The California Court of Appeal, Fourth Appellate District, Division Three, has issued a published opinion in Thai v. Richmond City Center, L.P. (2022) 86 Cal.App.5th 282, No. G060823, reversing a discovery order and an accompanying sanctions award entered against the firm's clients. Joseph M. Adams and Julie A. Goerlinger, then of Adams & Pham and now of Martin Adams APC, represented the defendants and appellants.
The opinion resolves a question no published California decision had squarely addressed: whether a party that lets the 20-day deadline in Code of Civil Procedure section 1985.3, subdivision (g), expire can still enforce a consumer-records subpoena by filing a motion to compel under section 2025.480 and borrowing its 60-day deadline. The court held it cannot.
Background
Thomas Thai and Newton Tran were partners in Richmond City Center, L.P. Thai agreed to sell Tran his 20.5 percent interest for $1,767,107.32, and the parties signed a sales agreement in April 2019. Months later Thai sued Tran, alleging $116,854.40 of the purchase price remained unpaid and asserting breach of contract and fraud. Tran cross-complained for declaratory relief, reformation and rescission. Richmond itself was not a party to the suit.
In March 2021 Thai served two deposition subpoenas on nonparties — Richmond's property manager and its accountant — seeking Richmond's records. Because those were a consumer's personal records, Thai served Richmond with a notice to consumer for each subpoena under section 1985.3. (The statute defines "consumer" to include a partnership of five or fewer persons, and it was undisputed that Richmond qualified.) Richmond served written objections on April 7, 2021, before each production date. Neither witness produced anything.
Nearly two months later, on June 2, 2021, Thai moved to compel both witnesses under section 2025.480 and sought sanctions. Tran opposed the motions; Richmond did not. The trial court granted them and awarded $1,245 in sanctions against Richmond and its attorneys. Richmond appealed.
What the court held
Section 1985.3, subdivision (g), provides that once a nonparty consumer objects, no witness or deposition officer is required to produce the personal records absent a court order or the agreement of the parties, witnesses and consumers affected. It then provides that the subpoenaing party "may bring a motion under Section 1987.1 to enforce the subpoena within 20 days of service of the written objection."
The Court of Appeal held that this 20-day period is the exclusive window. Once it closes, the subpoenaing party cannot enforce the subpoena over the consumer's objection through a section 2025.480 motion to compel. Because Thai's motions came roughly 60 days after the objections, they were untimely, and the trial court erred in granting them. The order was reversed and Richmond was awarded its costs on appeal.
The court's reasoning
"May" goes to the choice, not the clock. Thai argued that because the statute says a party "may" move within 20 days, the deadline is permissive — fixing only the earliest date to file, with section 2025.480 supplying the latest. The court disagreed. "May" makes the decision whether to move permissive, not the timing; section 2025.480, subdivision (a), uses the word the same way. A subpoenaing party has good reasons it might not move at all: it may reach an agreement, or the discovery may duplicate what it already holds.
No one failed to produce. Section 2025.480 is available only "[i]f a deponent fails to . . . produce any document . . . under the deponent's control." Once Richmond objected, section 1985.3, subdivision (g), absolved the property manager and the accountant of any obligation to produce absent a court order or agreement — and there was neither. Because no failure to produce had occurred, section 2025.480 had nothing to operate on.
The legislative history points the same way. Subdivision (g) took its present shape in 1996 through Senate Bill No. 1821. The Assembly Judiciary Committee's analysis described the bill as permitting a nonparty consumer to object, after which "[t]he requesting party would then need to bring a motion within 20 days of the objection to enforce the subpoena."
The specific controls the general, and nothing is surplusage. The specific 20-day deadline in section 1985.3, subdivision (g), is presumed to control over the general 60-day deadline in section 2025.480, subdivision (b). And if a party could simply wait out the 20 days and then move to compel, the 20-day limit would do no work at all — a reading the court declined to adopt.
The opinion also draws a clean line between the two motions. A motion under section 1987.1 is the vehicle when a nonparty consumer's objection is what is holding up production, because it is the consumer, not the witness, that is withholding. A motion to compel under section 2025.480 is the vehicle when the witness itself refuses to produce. The court further noted that the contrary suggestion in Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123 was dicta, leaving the question open until now.
Having reversed on timeliness, the court did not reach the appellants' second argument — that sanctions were improper because Richmond had not opposed the motions. In a footnote it expressly reserved two further questions: whether the 20-day deadline is jurisdictional, and whether an objecting nonparty consumer can be sanctioned at all, observing that neither section 1985.3 nor section 1987.1 mentions sanctions.
Why it matters
Consumer-records subpoenas are routine in California civil litigation, and the notice-to-consumer procedure produces objections as a matter of course. This opinion turns the response to those objections into a short-fuse decision. From the date the written objection is served, the subpoenaing party has 20 days to file a motion under section 1987.1 — and the familiar 60-day discovery clock is not available as a fallback. Counsel who calendar 60 days out of habit may find the subpoena unenforceable well before the deadline they were watching runs.
The opinion is equally practical from the other side. For a nonparty consumer whose records are subpoenaed, a timely written objection that cites specific grounds and is served before the production date does two things: it relieves the witness of any duty to produce, and it starts a clock the subpoenaing party can miss.
Read the opinion
The full published opinion is available here: Thai v. Richmond City Center, L.P., No. G060823 (PDF). It is also posted by the California Courts at courts.ca.gov.
About Martin Adams APC
Martin Adams APC is a California law firm practicing municipal and local government law, real estate, litigation, administrative law, and appellate advocacy, with a developing federal appellate practice. The firm represents public agencies, businesses, and individuals in state and federal courts.
Media contact: Joseph M. Adams, Martin Adams APC, 1 Park Plaza, Suite 600, Irvine, California 92614. Direct (714) 602-4266. jadams@martinadamslaw.com.
This post summarizes a published appellate decision and is offered for general information. It is not legal advice, and it does not create an attorney-client relationship. Prior results do not guarantee a similar outcome.
