RECARDO GOMEZ v. LINC-PEPPERWOOD HOUSING INVESTORS, L.P., ET AL.

RECARDO GOMEZ

v.

LINC-PEPPERWOOD HOUSING INVESTORS, L.P., ET AL.

FACTUAL AND/OR PROCEDURAL BACKGROUND

The Complaint and Allegations

On January 8, 2025, Plaintiff Ricardo Gomez filed his Complaint against Defendants

Linc-Pepperwood Housing Investors, L.P. (Linc), Aperto Property Management, Inc. (Aperto),

Power House Security LLC dba Blackwater Security (Power), Arlon Benito Guillen, Lorenzo

Ortiz, and Raymond Joshua Bowman (collectively, Defendants) alleging five causes of action: 1)

assault (against Guillen, Ortiz, Bowman), 2) battery (against Guillen, Ortiz, Bowman), 3)

intentional infliction of emotional distress (IIED) (against Guillen, Ortiz, Bowman), 4)

negligence (against all), 5) premises liability (against Linc, Aperto, Power).

On January 9, 2024, Plaintiff was in his vehicle in the parking lot of 9025 Foothill Blvd.,

Rancho Cucamonga (premises) when Guillen, Ortiz, and Bowman approached him, brandished a

firearm, and physically assaulted Plaintiff in an attempt to steal his vehicle. Plaintiff was shot

and sustained injuries and damages. Plaintiff alleges that Linc, Aperto, and Power had a duty to

control Guillen, Ortiz, and Bowman and protect him from physical and mental harm.

Linc and Aperto answered and cross-complained against Roes 1-50 for eight claims: 1)

implied indemnity, 2) total equitable indemnity, 3) partial equitable indemnity, 4) express

indemnity, 5) contribution, 6) apportionment of fault, 7) declaratory relief, 8) breach of contract.

Linc and Aperto filed four amendments to cross-complaint identifying four Roe Defendants: Roe

1 is Power; Roe 2 is Guillen, Roe 3 is Ortiz; Roe 4 is Bowman.

Motion to Compel Compliance

Now before the court is Plaintiff’s motion to compel compliance with a deposition

subpoena for production of business records (subpoena) directed to non-party Rancho

Cucamonga Police Department (PD or Department), who opposes, and Plaintiff replies. Linc

and Aperto joined Plaintiff’s motion. The notice states that the PD objected to the subpoena,

stating “no records were submitted pursuant to Evidence Code section 1040.” (Notice, 2:16-19.)

Plaintiff’s motion was noticed originally for May 4, 2026; at that hearing, the court

(Judge Janet Frangie) told the parties it received subpoenaed documents from the Department

and intended to continue the matter to June 5, 2026, so that Plaintiff could pick up the documents

and release copies to all parties. At the continued hearing, the parties told the court (Judge

Gilbert Ochoa) that the PD is charging excess fees of $4,422.00 to receive body-cam footage.

(See Court’s 6/5/26 Minute Order.) The court ordered an additional motion to be filed to fully

brief this issue and continued the matter to July 8, 2026. (Ibid.)

After the 6/5/26 hearing, the Register of Actions (ROA) does not reflect that another

motion was filed with the court. Instead, on 6/18/26, Linc and Aperto filed a joinder to

Plaintiff’s further motion to compel compliance. Then on 6/22/26, Department opposed

Plaintiff’s motion and Plaintiff replied on 6/30/26. As such, the only motion before the court is

Plaintiff’s original compliance motion that was filed on 2/10/26 and noticed for 5/4/26.

DISCUSSION

Statement of Law Re Compelling Production per Deposition Subpoena

Plaintiff’s motion is made per Code of Civil Procedure section 2025.480, subdivision (b),

which merely sets forth the procedural requirements (the motion shall be made no later than 60

days after completion of the record of the deposition and shall be accompanied by a meet and

confer declaration).

