Judge: Barbara M. Scheper, Case: 21STCV31784, Date: 2022-10-26 Tentative Ruling

Case Number: 21STCV31784    Hearing Date: October 26, 2022    Dept: 30

Dept. 30

Calendar No.

Park vs. Gi, et. al., Case No. 21STCV31784

Tentative Ruling re:  Plaintiff’s Motion to Compel Deposition

Plaintiff Jung Sam Park (Plaintiff) moves to compel Defendant 1500 Plaza, LLC (1500 Plaza) to appear for deposition and produce responsive documents. The motion is granted.

Any party may obtain discovery, subject to restrictions, by taking the oral

deposition of any person, including any party to the action.  (Code Civ. Proc., § 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.  (Code Civ. Proc., § 2025.280, subd. (a).)  

“If, after service of a deposition notice, a party to the action . . . or employee of a party . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc. § 2025.450, subd. (a).)

“The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (b)(1).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery. (See Glenfed Develop. Corp. v. Sup.Ct. (1997) 53 Cal.App.4th 1113, 1117)

Code Civ. Proc. § 2017.010 imposes a “reasonably calculated” limitation on the scope of all discovery.  Section 2017.020(a) vests the judge with authority to limit the scope of discovery if the burden, expense, or intrusiveness of the discovery sought “clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.”  Section 2019.030 directs the judge to consider the needs of the case, amount in controversy, and the importance of the issues at stake in the litigation, and to consider whether the discovery being sought is unreasonably cumulative or duplicative, or is obtainable by a more convenient or less expensive or less burdensome way, when deciding whether to restrict the frequency of extent of use of an authorized discovery method.

Plaintiff served the Notice of Deposition on 1500 Plaza on June 28, 2022, noticing the deposition of 1500 Plaza’s PMQ for August 2. The Notice of Deposition also included 14 requests for production. (Sullivan Decl., Ex. 1.)

On July 25, counsel for Defendants told counsel for Plaintiff that 1500 Plaza would not appear on August 2 because its PMQ Daniel Gi would be out of town, and because Gi also insisted on appearing during the testimony of the other PMQ, 1500 Plaza’s accountant. (Sullivan Decl. ¶ 19.) Defense counsel did not provide alternative dates for the deposition during that meeting, and did not provide any alternative dates in response to Plaintiff’s subsequent requests. (Sullivan Decl. ¶¶ 23-33.)

1500 Plaza served its objections on July 28, 2022. (Sullivan Decl., Ex. 5.) 1500 Plaza objected on the basis that it and its counsel were not available on the noticed date, and also set forth identical, boilerplate objections in response to each noticed topic and document request.

            In its opposition to this motion, 1500 Plaza requests a protective order limiting Plaintiff’s discovery. This request is improper; 1500 Plaza must seek a protective order “promptly” via noticed motion. (Code Civ. Proc. § 2025.420, subd. (a); see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) Ch. 8E, ¶ 8:687 (Protective Orders) [“A formal noticed motion and hearing are always required. A protective order cannot be granted ex parte.”].)

            1500 Plaza has not presented any argument in support of its objections to the Notice of Deposition.

            Accordingly, the motion to compel is granted.  The witnesses are ordered to appear for deposition within thirty (30) days of today’s date.  Counsel to meet and confer to agree upon dates and times.  Responsive documents must be produced five (5) days prior to the deposition date.