Judge: Theodore R. Howard, Case: 20-1169357, Date: 2022-09-22 Tentative Ruling

Before the Court are two motions to compel compliance with deposition subpoenas for personal appearance and production of documents and things filed by Defendant, Maryam Parman, as trustee of the Maryam Parman Revocable Trust dated January 19, 2009 (“Parman”). The first motion (ROA 722) seeks non-party Tom Brockington’s compliance. The second motion (ROA 726) seeks non-party Mark Frazier’s compliance. For the reasons discussed below, the motions are DENIED.

Code of Civil Procedure section 2025.480 governs motions to compel answers and production of documents at deposition, and provides that such motion “shall be made no later than 60 days after the completion of the record of the deposition[.]” (C.C.P. §2025.480(b).) (Emphasis added.)

If a nonparty disobeys a deposition subpoena, the subpoenaing party may seek a court order compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. (Weil & Brown, Cal. Practice Guide:  Civ. Proc. Before Trial §8:609.1, citing C.C.P. §2025.480(b); Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.) This rule applies to subpoenas for production of documents at a deposition and also to business records subpoenas. The objections or other responses to a business records subpoena are the ‘deposition record’ for the purposes of measuring the 60-day period for a motion to compel. (Id., citing Unzipped Apparel, LLC v. Bader, supra, 156 Cal.App.4th at 132-133; Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192.) In addition, with respect to the production of documents, the 60-day time limit runs from the date objections were served because the deposition record is then completed. (Rutledge v. Hewlett-Packard Company, supra, 238 Cal.App.4th at 1192.)

The 60-day deadline is mandatory and jurisdictional. (Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 321.) “A nonparty must comply (or not) with the subpoena on the date specified for production. If a party is not satisfied with the nonparty's compliance, the party has 60 days in which to meet and confer with the nonparty. These meet and confer efforts do not affect the mandatory 60-day deadline. The meet and confer process is part of the 60-day period in which to file a motion; it does not extend it.” (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1034.) (Emphasis added.)

Here, the date specified for production in the deposition subpoenas was December 7, 2021 for Frazier and December 8, 2021 for Brockington. (Ex. 1 to Klein Declarations.) Frazier and Brockington both served objections to the deposition subpoenas on December 3, 2021, that stated that both would produce the requested documents to the extent responsive documents were not subject to the attorney-client privilege belonging to CRA. (Ex. 3 to Klein Declarations.) On December 6, 2021, counsel for Frazier and Brockington confirmed to Parman’s counsel in an email that Frazier and Brockington were withholding approximately 35 documents that CRA had objected to as protected by attorney-client privilege. (Ex. 5 to Klein Declarations.) The depositions of Frazier and Brockington went forward on December 7, 2021 and December 8, 2021, respectively

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The deposition record was thus complete, and the 60-day deadline began to run, at the latest on December 7, 2021 as to Frazier and December 8, 2021 as to Brockington – the date specified for compliance in the subpoenas. These motions filed on April 21, 2022, were filed well outside the 60-day deadline.

Parman’s argument that the 60-day deadline did not commence until CRA served its supplemental privilege log in March 2022 lacks merit. Parman was aware as of December 6, 2021, that Frazier and Brockington intended to withhold documents that CRA asserted were privileged. Thus, Parman had 60 days to meet and confer with the non-parties and with CRA regarding the production. These meet and confer efforts were part of the 60-day period in which to file a motion; they did not extend it. (Board of Registered Nursing v. Superior Court of Orange County, supra, 59 Cal.App.5th at 1034.) The fact that CRA did not submit a privilege log until February and March 2022 does not affect the mandatory 60-day deadline. It was incumbent upon Parman to follow up with meet and confer efforts and ensure its motions were filed within the 60-day period.

Accordingly, the motions are untimely, and the Court thus DENIES the motions. (Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 321.)

Counsel for Plaintiff to give notice.