20 Days to Move on a Consumer

Thai v. Richmond City Center, No. G060823 (D4f3 Dec. 12, 2022)

One of the weird things about the Code of Civil Procedure is that there are two overlapping sets of statutes that deal with third party discovery. There are the third party discovery provisions of the Civil Discovery Act—Code Civ. Proc. §§ 2020.110-2020.440—which denote all third party discovery as “depositions” and deal with records, testimony, and records and testimony subpoenas. Then there are an older set of statutes in the “of the production of evidence” title, which are addressed to both discovery and trial subpoenas. See §§ 1985-1997. For some reason, nobody bothered to harmonize these when the Discovery Act was passed. And even more confusingly, the legislature continues to amend the older provisions without re-codifying them. Sometimes, they created contradictory requirements. This case points to one of them.

The older statutes have some requirements for when a consumer’s personal records are sought through a subpoena duces tecum. See § 1985.3. The require notice to the consumer, who has an opportunity to object, which stays compliance with the subpoena. If an objection is made, the party serving the subpoena can only obtain the records by filing a motion to compel. That motion needs to be filed within 20 days. § 1985.3(g).

But under the Discovery Act, third party records can be obtained through a so-called “records only” deposition subpoena. § 2020.410. As with any deposition, the deponent can object to the form of the notice, but that alone does not stay the obligation to comply. § 2025.410. If the records aren’t produced, the noticing party can file a motion to compel. It has 60 days to do so. § 2025.480(b). Case law says the 60 days starts to run from the service of objections. 

Here, Plaintiff is suing Defendant over the purchase of Defendant's interest in a Partnership they co-owned. Plaintiff served subpoenas with testimony and records and records only demands on Partnership’s accountant and property manager that sought certain consumer records belonging to Partnership. Partnership objected. About 55 days later, Plaintiff filed a motion to compel. The court granted the motion and Partnership appealed.

The motion is timely under the 60 days but untimely under the 20. The question, then, is which deadline applies: the 20 days under § 1985.3(g) or the 60 under § 2025.480(b)? Relying on the structure of the statutes, their legislative history, and the canon that the specific controls over the general, the court finds that the 20 days applies.

Reversed.