoenaing party and the subpoenaed party
otherwise agree or the court otherwise orders, the following shall
apply:
(1) If a subpoena requiring production of electronically stored
information does not specify a form or forms for producing a type of
electronically stored information, the person subpoenaed shall
produce the information in the form or forms in which it is
ordinarily maintained or in a form that is reasonably usable.
(2) A subpoenaed person need not produce the same electronically
stored information in more than one form.
(d) The subpoenaed person opposing the production, inspection,
copying, testing, or sampling of electronically stored information on
the basis that information is from a source that is not reasonably
accessible because of undue burden or expense shall bear the burden
of demonstrating that the information is from a source that is not
reasonably accessible because of undue burden or expense.
(e) If the person from whom discovery of electronically stored
information is subpoenaed establishes that the information is from a
source that is not reasonably accessible because of undue burden or
expense, the court may nonetheless order discovery if the subpoenaing
party shows good cause, subject to any limitations imposed under
subdivision (h).
(f) If the court finds good cause for the production of
electronically stored information from a source that is not
reasonably accessible, the court may set conditions for the discovery
of the electronically stored information, including allocation of
the expense of discovery.
(g) If necessary, the subpoenaed person, at the reasonable expense
of the subpoenaing party, shall, through detection devices,
translate any data compilations included in the subpoena into a
reasonably usable form.
(h) The court shall limit the frequency or extent of discovery of
electronically stored information, even from a source that is
reasonably accessible, if the court determines that any of the
following conditions exists:
(1) It is possible to obtain the information from some other
source that is more convenient, less burdensome, or less expensive.
(2) The discovery sought is unreasonably cumulative or
duplicative.
(3) The party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought.
(4) The likely burden or expense of the proposed discovery
outweighs the likely benefit, taking into account the amount in
controversy, the resources of the parties, the importance of the
issues in the litigation, and the importance of the requested
discovery in resolving the issues.
(i) If a subpoenaed person notifies the subpoenaing party that
electronically stored information produced pursuant to a subpoena is
subject to a claim of privilege or of protection as attorney work
product, as described in Section 2031.285, the provisions of Section
2031.285 shall apply.
(j) A party serving a subpoena requiring the production of
electronically stored information shall take reasonable steps to
avoid imposing undue burden or expense on a person subject to the
subpoena.
(k) An order of the court requiring compliance with a subpoena
issued under this section shall protect a person who is neither a
party nor a party's officer from undue burden or expense resulting
from compliance.
(l) (1) Absent exceptional circumstances, the court shall not
impose sanctions on a subpoenaed person or any attorney of a
subpoenaed person for failure to provide electronically stored
information that has been lost, damaged, altered, or overwritten as
the result of the routine, good faith operation of an electronic
information system.
(2) This subdivision shall not be construed to alter any
obligation to preserve discoverable information.
1986. A subpoena is obtainable as follows:
(a) To require attendance before a court, or at the trial of an
issue therein, or upon the taking of a deposition in an action or
proceeding pending therein, it is obtainable from the clerk of the
court in which the action or proceeding is pending.
(b) To require attendance before a commissioner appointed to take
testimony by a court of a foreign country, or of the United States,
or of any other state in the United States, or before any officer or
officers empowered by the laws of the United States to take
testimony, it may be obtained from the clerk of the superior court of
the county in which the witness is to be examined.
(c) To require attendance out of court, in cases not provided for
in subdivision (a), before a judge, justice, or other officer
authorized to administer oaths or take testimony in any matter under
the laws of this state, it is obtainable from the judge, justice, or
other officer before whom the attendance is required.
If the subpoena is to require attendance before a court, or at the
trial of an issue therein, it is obtainable from the clerk, as of
course, upon the application of the party desiring it. If it is
obtained to require attendance before a commissioner or other officer
upon the taking of a deposition, it must be obtained, as of course,
from the clerk of the superior court of the county wherein the
attendance is required upon the application of the party requiring
it.
1986.1. (a) No testimony or other evidence given by a journalist
under subpoena in a civil or criminal proceeding may be construed as
a waiver of the immunity rights provided by subdivision (b) of
Section 2 of Article I of the California Constitution.
(b) Because important constitutional rights of a third-party
witness are adjudicated when rights under subdivision (b) of Section
2 of Article I of the California Constitution are asserted, except in
exigent circumstances a journalist who is subpoenaed in any civil or
criminal proceeding shall be given at least five days' notice by the
party issuing the subpoena that his or her appearance will be
required.