Subdivision (a) provides that if a deponent fails to answer any question or to produce any

document, electronically stored information (ESI), or tangible thing under the deponent’s control

that is specified in the deposition subpoena, the party seeking discovery may move the court for

an order compelling that answer or production. (Code Civ. Proc., § 2025.480, subd. (a).)

If the court determines that the answer or production sought is subject to discovery, it

shall order that the answer be given or the production be made on the resumption of the

deposition. (Code Civ. Proc., § 2025.480, subd. (i).)

Timeliness

The statute anchors the 60-day clock to the completion of the “record,” not completion of

the “transcript” of a deposition. The deposition record is completed when written objections are

served in response to the deposition notice or subpoena. (In re Marriage of Moore (2024) 102

Cal.App.5th 1275, 1288 (Moore); Board of Registered Nursing v. Super. Ct. (2021) 59

Cal.App.5th 1011, 1031-1032 (Board of Registered Nursing); Unzipped Apparel, LLC v. Bader

(156 Cal.App.4th 123, 136 (Unzipped).) The record of a deposition subpoena for business

records is the documentary record memorializing the nonparty’s response to the subpoena.

(Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1032.) As such, the 60-day clock

starts at the time when written objections or a response is served in response to the deposition

notice or subpoena.

On December 15, 2025, Plaintiff served the subpoena upon the PD with production

noticed for January 20, 2026. (Morgan Decl., ¶3, Exh. 1.) On January 12, 2026, before the

specified production date, the Department sent a declaration stating no copies or records were

submitted pursuant to California Evidence Code section 1040. (Morgan Decl., ¶4, Exh. 2.)

Department’s 1/12/26 response to the subpoena started the 60-day clock in Section 2025.480.

With Plaintiff’s motion served less than 60 days later, the motion is brought timely.

Meet and Confer Requirement

Case law characterizes the meet and confer declaration indicated in Section 2025.480,

subdivision (b), as a requirement designed to encourage the parties to work out their differences

informally which lessens the burden on the court and reduces unnecessary litigation expenses.

(Moore, supra, 102 Cal.App.5th at p. 1293 (emphasis added).) The law requires that counsel

attempt to talk the matter over, compare their views, consult, and deliberate; only after all cards

have been laid on the table, and a party meaningfully assessed the relative strengths and

weaknesses of its position in light of all available information, can there be a sincere effort to

resolve the matter. (Id., at pp. 1293-1294.) It is clear that at least some attempt is required, and

efforts may vary depending on whether the discovery context is large and complex or simple and

narrowly focused. (Id., at p. 1294.)

Plaintiff’s moving papers do not contain any evidence that he met and conferred with the

non-party Department before pursuing the instant motion. The Morgan declaration, which is the

only evidence supplied by the Plaintiff, does not state that he or anyone on behalf of the moving

party met and conferred with the Department about their response to the deposition subpoena.

(See generally Morgan Decl., ¶¶1-6.) In this regard, Plaintiff did not even attempt to meet and

confer, reflecting a wholesale abandonment of the meet and confer requirement. In cases where

there is a clear flaunting of statutory responsibilities, that is grounds to justify summary denial of

discovery. (Moore, supra, 102 Cal.App.5th at p. 1296.)

The Court denies Plaintiff’s motion for its complete failure to even attempt to meet and

confer with non-party Department before filing the instant discovery motion.

Analysis of Merits

On its merits, denial is still warranted as explained next.

Plaintiff’s subpoena identified the deposition officer as USA Express Legal &

Investigative Services, Inc. (USA Express). (Morgan Decl., Exh. 1.) In examining the

Department’s response to the subpoena, it includes a declaration from the San Bernardino

County Sheriff’s Department custodian of records stating “no copies of records are submitted”

and “no records were submitted pursuant to California Evidence Code section 1040.” (Morgan

Decl., Exh. 2.)

Evidence Code section 1040 contains three subdivisions (a) through (c). Subdivision (b)

states that a public entity has a privilege to refuse to disclose official information if the privilege

is claimed by a person authorized to do so and either of two conditions applies: 1) disclosure is

forbidden by an act of Congress or a California statute or 2) disclosure is against the public

interest because there is a necessity for preserving the confidentiality of the information that

outweighs the disclosure necessity in the interests of justice. (Evid. Code, § 1040, subd. (b).)

Subdivision (c), provides that the Employment Development Department shall disclose to

law enforcement agencies information in its possession relating to an arrest warrant issued for

the person for commission of a felony. (Evid. Code, § 1040, subd. (c).)

Department’s subpoena response does not specify which of the Section 1040 grounds

supports its response of no records pursuant to Evidence Code section 1040. More importantly,

Plaintiff did not even attempt to contact the Department to inquire further as to the reasons for

asserting Section 1040. Instead, Plaintiff’s memorandum assumes that Department’s Section

1040 objection is based on subdivision (b) regarding the privilege to refuse to disclose official

information for one of two reasons. (Plaintiff’s Memo., 7:1-28, 8:1-12.) Plaintiff’s

memorandum then addresses requirements for asserting the subdivision (b) objection because

disclosure is against the public interest because of a necessity to preserve confidential

information. (Plaintiff’s Memo., 7:19-28, 8:1-12.)

But this is an assumption that Department’s objection is predicated on subdivision (b)(2)

and not subdivision (b)(1) or (c). In the event the Department’s Section 1040 objection is based

on one of those provisions, Plaintiff’s motion is entirely silent. Instead, Plaintiff skips to a

purely speculative theory that the Department may be withholding records based on unstated

privacy interests and spends two pages analyzing its own speculation. The more reasonable and

logical approach would have been for Plaintiff to have met and conferred with the Department to

inquire first about the specific basis for invoking Evidence Code section 1040, then discussing

whether there was a legitimate basis for claiming such protection, and if so, whether there were

any compromise solutions available.

Instead, Plaintiff disregarded the statutory meet and confer requirement which resulted in

increased litigation expenses for all parties and the nonparty Department and burdened the court

with a discovery motion that disclosed incomplete, uncertain, and speculative arguments which

prevents a meaningful assessment of the Department’s asserted objection and whether the

production sought is subject to discovery, which is a necessary determination under Code of

Civil Procedure section 2025.480, subdivision (i).

It is also worth noting that non-party Department’s opposition is unclear. First,

Department’s opposition states it has not refused to comply with the subpoena but instead

identified responsive body-worn camera recordings and advised Plaintiff that production could

proceed upon agreement from Plaintiff to incur reasonable costs associated with releasing the

material. (Department’s Oppo., 3:1-11.) Department did not submit any evidence with its

opposition. Plaintiff’s evidence does not disclose any response from the Department identifying

body-worn camera recordings or production agreement based upon payment of costs.

Then, Department’s opposition states Plaintiff’s motion is premised on Evidence Code

section 1563 limiting a nonparty witness to recovering reproduction and clerical costs. But

Plaintiff’s motion here, filed on 2/10/26, does not even mention section 1563. Department next

argues that Plaintiff’s reliance on National Lawyers Guild v. City of Hayward (2020) 9 Cal.5th

488 (Guild) is misplaced. But Plaintiff’s motion does not even mention the Guild case.

Thus, it appears that nonparty Department has conflated the instant case with an entirely

different lawsuit or matter such that its opposition sheds no meaningful light on the Plaintiff’s

motion to compel compliance.

Likewise, Linc and Aperto’s joinder does not supply any helpful or useful information

that would salvage Plaintiff’s motion.

CONCLUSION

Based on the foregoing, the court rules as follows:

DENIES Plaintiff’s motion for failure to meet and confer with non-party Department

before filing the instant discovery motion and, on the merits, for the reasons stated above.

Counsel for the moving party is ordered to provide notice.

IT IS SO ORDERED.

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