I. BACKGROUND 

Plaintiff Dominick Simons (“Plaintiff”) filed this action against defendant Manuel Pacheco (“Pacheco”) and Does 1 to 50 for damages arising from a motor vehicle incident. Plaintiff filed amendments to complaint naming Mario Ernesto Canales (“Canales”) as Doe 1 and Canales Transportation, LLC (“Canales Transportation”) as Doe 2. 

On February 20, 2024, Plaintiff filed the instant motion to compel the production of business records of non-party State Farm Mutual Automobile Insurance Company (“State Farm”) served on September 19, 2023. Pacheco opposes the motion, and Plaintiff filed a reply.  

Plaintiff asserts he properly served State Farm and Pacheco with the deposition subpoena for records on September 19, 2023, but that State Farm objected on November 7, 2023 on the grounds that the deposition subpoena was not properly served.  

Pacheco argues Plaintiff served three subpoenas to State Farm seeking records related to Canales Transportation, Canales, and Pacheco, yet Plaintiff’s motion does not specify which of the three subpoenas he seeks to compel production. Pacheco contends Plaintiff has failed to give proper notice as to which subpoena he seeks to enforce. Further, Pacheco avers the motion is untimely. 

Plaintiff provides that he is amenable to continuing the hearing to allow the parties and State Farm to further meet and confer, and that the continuance will resolve any issue of notice. Plaintiff clarifies that he is seeking to compel compliance of the deposition subpoena as it relates to Pacheco only, and that the motion is not untimely.  

II. TIMELINESS OF MOTION TO COMPEL COMPLIANCE 

“[D]iscovery from a nonparty may be obtained only by ‘deposition subpoena’ (§ 2020.010, subd. (b)).” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 130, italics removed.)  “Under the plain meaning rule, the Act contemplates that discovery conducted by way of a business records subpoena is a ‘deposition.’” (Id. at 131.) 

“Section 2025.480, subdivision (b) provides that any motion to compel further production regarding a deposition notice or subpoena ‘shall be made no later than 60 days after the completion of the record of the deposition ....’ A motion is ‘“made,”’ according to section 1005.5, ‘“upon the due service and filing of the notice of motion ....’” (Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 320; Code Civ. Proc., § 2025.480, subd. (a) [“If a deponent fails … 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 … production”].) 

Therefore, the 60-day deadline for filing and serving a motion to compel compliance with a deposition subpoena under Section 2025.480, subdivision (b), applies to the instant motion. In addition, “[t]he 60-day deadline is mandatory.” (Weinstein, supra, 25 Cal.App.5th at 320.) Therefore, “[w]here a party does not obtain trial court relief from the statutory deadline, “failure to move for further answers within the statutory time forecloses further relief ....” (Id. at p. 322, fn. 3.) 

Here, Plaintiff seeks to compel compliance with the third deposition subpoena served to State Farm related to Pachecho. (Opp. Exh. C.) The production date was October 18, 2023. (Ibid.) As Defendants aver, whether the 60-day period begins to run from the subpoena production date or from the date State Farm served objections on November 7, 2023, Plaintiff’s motion to compel filed on February 20, 2024 is untimely. Plaintiff’s misstatement of Rutledge v. Hewlett-Packard Co. (2015) 238 Cal. App. 4th 1164, 1191-1192 in terms of timeliness is not well-taken.  

Accordingly, Plaintiff’s motion to compel State Farm’s compliance with the business records subpoena is DENIED.   

Moving party is ordered to give notice.   

C61906 

PLEASE TAKE NOTICE: 

Dated this 15th day of March 2024