Judge: Alison Mackenzie, Case: 22STCV10313, Date: 2025-04-24 Tentative Ruling

Case Number: 22STCV10313    Hearing Date: April 24, 2025    Dept: 55

NATURE OF PROCEEDINGS: Hearing on Sotheby’s Motion to Compel Deposition of Plaintiff Larry Wade.

The motion to compel a deposition is granted, and sanctions in the amount of $2,160 are to be paid by Plaintiff within ten days of the issuance of this order. Plaintiff shall appear for examination at a telephonic deposition, within twenty days of the issuance of this order, and shall produce for inspection the original copies of the documents as requested on the notice of deposition served on December 3, 2024.

BACKGROUND

Plaintiff Larry Wade filed this action against Wynstar Investments, LLC, and numerous other defendants, including Sotheby’s International Realty, Inc. (Sotheby’s).

Sotheby’s filed a Motion to Compel. Plaintiff filed an Opposition.

LEGAL STANDARD

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Code Civ. Proc., § 2017.010.

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records. Code Civ. Proc., § 2020.010. A deposition subpoena may command the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. Code Civ. Proc., § 2020.020. The Court may order a third party to comply with a deposition subpoena upon any terms or condition as the court shall declare. Code Civ. Proc., § 1987.1.

California Rules of Court, rule 3.1346 states: “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”

ANALYSIS

I. Deposition Notices

Here, Sotheby’s properly noticed Plaintiff’s deposition twice. On October 25, 2024, Sotheby’s counsel served Plaintiff’s counsel with Notice of Deposition of Plaintiff Larry Wade set for November 25, 2024. Salehi Decl. ¶ 3. During a meet and confer conversation between Sotheby’s counsel and Plaintiff’s counsel, Plaintiff’s counsel stated that Plaintiff was unavailable on that date and that he would provide alternative deposition dates. Salehi Decl. ¶ 4. Plaintiff’s counsel failed to provide alternative dates. Salehi Decl. ¶ 4. On December 3, 2024, Sotheby’s counsel served Plaintiff’s counsel with a second deposition notice set for January 3, 2025. Salehi Decl. ¶ 5. Plaintiff failed to appear for his January 3, 2025, deposition without serving a formal objection or obtaining a protective order. Salehi Decl. ¶ 6. Since then, Plaintiff’s counsel has continually failed to provide alternative deposition dates.

II. Piecemeal Depositions

“Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.” Code Civ. Proc., § 2025.610, subd. (a).

“Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” Code Civ. Proc., § 2025.290, subd. (a)

“This section shall not apply …[t]o any party who appeared in the action after the deposition has concluded, in which case the new party may notice another deposition subject to the requirements of this section. Code Civ. Proc., § 2025.290, subd. (b)(6).

Plaintiff explains that his failure to attend the deposition was based on a desire to avoid piecemeal depositions. Because there were previous defendants who had not yet answered, Plaintiff argues that Code of Civil Procedure section 2025.610, subdivision (a), would not have prevented defendants who answered after his deposition from also deposing him. Moreover, any subsequent depositions could each be up to seven hours.

This argument is without merit. As Plaintiff himself explains, the Code of Civil Procedure does not protect Plaintiff from potentially facing multiple depositions. Plaintiff’s desire to avoid the possibility of piecemeal depositions did not excuse him from complying with the deposition subpoena.

II. Sanctions

Sotheby’s requests sanctions in the amount of $2,160.

Code of Civil Procedure section 2023.030, subdivision a provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” “If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Code Civ. Proc., § 2023.030. Misuse of the discovery process includes “[f]ailing to respond or to submit to an authorized method of discovery.” Code Civ. Proc., § 2023.010.

The Court finds no substantial justification for Plaintiff’s failure to attend the January 3, 2025, deposition or to provide alternative dates. Accordingly, it grants Sotheby’s request for sanctions.

CONCLUSION

Sotheby’s Motion to Compel is granted.