2017-00210683-CU-PA

Nikolay Gorodetskiy vs. Sandra Sue Smith

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Caldwell, Craig A.

Defendants Sandra Sue Smith and Norman W. Smith’s unopposed motion to compel a non-party, Pizza House, Inc. to comply with a deposition subpoena for the production of business records is denied.

Section 1985.6(b) requires the subpoena for employment records be accompanied by either (1) a copy of the proof of service to the consumer as described in section 1985.6 (b), or (2) the consumer’s written authorization of release as described in 1985.6(c)(2). (Code Civ. Proc. § 2020.410(d).) Section 1985.6(b) and (e) require that notice to the employee must be served on the employee at least 10 days prior to the date of production and 5 days before the subpoena is served on the custodian of the employment records (with extension if service by mail). If the subpoenaing party fails to comply with notice and timing procedures, the non-party may refuse to produce the consumer records. (Id. § 1985.6(j).)

Code of Civil Procedure section 2020.410(c) requires that documents are to be produced no earlier than 20 days after issuance of the subpoena or 15 days after the service of the subpoena, whichever is later. Code of Civil Procedure section 2025.270

(c) provides, in part, that if “the party giving notice of the deposition is a subpoenaing party, and the deponent is a witness commanded by a deposition subpoena to produce personal records of a consumer or employment records of an employee, the deposition shall be scheduled for a date at least 20 days after the issuance of the subpoena.”

Here, a copy of the subpoena with the proof of service was attached as Exhibit A to the declaration of Craig A. Caldwell. The deposition subpoena is not signed by counsel, nor is the included notice to consumer or employee. While it is possible that a signed subpoena was in fact issued, the evidence presently before the Court does not support such a determination.

Further, the deposition subpoena is dated November 16, 2017. The notice to consumer or employee is dated November 17, 2017, and the proof of service to the consumer indicates it was served by mail on November 17, 2017. The proof of service of the deposition subpoena with the included notice to consumer indicates it was personally served on Pizza House on December 4, 2017. Therefore, the deposition subpoena complied with section 1985.6 in providing sufficient advance notice to the consumer, but did not comply with sections 2020.410(c) or 2025.270(c) because the production date was not “no earlier” than 15 days after the service of the subpoena and not at least 20 days after the issuance of the subpoena. Defendants’ motion is denied.

Defendants’ request for sanctions in the amount of $696 is denied.

Additionally, the Court notes the proof of service of the deposition subpoena indicated the subpoena was served on December 4, 2017, but was not signed until February 21, 2018.