(c) If a trial court holds a journalist in contempt of court in a
criminal proceeding notwithstanding subdivision (b) of Section 2 of
Article I of the California Constitution, the court shall set forth
findings, either in writing or on the record, stating at a minimum,
why the information will be of material assistance to the party
seeking the evidence, and why alternate sources of the information
are not sufficient to satisfy the defendant's right to a fair trial
under the Sixth Amendment to the United States Constitution and
Section 15 of Article I of the California Constitution.
(d) As used in this section, "journalist" means the persons
specified in subdivision (b) of Section 2 of Article I of the
California Constitution.
1986.5. Any person who is subpoenaed and required to give a
deposition shall be entitled to receive the same witness fees and
mileage as if the subpoena required him or her to attend and testify
before a court in which the action or proceeding is pending.
Notwithstanding this requirement, the only fees owed to a witness who
is required to produce business records under Section 1560 of the
Evidence Code pursuant to a subpoena duces tecum, but who is not
required to personally attend a deposition away from his or her place
of business, shall be those prescribed in Section 1563 of the
Evidence Code.
1987. (a) Except as provided in Sections 68097.1 to 68097.8,
inclusive, of the Government Code, the service of a subpoena is made
by delivering a copy, or a ticket containing its substance, to the
witness personally, giving or offering to the witness at the same
time, if demanded by him or her, the fees to which he or she is
entitled for travel to and from the place designated, and one day's
attendance there. The service shall be made so as to allow the
witness a reasonable time for preparation and travel to the place of
attendance. The service may be made by any person. If service is to
be made on a minor, service shall be made on the minor's parent,
guardian, conservator, or similar fiduciary, or if one of those
persons cannot be located with reasonable diligence, service shall be
made on any person having the care or control of the minor or with
whom the minor resides or by whom the minor is employed, and on the
minor if the minor is 12 years of age or older. If the minor is
alleged to come within the description of Section 300, 601, or 602 of
the Welfare and Institutions Code and the minor is not in the
custody of a parent or guardian, regardless of the age of the minor,
service also shall be made upon the designated agent for service of
process at the county child welfare department or the probation
department under whose jurisdiction the minor has been placed.
(b) 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
notice shall be served at least 10 days before the time required for
attendance unless the court prescribes a shorter time. If entitled
thereto, the witness, upon demand, shall be paid witness fees and
mileage before being required to testify. The giving of the notice
shall have the same effect as service of a subpoena on the witness,
and the parties shall have those rights and the court may make those
orders, including the imposition of sanctions, as in the case of a
subpoena for attendance before the court.
(c) If the notice specified in subdivision (b) is served at least
20 days before the time required for attendance, or within any
shorter period of time as the court may order, it may include a
request that the party or person bring with him or her books,
documents or other things. The notice shall state the exact materials
or things desired and that the party or person has them in his or
her possession or under his or her control. Within five days
thereafter, or any other time period as the court may allow, the
party or person of whom the request is made may serve written
objections to the request or any part thereof, with a statement of
grounds. Thereafter, upon noticed motion of the requesting party,
accompanied by a showing of good cause and of materiality of the
items to the issues, the court may order production of items to which
objection was made, unless the objecting party or person establishes
good cause for nonproduction or production under limitations or
conditions. The procedure of this subdivision is alternative to the
procedure provided by Sections 1985 and 1987.5 in the cases herein
provided for, and no subpoena duces tecum shall be required.
Subject to this subdivision, the notice provided in this
subdivision shall have the same effect as is provided in subdivision
(b) as to a notice for attendance of that party or person.
1987.1. (a) If a subpoena requires the attendance of a witness or
the production of books, documents, or other things before a court,
or at the trial of an issue therein, or at the taking of a
deposition, the court, upon motion reasonably made by any person
described in subdivision (b), or upon the court's own motion after
giving counsel notice and an opportunity to be heard, 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. In addition, the court may make
any other order as may be appropriate to protect the person from
unreasonable or oppressive demands, including unreasonable violations
of the right of privacy of the person.
(b) The following persons may make a motion pursuant to
subdivision (a):
(1) A party.
(2) A witness.
(3) A consumer described in Section 1985.3.
(4) An employee described in Section 1985.6.
(5) A person whose personally identifying information, as defined
in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought
in connection with an underlying action involving that person's
exercise of free speech rights.
