Judge: Randy Rhodes, Case: 21CHCV00787, Date: 2023-02-07 Tentative Ruling

Case Number: 21CHCV00787    Hearing Date: February 7, 2023    Dept: F51

Dept. F-51
Date: 2/7/23

Case #21CHCV00787

MOTION TO COMPEL DISCOVERY

(Deposition Subpoena for Business Records from Nonparty ARA Remodeling & Construction Company)

Motion filed: 12/13/22 

MOVING PARTY: Defendant California Automobile Insurance Company (“CAIC”) 

RESPONDING PARTY: Nonparty ARA Remodeling & Construction Company (“ARA”)

NOTICE: OK 

RELIEF REQUESTED: An order compelling ARA to respond to the Deposition Subpoena for Production of Business Records served by CAIC on 9/12/22.

TENTATIVE RULING: The motion is denied.

BACKGROUND

This is an action brought by Plaintiffs, homeowners, against various insurance Defendants to recover insurance funds related to the damage to Plaintiffs’ home resulting from the Saddlebridge Fire in October 2019. Plaintiffs allege that Defendants “denied coverage, and/or paid for only some or part of the claims, and/or have delayed payment of claims, unreasonably and/or without proper cause.” (Compl. ¶ 21.)

On 10/7/21, Plaintiff filed its complaint against CAIC, Mercury Casualty Company, Mercury Insurance Company, Mercury Insurance Services, LLC, and Mercury General Corporation, alleging the following causes of action: (1) Breach of Contract; and (2) Breach of Implied Covenant of Good Faith and Fair Dealing (Bad Faith Insurance).

CAIC alleges that nonparty ARA is the contractor currently responsible for performing repairs to Plaintiffs’ property. (CAIC’s Mot., 3:17–19.) On 9/12/22, CAIC served a deposition subpoena for production of business records on ARA. No response has been served by ARA.

On 12/13/22, CAIC filed the instant motion to compel ARA’s response to the document subpoena. No opposition has been filed to date.

ANALYSIS

CAIC brings the instant motion to compel nonparty ARA to respond to the Deposition Subpoena for Production of Business Records served by CAIC on 9/12/22. If a deponent fails to produce any document specified in a deposition subpoena, the propounding party may seek an order compelling the production of such document(s) within 60 days of the completion of the deposition record. (Code Civ. Proc. § 2025.480, subds. (a)–(b).) The objections or other responses to a business records subpoena are the “deposition record” for purposes of measuring the 60-day period for a motion to compel. (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 132–133.)

Counsel for CAIC declares that despite numerous attempts to meet and confer with ARA and Plaintiff’s counsel regarding ARA’s lack of response to the document subpoena, no responses have been served to date. (Decl. of Lora Hemphill, ¶¶ 9–19.) Therefore, CAIC has satisfied the meet and confer requirements set forth under Code of Civil Procedure section 2025.480, subdivision (b).

ARA was required to produce documents responsive to CAIC’s deposition subpoena by 10/12/22. (Ex. A to Hemphill Decl.) Because no objections or responses were served by ARA, the 60-day deadline for CAIC to file a motion to compel was therefore 12/12/22. (Code Civ. Proc. § 2025.480, subd. (b).) CAIC filed the instant motion on 12/13/22, one day past the 60-day window. As the Unzipped Apparel Court held, in reversing the trial court’s granting of a motion compelling the production of subpoenaed business records from a nonparty, the 60-day deadline set forth by Code of Civil Procedure section 2025.480, subdivision (b) is mandatory. (156 Cal.App.4th at 136.) As such, the Court finds the instant motion is untimely brought.

Accordingly, the Court denies CAIC’s motion to compel ARA’s response to CAIC’s 9/12/22 Deposition Subpoena for Production of Business Records. The Court notes that CAIC may seek alternative relief such as contempt proceedings under Code of Civil Procedure section 2020.240.

CONCLUSION

The motion is denied.