Judge: Andrew E. Cooper, Case: 21STCV08808, Date: 2024-05-29 Tentative Ruling

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Case Number: 21STCV08808    Hearing Date: May 29, 2024    Dept: F51

MOTION TO QUASH DEPOSITION NOTICE

Motion Filed: 12/12/23

MOVING PARTY: Defendants Donald Thompson; and DT Financial, Inc. (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff Alfonso Gomez (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: An order quashing Plaintiff’s 11/16/23 notice of deposition of the person most qualified (“PMQ”) for defendant DT Financial, Inc. (“DT Financial”), or, in the alternative, a protective order prohibiting the noticed deposition from being taken. Defendants also seeks monetary sanctions against Plaintiff and/or his counsel in the amount of $2,010.00.

TENTATIVE RULING: Defendants’ motion to quash is granted. The Court imposes sanctions against Plaintiff’s counsel in the amount of $710.00. Plaintiff’s motion to compel is therefore moot.

Plaintiff is reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

BACKGROUND

This is a personal injury action in which Plaintiff alleges that on 9/12/20, while driving eastbound on Via Princessa in the Santa Clarita, CA, his vehicle was struck head-on by that driven by defendant Donald Thompson, causing Plaintiff serious bodily injury. (FAC ¶¶ 13–15.) Plaintiff alleges that “at the time of this collision, Defendant DONALD THOMPSON was a driver/transportation provider who was operating his vehicle and was an agent, employee, partner, or alter-ego of DT FINANCIAL, INC.” (Id. at ¶ 8.)

On 3/5/21, Plaintiff filed his original complaint against Defendants, alleging the following causes of action: (1) Motor Vehicle Negligence; (2) General Negligence; and (3) Intentional Tort. On 6/15/21, Plaintiff filed his first amended complaint (“FAC”), alleging against Defendants the following causes of action: (1) Negligence; and (2) Negligence Per Se. On 8/31/21, Thompson filed his answer. On 1/26/22, DT Financial filed its answer.

On 9/2/22, Plaintiff served a notice of deposition of Thompson. (Ex. A to Decl. of Bernhard E. Bihr.) On 12/7/22, Plaintiff served an amended deposition notice, and Thompson was deposed on 1/27/23. (Ex. B to Bihr Decl.; Bihr Decl. ¶ 2.) On 11/16/23, Plaintiff served Defendants with a notice of deposition of DT Financial’s PMQ and related requests for production of documents. (Ex. E to Bihr Decl.) On 12/12/23, Defendants served their responses and objections to the subject deposition notice. (Ex. K to Bihr Decl.)

On 12/12/23, Defendants filed the instant motion to quash the deposition notice served on DT Financial. On 1/3/24, Plaintiff filed his opposition. On 1/5/24, Plaintiff filed a motion to compel the deposition of DT Financial’s PMQ. On 1/8/24, Defendants filed their reply in support of the instant motion to quash.

ANALYSIS

In addition to serving written objections to a deposition notice, “a party may also move for an order staying the taking of the deposition and quashing the deposition notice.” (Code Civ. Proc. § 2025.410, subd. (c).) The Court may also, “for good cause shown, … make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. § 2025.420, subd. (b).) Here, Defendants move to quash Plaintiff’s 11/16/23 deposition notice to DT Financial on the bases that “the discovery sought is unreasonably cumulative or duplicative, since Defendant DONALD THOMPSON (“Thompson”), who has already been deposed, has disclosed all the relevant information about Defendant’s activities and that a second deposition of Thompson would create unwarranted annoyance, embarrassment, and oppression.” (Def.’s Mot. 2:9–12.)

A.    Meet and Confer

A motion to quash a deposition notice “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2025.410, subd. (c).) Here, Defendants’ counsel declares that on 11/20/23, he sent Plaintiff’s counsel an email acknowledging receipt of the subject deposition notice and raising the issues discussed in the instant motion. (Bihr Decl. ¶ 6.) On 11/21/23, Plaintiff’s counsel responded, but the parties were unable to informally resolve the dispute. (Id. at ¶ 9.) Accordingly, the Court finds that counsel has satisfied the meet and confer requirements under Code of Civil Procedure section 2025.410, subdivision (c).

