Case Number: BC475350 Hearing Date: March 02, 2018 Dept: 47

Robert Baral v. David Schnitt

MOTION TO COMPEL PRODUCTION OF DOCUMENTS IN RESPONSE TO SUBPOENA

MOVING PARTY: Plaintiff Robert Baral

RESPONDING PARTY(S): Defendant David Schnitt

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant sold Plaintiff’s interest in a company, IQ, which they co-owned without Plaintiff’s authorization, although Defendant retained an interest in the company.

Plaintiff Robert Baral moves to compel production of documents in response to the subpoena issued to IQ Backoffice, Inc. and requests sanctions.

TENTATIVE RULING:

Plaintiff Robert Baral’s motion to compel production of documents pursuant to subpoena is DENIED as untimely.

However, Defendant’s counter-request for sanctions—which was requested against Plaintiff Baral only—is DENIED. It appears that Plaintiff’s counsel was responsible for bringing this untimely motion, not Plaintiff Baral himself as client.

DISCUSSION:

Motion To Compel Production of Documents Pursuant To Subpoena

CCP § 2025.480, which provides:

(a) If a deponent fails to answer any question or 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 answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.

(Bold emphasis added.)

CCP § 2025.480 does not require that the party moving to compel production show good cause for production of the documents requested. [Note: CCP § 2025.480(f) contains a good cause requirement only where such information is “electronically stored information from a source that is not reasonably accessible.”]

Plaintiff Robert Baral moves to compel production of documents in response to the subpoena issued to IQ Backoffice, Inc. as to Requests For Production Nos. 21 – 23. However, as Defendant argues, the motion to compel is untimely as to these requests for production. Third party IQ BackOffice, Inc. served its objections to the deposition subpoena on May 26, 2017. Motion, Exh. B. As to requests for production Nos. 21 – 23, only objections were served, with no indication that responsive documents would be produced. By way of letter dated June 19, 2017, Defendant’s counsel clearly stated that the objections to Requests Nos. 22 – 25 were valid and no documents would be produced that identify or provide information on IQB Ltd.’s clients. Motion, Exh. E. Thus, no later than June 19, 2017[1], the “record of the deposition” was complete as to Requests Nos. 21 – 23. Plaintiff was required to file a motion to compel production as to Requests Nos. 21 – 13 by August 18, 2017. The instant motion was not filed and served until December 26, 2017. The fact that Defendant was producing documents responsive to other document requests does not extend the deadline to compel as to Requests Nos. 21 – 23, because Plaintiff had been served with objections to those requests and Defendant’s definitive position that no responsive documents would be produced, and there is no indication that Plaintiff was granted access to make copies of IQ Backoffice, Inc.’s documents at IQ Backoffice’s premises over a period of several days, which is the situation contemplated by Unzipped Apparel, infra.

Appellants assert the court erred in ordering the sanctions, because the 2011 motion was not untimely. Appellants cite Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123 [67 Cal. Rptr. 3d 111] (Unzipped) in arguing that because Bizcom agreed to produce documents in the deposition, they “can rest assured that the 60-day period [during which it must bring a motion to compel] does not begin to run until the production is over.” Appellants argue that Bizcom’s production of documents from the July 2004 deposition was not complete at the time of the motion, and as a result, the 60-day period for filing a motion to compel had not run, and their 2011 motion was timely.

In Unzipped, the court specifically noted that for a business record subpoena, such as the subpoena of Bizcom at issue here, the 60-day period during which a motion to compel must be filed, begins to run when the deponent serves objections on the party. At the time the objections are served, the record of deposition is complete. (Unzipped, supra, 156 Cal.App.4th at p. 136.) In reference to the 60-day period, the Unzipped court noted that “[t]he deadline was mandatory.” (Ibid.)

Based on our review of the record, appellants’ February 2011 motion to compel was untimely. Appellants continued to seek documents requested in their 2004 subpoena of Bizcom for seven years. If appellants were not satisfied with Bizcom’s production of documents from its initial request, the time to file a motion to compel was within 60 days of August 27, 2004, the date on which Bizcom served its objections to the 2004 subpoena.

The court did not err in finding appellants’ motion untimely under Code of Civil Procedure section 2025.480, subdivision (b), and in ordering the monetary sanction under Code of Civil Procedure section 2025.480, subdivision (j). The court did not abuse its discretion in concluding that appellants did not act with substantial justification in bringing the untimely motion. Contrary to appellants’ assertion, there is no due process violation in the sanctions order in this case. Appellants were on notice under Code of Civil Procedure section 2025.480, subdivision (j) of a mandatory sanction for unsuccessfully making a motion to compel.

Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192 (bold emphasis and underlining added).

Further, “the record,” as compared to “transcript,” is broader in scope, meaning a documentary account of some act or event designed to memorialize what was done. (See Black’s Law Dict. (8th ed. 2004) p. 1301, col. 1; Webster’s 3d New Internat. Dict. (2002 ed.) p. 1898, col. 1.) A business records subpoena often results in one of two responses: a partial production based on a few objections or no production based on more extensive objections. Under either scenario, upon receipt of the response, the subpoenaing party has all of the information it needs to prepare a motion [to compel. We therefore conclude that neither the number of objections nor the proportion of records produced should be used in defining “the record” for purposes of determining when to bring a motion to compel.

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[*134]

Nor is the 60-day period rendered inapplicable to business records subpoenas merely because section 2025.480 refers to the “completion” of the record of the deposition. (See § 2025.480, subd. (b).) Not all document productions are completed on the date stated in the subpoena. If the subpoenaing party opts to inspect and copy the original documents at the office of the responding business, “the record” of the production could take days to complete. This may occur in part because the subpoenaing party’s access to the documents is limited by statute to either the business’s normal hours—the time when the business is normally open to the public—or six hours a day, whichever is greater. (See § 2020.430, subd. (c)(1); Evid. Code, § 1560, subd. (e).) Until the entire inspection is finished, including the raising of any objections during that process, the necessity and scope of a motion to compel may not be known. Consequently, if on the first day of an inspection, a party is escorted to a warehouse full of documents, the party can rest assured that the 60-day period will not begin to run until the production is over.

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[*135]

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[*136]

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In sum, the objections served in response to Unzipped’s business records subpoenas constituted a record of a deposition. The record was complete as of the date set for the production, December 7, 2005, when Unzipped received the objections. Unzipped had 60 days thereafter, until February 6, 2006, to file a motion to compel. It waited until March 1, 2006, which rendered the motion untimely. The deadline was mandatory. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1408–1410 [68 Cal. Rptr. 2d 708].) The order granting the motion must therefore be reversed.

Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 132-36 (bold emphasis and underlining added).

Accordingly, the motion to compel production of documents pursuant to subpoena is DENIED as untimely.

However, Defendant’s counter-request for sanctions—which was requested against Plaintiff Baral only—is DENIED. It appears that Plaintiff’s counsel was responsible for bringing this untimely motion, not Plaintiff Baral himself as client. CCP § 2023.040 provides: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, . . .”

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 2, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court