Judge: Christopher K. Lui, Case: 20STCV33128, Date: 2023-05-05 Tentative Ruling

Case Number: 20STCV33128    Hearing Date: May 5, 2023    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

            Plaintiff alleges that Defendant Tyler D’Shaun Martin-Brand, as an employee of Defendant LAUSD during an after school program, physically abused and murdered decedent Dayvon Taylor.

Plaintiff moves to compel further compliance with business records subpoena served upon nonparty Downey Police Department.

TENTATIVE RULING

Plaintiff Kenya Taylor’s motion to compel further compliance with the deposition subpoena is DENIED as untimely.

Motion To Compel Subpoena

Plaintiff moves to compel further compliance with business records subpoena served upon nonparty Downey Police Department (“Downey P.D.).

The first issue is whether Plaintiff was required to comply with Civ. Proc. Code, § 1985.3, which requires notice so the individuals whose personal records are being sought. However, Downey P.D. does not explain how Plaintiff is to identify individuals whose identities are not yet known to be included in the police records. Police records do not come within the definition of “personal records” as set forth in Civ. Proc. Code, § 1985.3(a)(1), because a police department is not a “witness” for purposes of that subsection. 

(a) For purposes of this section, the following definitions apply:

(1) “Personal records” means the original, any copy of books, documents, other writings, or electronically stored information 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.

     (Civ. Proc. Code § 1985.3(a)(1)[bold emphasis added].)

In this regard, witnesses would not come within the definition of “consumer” as defined in § 1985.3(a)(2), as follows:

 “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.

(Civ. Proc. Code § 1985.3.)

As such, Downey P.D.’s argument that this motion was required to be brought within 20 days of the service of the written objection is not persuasive, as § 1985.3 applies where a consumer’s personal records are sought:

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.

     (Civ. Proc. Code § 1985.3.)

Accordingly, the 60-day deadline set forth in Civ. Proc. Code, § 2025.480(b) applies, as argued by Plaintiff.

Civ. Proc. Code, § 2025.480 provides in pertinent part:

(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.

(Code of Civ. Proc., § 2025.480(a) & (b).)

Plaintiff served the deposition subpoena on November 16, 2022, and Downey PD objected to Plaintiff’s subpoena on December 5, 2022. (Motion, Page 6:1-3.) On February 7, 2023, Downey PD served Amended and Supplemental Response to Subpoena for Business  Records on Plaintiff in response to the subpoena. However, the 60-day deadline begins to run when the objections are first served[1], which would be February 3, 2023 based upon the December 5, 2022 objections. This motion was not served and filed until March 17, 2023, which is after the expiration of the 60-day deadline, measured from the service of objections.

Here, the Medical Board and Pharmacy Board responded to defendants' subpoenas by serving objections. The deposition was therefore complete when these objections were served, and the 60-day period to file a motion to compel began on that date. (Citations omitted.) Because defendants did not file their motions to compel until more than 60 days after the objections were served, their motions were untimely and should have been denied. (Citations omitted.)

(Bd. of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1032.)

In Unzipped, the court specifically noted that for a business record subpoena, such as the subpoena of Bizcom at issue here, the 60-day period during which a motion to compel must be filed, begins to run when the deponent serves objections on the party. At the time the objections are served, the record of deposition is complete. (Unzipped, supra, 156 Cal.App.4th at p. 136.) In reference to the 60-day period, the Unzipped court noted that “[t]he deadline was mandatory.” (Ibid.)

Based on our review of the record, appellants' February 2011 motion to compel was untimely. Appellants continued to seek documents requested in their 2004 subpoena of Bizcom for seven years. If appellants were not satisfied with Bizcom's production of documents from its initial request, the time to file a motion to compel was within 60 days of August 27, 2004, the date on which Bizcom served its objections to the 2004 subpoena.

The court did not err in finding appellants' motion untimely under Code of Civil Procedure section 2025.480, subdivision (b), and in ordering the monetary sanction under Code of Civil Procedure section 2025.480, subdivision (j). The court did not abuse its discretion in concluding that appellants did not act with substantial justification in bringing the untimely motion. Contrary to appellants' assertion, there is no due process violation in the sanctions order in this case. Appellants were on notice under Code of Civil Procedure section 2025.480, subdivision (j) of a mandatory sanction for unsuccessfully making a motion to compel.

(Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192 [bold emphasis added].)

As such, the motion to compel further compliance with the deposition subpoena is DENIED as untimely.