B.     Cumulative and Duplicative

“The court shall restrict the frequency or extent of use of a discovery method … if it determines …[that] the discovery sought is unreasonably cumulative or duplicative.” (Code Civ. Proc. § 2019.030, subd. (a)(1).) Here, Defendants argue that as Thompson is the sole employee of DT Financial, Plaintiff’s notice to depose DT Financial’s PMQ would necessarily result in a second deposition of Thompson. Plaintiffs argue that this second deposition would be unnecessarily duplicative, as Plaintiff’s counsel already “asked numerous questions about DT Financial and was aware that DT Financial did not own the vehicle involved in the collision and that Thompson was not acting on behalf of DT Financial at the time of the collision.” (Defs.’ Mot. 4:4–6.)

Specifically, Defendant contends that “the eleven deposition categories listed in the Notice as concerning DT Financial had been covered in the previous questioning of Thompson. Concerning the 54 requests for production, requests 1-34 were identical to the requests that were part of the previous deposition of Thompson, as well as Plaintiff’s first set of Requests for Production served on him. Requests 35-42 had nothing to do with DT Financial. Requests 43-49 improperly sought financial information of DT Financial without a court order. Requests 50-53 again had nothing to do with DT Financial.” (Id. at 4:14–19.)

In opposition, Plaintiff appears to concede that “DT Financial is one person corporation, the ownership, operation and assets of which are controlled and managed solely by Donald Thompson himself. Hence, any act performed by Donald Thompson, which is within the scope of his apparent authority, is the act of Defendant DT Financial.” (Pl.’s Opp. 6:4–7.) Plaintiff asserts that “logically, all assets and liabilities which the corporation has, are also of Donald Thompson. It is therefore reasonable to think at this moment that DT Financial has all of Donald Thompson’s properties in its capital, if not substantial.” (Id. at 7:1–3.)

On reply, Defendants maintain that “Plaintiff has simply failed to make any … showing [of the necessity of the deposition], given that he has not identified any new subject areas on which he would question Thompson, or why he is seeking documents Defendants have already produced.” (Defs.’ Reply 9–11.) The Court agrees. That Thompson is the sole owner and manager of DT Financial does not mean that his individual acts are necessarily acts of the corporation. The Court notes Plaintiff cites no legal authority supporting this argument.

While the Court agrees with Plaintiff that the scope of discovery is broad, and that a party has the right to depose another party as part of the discovery process, under the instant circumstances, the Court finds that Plaintiff has not sufficiently shown why a second deposition of Thompson concerning virtually the same categories of questions and documents as Thompson’s first deposition, would not be unnecessarily cumulative and duplicative.

Based on the foregoing, the Court grants Defendant’s motion to quash the 11/16/23 notice of deposition of DT Financial’s PMQ.

C.    Sanctions

“The 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.” (Code Civ. Proc. § 2023.030, subd. (a).)

Here, Defendants request $2,010.00 in monetary sanctions against Plaintiff and/or his counsel, which encompasses: (1) 4 hours of Defendants’ attorney’s time spent this motion; and (2) an anticipated 2 hours reviewing Plaintiff’s opposition, drafting a reply, and attending the instant hearing, at his hourly billing rate of $325.00 per hour. (Bihr Decl. ¶ 11.) Defendants also seek to recover $60.00 in filing fees relating to the instant motion. (Ibid.) In granting the instant motion, the Court finds it reasonable to award Defendants monetary sanctions in the amount of $710.00. against Plaintiff’s counsel.

CONCLUSION

Defendants’ motion to quash is granted. The Court imposes sanctions against Plaintiff’s counsel in the amount of $710.00. Plaintiff’s motion to compel is therefore moot.