Judge: Thomas Falls, Case: 21PSCV00737, Date: 2022-07-28 Tentative Ruling

Case Number: 21PSCV00737    Hearing Date: July 28, 2022    Dept: R

A & N Industrial Properties, LLC v. VRD, Inc., et al. (21PSCV00737)

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Plaintiff, A & N Industrial Properties, LLC’s Motion to Compel Production in Response to Plaintiff’s Deposition Subpoena for Production of Business Records and To Hold Subpoenaed Non-Party, Masajji Konishi, in Contempt (“Motion”)

Tentative Ruling

Plaintiff, A & N Industrial Properties, LLC’s Motion to Compel Production in Response to Plaintiff’s Deposition Subpoena for Production of Business Records and To Hold Subpoenaed Non-Party, Masajji Konishi, in Contempt is DENIED.

Background

This is a breach of contract case. Plaintiff A&N (“Plaintiff”) alleges the following against Defendants VRD, Inc. (“VRD”), Ren Yoneyama (“Yoneyama”), and Marco Perez (“Perez”) (collectively, “Defendants”): On November 29, 2017, the parties entered into a written lease agreement wherein Defendants would lease the premises for a three (3) year period, with base rent in the amount of $16,071.00 per month and terminating on November 30, 2020. The lease was signed by Defendant VRD, and the obligations under the Lease were guaranteed by Defendants Yoneyama and Perez. On July 1, 2018, VRD failed to pay rent, failed to pay their share of the common area operating expenses, and abandoned the premises before the expiration of the lease, requiring Plaintiff to repair the Premises and suffer damages for the repairs. Plaintiff has incurred damages in the amount of approximately $74,428.25.

On August 7, 2021, Plaintiff filed suit against Defendants and Doe Defendants for:

1.      Common Counts

2.      Breach of Contract

3.      Breach of Guaranty

4.      Unjust Enrichment

On August 7, 2021, Plaintiff filed its First Amended Complaint (“FAC”).

On November 16, 2021, Defendants filed their Answer.

On June 27, 2021, Plaintiff filed the instant Motion.

To date, as of Wednesday, July 20, 2022, no Opposition has been received (due nine court days before the hearing on Friday, July 15, 2022).

Legal Standard

Plaintiff requests the court to order non-party Masaji Konishi, aka Ronnie Konishi (“Konishi”)

to produce documents pursuant to CCP § 2025.480. 

To require the production of any document or tangible thing for inspection and copying of a non-party deponent, the party seeking discovery must serve on that deponent a deposition subpoena, pursuant.[1]  (CCP §§ 2020.010(b), 2025.280(b); see also Sears, Roebuck & Co. v. National Union Fire Insurance Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by Code of Civil Procedure section 2020.010, et seq., and is primarily carried out by way of subpoena].  While penalties for disobedience of a subpoena are generally governed by CCP §§ 1991–1994, in the case of subpoenas in the context of discovery, the provisions governing subpoenas are modified by the more specific provisions of CCP §§ 2016.010, et seq.  (See CCP §§ 2020.010, et seq.) 

Under CCP § 2020.240, a deponent who disobeys a deposition subpoena in any manner may be punished for contempt, without the necessity of a prior order of the court directing compliance by the witness and is also subject to a monetary penalty of $500.00, as well as the payment of damages to the party aggrieved by his disobedience.  (CCP § 2020.240; see also CCP § 1992.) 

If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (CCP § 2025.480(a).)  This motion must be made no later than sixty (60) days after completion of the deposition record. (CCP § 2025.480(b).)  The 60-day period is mandatory.  (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 136.)   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, supra, 156 Cal.App.4th at pp. 132-133; see also Board of Registered Nursing v. Superior Ct. (2021) 59 Cal.App.4th 1011, 1032-1033 [The deposition record is “complete” as of the “date specified for production” or the date objections are served. It is irrelevant that some documents might be produced thereafter.]

Here, Plaintiff served the Deposition Subpoena for Production of Business Records to Konishi on February 2, 2022. The deadline for Mr. Konishi to produce the documents requested in the Subpoena to the deposition officer was March 4, 2022, at 10:00 a.m. Konishi did not produce the documents. To date, even after efforts to obtain the documents, Konishi has not produced the documents. As such, as production was due on March 4, 2022 but no objections were received, then the deposition record was completed on March 4, 2022.

Therefore, as Plaintiff must have brought the instant motion by May 4, 2022 but rather filed it on June 27, 2022, the motion is untimely by over one-month.

Conclusion

Based on the foregoing, the Motion is DENIED because it was filed and served more than 60 days after the completion of the deposition record.