(c) Nothing in this section shall require any person to move to
quash, modify, or condition any subpoena duces tecum of personal
records of any consumer served under paragraph (1) of subdivision (b)
of Section 1985.3 or employment records of any employee served under
paragraph (1) of subdivision (b) of Section 1985.6.
1987.2. (a) Except as specified in subdivision (b), in making an
order pursuant to motion made under subdivision (c) of Section 1987
or under Section 1987.1, the court may in its discretion award the
amount of the reasonable expenses incurred in making or opposing the
motion, including reasonable attorney's fees, if the court finds the
motion was made or opposed in bad faith or without substantial
justification or that one or more of the requirements of the subpoena
was oppressive.
(b) If a motion is filed under Section 1987.1 for an order to
quash or modify a subpoena from a court of this state for personally
identifying information, as defined in subdivision (b) of Section
1798.79.8 of the Civil Code, for use in an action pending in another
state, territory, or district of the United States, or in a foreign
nation, and that subpoena has been served on any Internet service
provider, or on the provider of any other interactive computer
service, as defined in Section 230(f)(2) of Title 47 of the United
States Code, if the moving party prevails, and if the underlying
action arises from the moving party's exercise of free speech rights
on the Internet and the respondent has failed to make a prima facie
showing of a cause of action, the court shall award the amount of the
reasonable expenses incurred in making the motion, including
reasonable attorney's fees.
1987.3. When a subpoena duces tecum is served upon a custodian of
records or other qualified witness as provided in Article 4
(commencing with Section 1560) of Chapter 2 of Division 11 of the
Evidence Code, and his personal attendance is not required by the
terms of the subpoena, Section 1989 shall not apply.
1987.5. The service of a subpoena duces tecum is invalid unless at
the time of such service a copy of the affidavit upon which the
subpoena is based is served on the person served with the subpoena.
In the case of a subpoena duces tecum which requires appearance and
the production of matters and things at the taking of a deposition,
the subpoena shall not be valid unless a copy of the affidavit upon
which the subpoena is based and the designation of the materials to
be produced, as set forth in the subpoena, is attached to the notice
of taking the deposition served upon each party or its attorney as
provided in Chapter 3 (commencing with Section 2002) and in Title 4
(commencing with Section 2016.010). If matters and things are
produced pursuant to a subpoena duces tecum in violation of this
section, any other party to the action may file a motion for, and the
court may grant, an order providing appropriate relief, including,
but not limited to, exclusion of the evidence affected by the
violation, a retaking of the deposition notwithstanding any other
limitation on discovery proceedings, or a continuance. The party
causing the subpoena to be served shall retain the original affidavit
until final judgment in the action, and shall file the affidavit
with the court only upon reasonable request by any party or witness
affected thereby. This section does not apply to deposition subpoenas
commanding only the production of business records for copying under
Article 4 (commencing with Section 2020.410) of Chapter 6 of Title
4.
1988. If a witness is concealed in a building or vessel, so as to
prevent the service of subpoena upon him, any Court or Judge, or any
officer issuing the subpoena, may, upon proof by affidavit of the
concealment, and of the materiality of the witness, make an order
that the Sheriff of the county serve the subpoena; and the Sheriff
must serve it accordingly, and for that purpose may break into the
building or vessel where the witness is concealed.
1989. A witness, including a witness specified in subdivision (b)
of Section 1987, is not obliged to attend as a witness before any
court, judge, justice or any other officer, unless the witness is a
resident within the state at the time of service.
1990. A person present in Court, or before a judicial officer, may
be required to testify in the same manner as if he were in attendance
upon a subpoena issued by such Court or officer.
1991. Disobedience to a subpoena, or a refusal to be sworn, or to
answer as a witness, or to subscribe an affidavit or deposition when
required, may be punished as a contempt by the court issuing the
subpoena.
When the subpoena, in any such case, requires the attendance of
the witness before an officer or commissioner out of court, it is the
duty of the officer or commissioner to report any disobedience or
refusal to be sworn or to answer a question or to subscribe an
affidavit or deposition when required, to the court issuing the
subpoena. The witness shall not be punished for any refusal to be
sworn or to answer a question or to subscribe an affidavit or
deposition, unless, after a hearing upon notice, the court orders the
witness to be sworn, or to so answer or subscribe and then only for
disobedience to the order.
