Judge: Armen Tamzarian, Case: 20STCV43681, Date: 2023-08-10 Tentative Ruling

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Case Number: 20STCV43681    Hearing Date: March 27, 2024    Dept: 52

Defendant Flintridge Riding Club’s Motion to Compel Responses to Requests for Production of Documents and Deposition

Defendant Flintridge Riding Club moves compel plaintiff David Johnston to produce documents requested in the notice of his deposition and testify further at deposition.  One may move to compel the deposition of a party and move for production of requested documents when that party fails to appear at deposition or produce the requested documents “without having served a valid objection under Section 2025.410.”  (CCP § 2025.450(a).)

The fifth amended notice of plaintiff’s deposition included requests for 23 categories of documents.  (Skinner Decl., Ex. A.)  Plaintiff did not object to those requests.  He did not produce any documents before his deposition on February 6, 2024.  (Id., ¶ 6.)  At his deposition, plaintiff testified he possesses responsive documents but did not produce them.  (Id., ¶ 7, Ex. C.)  Defendant shows good cause to demand these categories of documents.  The court therefore will order plaintiff to produce responsive documents.  The court will also order plaintiff to further testify at his deposition so defendant has an opportunity to examine him about the documents.    

Sanctions

            Defendant moves for $5,880 in sanctions against plaintiff.  “If a motion” to compel deposition or production of documents specified in a deposition notice “is granted, the court shall impose a monetary sanction … in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (CCP § 2025.450(g)(1).) 

            The court has no basis to find plaintiff acted with substantial justification.  Sanctions are just under the circumstances.  Defendant, however, did not reasonably incur $5,880 in expenses.  That amount includes: 5.5 hours of attorney fees (at $300 hourly) for preparing the motion; 8.5 hours of fees for a paralegal (at $120 hourly) assisting in preparing the motion; 4.5 hours of attorney fees anticipated for reviewing an opposition, drafting the reply, preparing for and attending the hearing; 4.5 hours of fees for a paralegal reviewing the opposition and assisting with the reply; and 6 hours preparing for and conducting the third session of plaintiff’s deposition.  (Skinner Decl., ¶¶ 9-11.) 

            Plaintiff did not oppose the motion.  Defendant did not file a reply.  Defendant cannot recover sanctions for those anticipated attorney fees. 

Defendant also cannot recover fees for preparing for and conducting the third session of plaintiff’s deposition.  A court may impose monetary sanctions for “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of” the opposing party’s misuse of the discovery process.  (CCP § 2023.030(a).)  Defendant did not incur these fees as a result of plaintiff’s misuse of the discovery process.  Defendant would have spent that time if plaintiff had timely produced the documents before or at his deposition.  Moreover, courts cannot impose monetary sanctions for future expenses because a party “had not ‘incurred’ those expenses within the meaning of section 2023.030, subdivision (a).”  (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)  In that case, the Court of Appeal held the trial court erred in “award[ing] monetary sanctions related to anticipated costs of a future deposition.”  (Ibid.)

            The court therefore will award defendant a total of $2,730 in sanctions: 5.5 hours of attorney fees at $300 hourly, 8.5 hours of fees for a paralegal at $120 hourly, plus the $60 filing fee.     

Disposition

            Defendant Flintridge Riding Club’s motion to compel production of documents and further deposition is granted. 

Plaintiff David Johnston is ordered to produce all documents responsive to requests for production Nos. 1-23 specified in the fifth amended notice of his deposition within 20 days.  Plaintiff David Johnston is ordered to appear and testify to complete his deposition within 35 days.  Plaintiff David Johnston is ordered to pay defendant Flintridge Riding Club $2,730 in sanctions within 35 days.