Judge: Mark A. Young, Case: 19SMCV01614, Date: 2023-08-29 Tentative Ruling

Case Number: 19SMCV01614    Hearing Date: April 5, 2024    Dept: M

CASE NAME:           Singer v. Related Cal. Urban Housing, et al.

CASE NO.:                19SMCV01614

MOTION:                  Motion to Compel Further Responses to SDT served on Non-Party Deponent Related Management Company, LP

HEARING DATE:   4/5/2024

Legal Standard

            Personal service of a deposition subpoena obligates the production of whatever documents or things are specified in the subpoena and to appear in any proceedings to enforce discovery. (CCP § 2020.220(c). If a nonparty disobeys a deposition subpoena, the subpoenaing party may seek a court order pursuant to CCP section 1987.1 compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. (CCP § 2025.480(b); see also UnzippedApparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.)

The motion must be accompanied by a meet and confer declaration. (CCP § 2025.480(b).) There is no “good cause” requirement when seeking to compel documents from a nonparty. (CCP § 2020.410(c).)

Analysis

Plaintiff Singer moves to compel a further response and production by nonparty deponent Related Management Company, L.P. Specifically, Singer seeks responses to the subpoena for business records served on November 17, 2023, which requested that Related Management produce six categories of documents:

1) a copy of its limited partnership agreement;

2) a copy of its contract with The Waverly’s governing association;

3) all documents mentioning or related to the curtain wall and window systems at The Waverly;

4) all documents mentioning or related to problems with the curtain wall and window systems at The Waverly;

5) all documents mentioning or related to water intrusion through and around the curtain wall and window systems at The Waverly; and

6) all communications and electronic-mail sent or received by Related Management concerning problems with and/or water intrusion through the curtain wall and window systems at The Waverly. (Wolff Decl., ¶ 3, Ex. B.)

Plaintiff contends that Related Management’s response and production was insufficient. Related Management served an unverified response to the subpoena on January 5, 2024. Production consisted solely of: 1) its limited partnership agreement and management contract with The Waverly Owners Association, in compliance with the first two categories of subpoenaed documents, and 2) thirty one work orders dating from February 2017 through March 2023 in response to the third through fifth categories. As to the sixth category of documents, Related Management’s counsel represented that no such documents exist. (Id., ¶ 5, Ex. D.)

Related Management’s response is insufficient pursuant to Code of Civil Procedure section 2020.430 and Evidence Code sections 1560-1563. “[I]f a deposition subpoena commands only the production of business records for copying, the custodian of the records or other qualified person shall… deliver both of the following only to the deposition officer specified in the subpoena: (1) A true, legible, and durable copy of the records [; and] (2) An affidavit in compliance with Section 1561 of the Evidence Code.” (CCP § 2020.430(a).) Evidence Code section 1561(a)-(b) provides that the production of records “shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:

(1) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.

(2) The copy is a true copy of all the records described in the subpoena duces tecum or search warrant, or pursuant to subdivision (e) of Section 1560, the records were delivered to the attorney, the attorney's representative, or deposition officer for copying at the custodian's or witness' place of business, as the case may be.

(3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.

(4) The identity of the records.

(5) A description of the mode of preparation of the records.

(b) If the business has none of the records described, or only part thereof, the custodian or other qualified witness shall so state in the affidavit, and deliver the affidavit and those records that are available in one of the manners provided in Section 1560.”

As noted, Related’s custodian of records did not provide the required affidavit as a part of their production on January 5, 2024. (Wolff Decl., ¶ 5, Ex. D.) Thus, a further response is required. Moreover, Plaintiff’s counsel notes that since 2014, Related Management communicated extensively with homeowners, board members, developer/affiliate representatives, and vendors about the water intrusion issues, and that responsive documents must therefore exist. (Id., ¶ 6, Ex. A, at pp. 9-10.) Plaintiff demonstrates that Singer herself has sent responsive emails to Related, necessarily showing the document production was incomplete. During meet and confer efforts, Related Management represented that they may have destroyed responsive communications because of a “one year retention policy,” but there is no evidentiary support for this position.

Accordingly, the motion is GRANTED.

Further responses are ordered within 10 days.