Any judge, justice, or other officer mentioned in subdivision (c)
of Section 1986, may report any disobedience or refusal to be sworn
or to answer a question or to subscribe an affidavit or deposition
when required to the superior court of the county in which attendance
was required; and the court thereupon has power, upon notice, to
order the witness to perform the omitted act, and any refusal or
neglect to comply with the order may be punished as a contempt of
court.
In lieu of the reporting of the refusal as hereinabove provided,
the party seeking to obtain the deposition or to have the deposition
or affidavit signed, at the time of the refusal may request the
officer or commissioner to notify the witness that at a time stated,
not less than five days nor more than 20 days from the date of the
refusal, he or she will report the refusal of the witness to the
court and that the party will, at that time, or as soon thereafter as
he or she may be heard, apply to the court for an order directing
the witness to be sworn, or to answer as a witness, or subscribe the
deposition or affidavit, as the case may be, and that the witness is
required to attend that session of the court.
The officer or commissioner shall enter in the record of the
proceedings an exact transcription of the request made of him or her
that he or she notify the witness that the party will apply for an
order directing the witness to be sworn or to answer as a witness or
subscribe the deposition or affidavit, and of his or her notice to
the witness, and the transcription shall be attached to his or her
report to the court of the refusal of the witness. The report shall
be filed by the officer with the clerk of the court issuing the
subpoena, and the witness shall attend that session of the court, and
for failure or refusal to do so may be punished for contempt.
At the time so specified by the officer, or at a subsequent time
to which the court may have continued the matter, if the officer has
theretofore filed a report showing the refusal of the witness, the
court shall hear the matter, and without further notice to the
witness, may order the witness to be sworn or to answer as a witness
or subscribe the deposition or affidavit, as the case may be, and may
in the order specify the time and place at which compliance shall be
made or to which the taking of the deposition is continued.
Thereafter if the witness refuses to comply with the order he or she
may be punished for contempt.
1991.1. Disobedience to a subpoena requiring attendance of a
witness before an officer out of court in a deposition taken pursuant
to Title 4 (commencing with Section 2016.010), or refusal to be
sworn as a witness at that deposition, may be punished as contempt,
as provided in subdivision (e) of Section 2023.030, without the
necessity of a prior order of court directing compliance by the
witness.
1991.2. The provisions of Section 1991 do not apply to any act or
omission occurring in a deposition taken pursuant to Title 4
(commencing with Section 2016.010). The provisions of Chapter 7
(commencing with Section 2023.010) of Title 4 are exclusively
applicable.
1992. A person failing to appear pursuant to a subpoena or a court
order also forfeits to the party aggrieved the sum of five hundred
dollars ($500), and all damages that he or she may sustain by the
failure of the person to appear pursuant to the subpoena or court
order, which forfeiture and damages may be recovered in a civil
action.
1993. (a) (1) As an alternative to issuing a warrant for contempt
pursuant to paragraph (5) or (9) of subdivision (a) of Section 1209,
the court may issue a warrant for the arrest of a witness who failed
to appear pursuant to a subpoena or a person who failed to appear
pursuant to a court order. The court, upon proof of the service of
the subpoena or order, may issue a warrant to the sheriff of the
county in which the witness or person may be located and the sheriff
shall, upon payment of fees as provided in Section 26744.5 of the
Government Code, arrest the witness or person and bring him or her
before the court.
(2) Before issuing a warrant for a failure to appear pursuant to a
subpoena pursuant to this section, the court shall issue a "failure
to appear" notice informing the person subject to the subpoena that a
failure to appear in response to the notice may result in the
issuance of a warrant. This notice requirement may be omitted only
upon a showing that the appearance of the person subject to the
subpoena is material to the case and that urgency dictates the person'
s immediate appearance.
(b) The warrant shall contain all of the following:
(1) The title and case number of the action.
(2) The name and physical description of the person to be
arrested.
(3) The last known address of the person to be arrested.
(4) The date of issuance and county in which it is issued.
(5) The signature or name of the judicial officer issuing the
warrant, the title of his or her office, and the name of the court.
(6) A command to arrest the person for failing to appear pursuant
to the subpoena or court order, and specifying the date of service of
the subpoena or court order.
(7) A command to bring the person to be arrested before the
issuing court, or the nearest court if in session, for the setting of
bail in the amount of the warrant or to release on the person's own
recognizance. Any person so arrested shall be released from custody
if he or she cannot be brought before the court within 12 hours of
arrest, and the person shall not be arrested if the court will not be
in session during the 12-hour period following the arrest.
