I. BACKGROUND & PROCEDURAL HISTORY 

Defendant David Escalante Melquisedec (“Defendant”) moves to compel T-Mobile’s compliance with a subpoena for Plaintiff’s Chanice Ward’s (“Plaintiff Ward”) phone records. Defendant argues the records are material to determine Plaintiff Ward’s communications and location at the time of the incident in order to corroborate Defendant’s contention that she was not present inside the vehicle and was called to the scene by plaintiff Tambora Ward after the loss occurred. 

The motion was initially denied in Department 30 of Street Courthouse due to the issue of service pursuant to California Rules of Court, rule 3.1346. (Min. Order, April 22, 2024.) Defendant has since cured this defect. (Proof of Service, May 16, 2024.)  

II. 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.) 

Here, Defendant’s motion to compel compliance is denied for two reasons. First, service of the deposition subpoena was made to T-Mobile in New Jersey. It is unclear to this Court whether it has jurisdiction to compel an out-of-state non-party’s compliance with a California specific subpoena. (See Uniformed Interstate Deposition and Discovery Act (UIDDA); CCP §§ 2026.010 – 2029.900.)  

Second, even if this Court did have jurisdiction over an out-of-state non-party, there is the issue of timeliness of the motion. Defendant served the deposition subpoena for production of business records to T-Mobile on November 1, 2023, with the production deadline of December 1, 2023. “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. The production date was December 1, 2023, and the original motion was filed 70 days later on February 9, 2024. At that point, the motion was already untimely. “The 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.)  

Accordingly, Defendant’s motion to compel compliance with deposition subpoena for production of business records is DENIED.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: