B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 06/12/2025 Hearing on Motion to Compel Compliance with Deposition Subpoena for Appearance with Production of Documents in Department 54

or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

Defendant Spare-Time, Inc.’s (“Defendant”) motion to compel compliance with deposition subpoena for appearance with production of documents is ruled upon as follows.

Background

In this case, Plaintiff B.B., a minor appearing by and through her guardian ad litem, Jamie Mauhay Powers (“Plaintiff”), alleges she was sexually abused by Kaspar Zemaitelis, a tennis coach at the Junior Tennis Academy at Rio Del Oro Sports Club (“Rio Del Oro”) in Sacramento, from October of 2021 to July of 2022 when Plaintiff was 14 years old. Rio Del Oro is one of several athletic clubs owned by Defendant. Plaintiff’s Complaint includes two causes of action: (1) negligence and (2) premises liability.

On October 1, 2024, Defendant served a deposition notice and a deposition subpoena for personal appearance and production of documents and things (“Deposition Subpoena”) on Plaintiff’s mother, Dana Brown (“Brown”). (Declaration of Paul S. Thies [“Thies Decl.”], ¶¶ 2- 3.) Brown is not a party to the action. The Deposition Subpoena included a document demand consisting of 131 separate requests. (Thies Decl. ¶ 3, Exh. B.) On November 4, 2024, one day before the scheduled deposition, Brown served responses consisting of objections and stating that “Plaintiff has no documents at this time in her custody, control or possession responsive to this request which have not already been produced.” (Thies Decl. ¶ 4, Exh.

C.) On November 5, 2024, Brown’s oral deposition was taken, at which Brown was represented by Plaintiff’s counsel. (Declaration of Celine E. Cutter [“Cutter Decl.”], ¶ 4.) Beginning in early February, the parties began meeting and conferring regarding Brown’s response to the Deposition Subpoena. (Theis Decl. ¶ 5, Exh. D.) Defendants contended that Brown’s objections were waived because they were submitted only one day before the scheduled deposition. Brown, through Plaintiff’s counsel, responded that nonparties are permitted to raise objections at the deposition or time for document production, and further argued that the time for a motion to compel further responses to a deposition subpoena had expired. (Thies Decl.

Exh. G.) This motion followed.

Discussion

Defendant raises the following arguments in support of its motion: Brown’s responses are unverified and therefore untimely; Plaintiff’s privacy rights have been waived as to the information sought in the requests; Brown’s objections are untimely and thus waived; Brown’s

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 06/12/2025 Hearing on Motion to Compel Compliance with Deposition Subpoena for Appearance with Production of Documents in Department 54

objections are without merit; and Brown’s responses are incomplete and evasive. In opposition, Brown contends that Defendant’s motion improperly conflates the provisions of the Civil Discovery Act (“Act”) that apply to parties to an action with those that apply to nonparties. While the Act authorizes a number of discovery mechanisms to obtain information from another party in the action, “discovery from a nonparty may be obtained only by ‘deposition subpoena.’” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 130, citing Code Civ.

Proc., § 2020.010, subd. (b), italics in original.) Brown argues, for example, that Defendant’s notice of motion purports to rely on Code of Civil Procedure section 2030.300, which authorizes a motion to compel further responses to interrogatories. Interrogatories are not at issue here, and are not an authorized discovery device to obtain information from a nonparty. (Code Civ. Proc., § 2030.010, subd. (a) [interrogatories may be propounded “to any other party to the action”].) Brown further argues that because she is not a party to the action, Defendant was required to timely move to compel further responses pursuant to Code of Civil Procedure section 2025.480, subd. (a), which authorizes a motion to compel further responses from a nonparty deponent: (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. (Code Civ.

Proc., § 2025.480, subds (a), (b).) Brown contends that the instant motion is untimely, as it was filed on February 10, 2025, more than 60 days after the completion of the record of her deposition in November of 2024. Brown is correct. “In civil litigation, discovery may be obtained from a nonparty only through a ‘deposition subpoena,’” by which a party is authorized to take “a nonparty’s ‘oral deposition,’ ‘written deposition,’ and ‘deposition for [the] production of business records.’” (Unzipped Apparel, LLC v.

Bader, supra, 156 Cal.App.4th at p. 127, quoting Code Civ. Proc, § 2020.010, subds. (a), (b).) “If a deponent fails to produce a requested document under his or her control, the subpoenaing party may bring a motion to compel production “no later than 60 days after the completion of the record of the deposition.” (Ibid, quoting Code Civ. Proc., § 2025.480, subd. (b), italics in original.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 06/12/2025 Hearing on Motion to Compel Compliance with Deposition Subpoena for Appearance with Production of Documents in Department 54

Where a deposition subpoena seeks production of documents, the “record of the deposition” is complete and the 60-day period begins to run when a responding party serves objections and declines to produce any documents. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192 [“At the time the objections are served, the record of deposition is complete”].) This is because the service of objections, without production of documents, provides the requesting party with all necessary information to make a motion to compel: A business records subpoena often results in one of two responses: the 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. (Unzipped Apparel, LLC v. Bader, supra, 156 Cal.App.4th at p. 132; see also Bd. of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1032 [where responding parties served only objections, “deposition was therefore complete when these objections were served, and the 60-day period to file a motion to compel began to run on that date”].)

Here, Brown served objections and responses indicating she would produce no documents on November 4, 2024, and appeared for her deposition on November 5, 2024, at which she produced no documents. The 60-day period for Defendant to file a motion to compel as to the subpoena for documents therefore began to run no later than November 5, 2024.[1] As this motion was filed more than 60 days after the service of Brown’s responses, it is untimely. Defendant contends that the rule articulated in the caselaw discussed above does not apply to the Deposition Subpoena because Unzipped Apparel and Board of Registered Nursing “addressed the 60-day timeline in the context of a nonparty deposition for business records.” (Opening Mem. 7:25-26.)

Defendant argues it “is not seeking business records pursuant to CCP 2020.510” but rather “Defendant submitted a Deposition Subpoena for Personal Appearance pursuant to CCP 2025.010 and Production of Documents and Things pursuant to CCP 2031.210.” (Opening Mem. 7:26-8:1.) Here again, however, Defendant conflates party and nonparty discovery methods. An inspection demand pursuant to Code of Civil Procedure section 2031.010 may only be propounded upon “any other party to the action.” (Code Civ. Proc. § 2031.010, subd. (a).)

To the degree Defendant sought the production of documents from Brown, a nonparty, it had to do so by way of a deposition subpoena. (Code Civ. Proc. § 2020.010; see also Code Civ. Proc. § 2020.020 [“A deposition subpoena may command any of the following: (c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things”].) The Deposition Subpoena is therefore subject to the requirements in Code of Civil Procedure section 2025.480, including the 60-day

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 06/12/2025 Hearing on Motion to Compel Compliance with Deposition Subpoena for Appearance with Production of Documents in Department 54

time limitations period for a motion to compel, and the holdings of Unzipped Apparel, Rutledge, and Board of Registered Nursing control the result here. Defendant’s next argument, that it is permitted to bring the instant motion because Brown failed to verify her substantive responses thus her responses should be considered untimely, fails for similar reasons. Defendant contends that a fact-specific response to a request for production must be made under oath; otherwise the unverified fact-specific portion of the request is considered untimely and subject to a motion to compel. (Opening Mem. 7:1-21, citing Food 4 Less Supermarkets, Inc. v.

Superior Court (1995) 40 Cal.App.4th 651, 657-658.) The verification requirement for a response to an inspection demand applies only to a demand served on a party to the action, however. (Code Civ. Proc. § 2031.010, subd. (a); 2031.210-2031.250.) Such an inspection demand to a party was at issue in Food 4 Less, and thus that case does not assist Defendant. (Food 4 Less Supermarkets, Inc. v. Superior Court, supra, 40 Cal.App.4th at p. 658 [“Defendants did serve their responses within the statutory time period”], italics added.)

On reply, Defendant argues that Brown, even as a nonparty, was required to serve any objections to the Deposition Subpoena no later than three days before the scheduled deposition pursuant to Code of Civil Procedure section 2025.410, subd. (a). Defendant argues Brown waived her objections and that they are untimely because she served them one day before the deposition, rather than three days before as is required for party depositions. Defendant is incorrect. While Code of Civil Procedure section 2025.410, subdivision (a), requires objections by “[a]ny party served with a deposition notice” to be served at least three calendar days before the date scheduled for the deposition, Brown is not a party to this action and thus section 2025.410 does not apply to the Deposition Subpoena.

The Civil Discovery Act distinguishes between provisions which apply only to parties to the action and those which do not. For example, Code of Civil Procedure section 2025.480, which contains the “60-day rule” discussed above, applies where “a deponent” fails to obey a “deposition notice or a deposition subpoena,” and thus requires both parties and nonparties to comply with its terms. By contrast, Code of Civil Procedure section 2025.410, subdivision (a), requires “[a]ny party served with a deposition notice,” as opposed to a nonparty served with a deposition subpoena, to file objections no later than three days before the scheduled deposition.

Thus, section 2025.410 applies only to parties served with deposition notices, and does not apply to Brown, a nonparty served with a deposition subpoena. (See also Unzipped Apparel, LLC v. Bader, supra, 156 Cal.App.4th at p. 136 [nonparty’s objections to business records subpoena, served on the date set for production, were timely].) Defendant also contends on reply that the record of the deposition is not complete because Brown testified in her deposition that she had not searched for some of the documents at issue in the subpoena for records.

Defendant contends “[t]his is sufficient indicia that this search is ongoing, and the record is incomplete because those records would later be produced after

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 06/12/2025 Hearing on Motion to Compel Compliance with Deposition Subpoena for Appearance with Production of Documents in Department 54

Brown’s scheduled deposition” as “Brown and her Counsel did not say otherwise during her deposition.” (Reply, 6:25-28.) However, nothing in the record indicates that Brown ever agreed to provide documents at a later time, and even if she had, it would not alter the application the motion deadline. (See Bd. of Registered Nursing v. Superior Court, supra, 59 Cal.App.5th at p. 1035, fn. 5 [“There is no statement of intended compliance. If a party is unsatisfied with a nonparty’s compliance at the end of the 60-day period, the party must file a motion to compel compliance”].)

Defendant does not address the controlling caselaw discussed above which establishes that the record is complete when a third party responding to a subpoena for documents serves objections and declines to produce any documents. (Unzipped Apparel, LLC v. Bader, supra, 156 Cal.App.4th at p. 132; Bd. of Registered Nursing v. Superior Court of Orange County, supra, 59 Cal.App.5th at p. 1032.) Defendant had all the information it needed to prepare a motion to compel no later than November 5, 2025, by which time Brown had served written objections and responses stating no documents would be produced, and given her deposition, at which she produced no documents.

Nevertheless, Defendant did not file the instant motion until February 10, 2025, well after the 60-day limitations period had passed.[2] The motion is therefore untimely.

Disposition

Defendant’s motion is denied. The Minute Order is effective immediately. No formal order pursuant to California Rules of Court, Rule 3.1312 is required.

[1] The parties did not address and the Court need not resolve whether the time for preparation of

the transcript of Brown’s oral deposition extends the date of completion of the record of deposition for purposes of Code of Civil Procedure section 2025.480, subd. (b). The evidence indicates that the transcript of Brown’s deposition was complete as of November 12, 2024. (Cutter Decl. Exh. 5.) Even if the 60-day period were deemed to run from November 12, 2024, the instant motion, filed February 10, 2025, would still be untimely. [2] The parties’ correspondence also does not indicate that Defendant ever sought an extension of

the motion deadline from Plaintiff’s counsel. (See Board of Registered Nursing v. Superior Court, supra, 59 Cal.App.5th at p. 1035, fn. 5 [“We express no opinion whether and to what extent this date, or any other relevant date, may be extended by agreement of the party and nonparty. Defendants have not shown that any such agreement exists here”].)