(8) A statement indicating the expiration date of the warrant as
determined by the court.
(9) The amount of bail.
(10) An endorsement for nighttime service if good cause is shown,
as provided in Section 840 of the Penal Code.
(11) A statement indicating whether the person may be released
upon a promise to appear, as provided by Section 1993.1. The court
shall permit release upon a promise to appear, unless it makes a
written finding that the urgency and materiality of the person's
appearance in court precludes use of the promise to appear process.
(12) The date and time to appear in court if arrested and released
pursuant to paragraph (11).
1993.1. (a) If authorized by the court as provided by paragraph
(11) of subdivision (b) of Section 1993, the sheriff may release the
person arrested upon his or her promise to appear as provided in this
section.
(b) The sheriff shall prepare in duplicate a written notice to
appear in court, containing the title of the case, case number, name
and address of the person, the offense charged, and the time when,
and place where, the person shall appear in court. In addition, the
notice shall advise the person arrested of the provisions of Section
1992.
(c) The date and time specified in the notice to appear in court
shall be that determined by the issuing court pursuant to paragraph
(12) of subdivision (b) of Section 1993.
(d) The sheriff shall deliver one copy of the notice to appear to
the arrested person, and the arrested person, in order to secure
release, shall give his or her written promise to appear in court as
specified in the notice by signing the duplicate notice, which shall
be retained by the sheriff, and the sheriff may require the arrested
person, if he or she has no satisfactory identification, to place a
right thumbprint, or a left thumbprint or fingerprint if the person
has a missing or disfigured right thumb, on the notice to appear.
Except for law enforcement purposes relating to the identity of the
arrestee, no person or entity may sell, give away, allow the
distribution of, include in a database, or create a database with,
this print. Upon the signing of the duplicate notice, the arresting
officer shall immediately release the person arrested from custody.
(e) The sheriff shall, as soon as practicable, file the original
notice with the issuing court. The notice may be electronically
transmitted to the court.
(f) The person arrested shall be released unless one of the
following is a reason for nonrelease, in which case the arresting
officer either may release the person or shall indicate, on a form to
be established by his or her employing law enforcement agency, which
of the following was a reason for the nonrelease:
(1) The person arrested was so intoxicated that he or she could
have been a danger to himself or herself or to others.
(2) The person arrested required medical examination or medical
care or was otherwise unable to care for his or her own safety.
(3) There were one or more additional outstanding arrest warrants
for the person.
(4) The person arrested demanded to be taken before a magistrate
or refused to sign the notice to appear.
1993.2. If a person arrested on a civil bench warrant issued
pursuant to Section 1993 fails to appear after being released on a
promise to appear, the court may issue another warrant to bring the
person before the court or assess a civil assessment in the amount of
not more than one thousand dollars ($1,000), which shall be
collected as follows:
(a) The assessment shall not become effective until at least 10
calendar days after the court mails a warning notice to the person by
first-class mail to the address shown on the promise to appear or to
the person's last known address. If the person appears within the
time specified in the notice and shows good cause for the failure to
appear or for the failure to pay a fine, the court shall vacate the
assessment.
(b) The assessment imposed under subdivision (a) may be enforced
in the same manner as a money judgment in a limited civil case, and
shall be subject to the due process requirements governing defense of
actions and collection of civil money judgments generally.
1994. Every warrant of commitment, issued by a court or officer
pursuant to this chapter, shall specify therein, particularly, the
cause of the commitment, and if it be for refusing to answer a
question, that question shall be stated in the warrant.
1995. If the witness be a prisoner, confined in a jail within this
state, an order for his examination in the jail upon deposition, or
for his temporary removal and production before a court or officer
may be made as follows:
1. By the court itself in which the action or special proceeding
is pending, unless it be a small claims court.
2. By a justice of the Supreme Court, or a judge of the superior
court of the county where the action or proceeding is pending, if
pending before a small claims court, or before a judge or other
person out of court.
1996. Such order can only be made on the motion of a party, upon
affidavit showing the nature of the action or proceeding, the
testimony expected from the witness, and its materiality.
1997. If the witness be imprisoned in a jail in the county where
the action or proceeding is pending, his production may be required.
In all other cases his examination, when allowed, must be taken upon
deposition.