Judge: Barbara M. Scheper, Case: 22STCV16577, Date: 2023-08-31 Tentative Ruling

Case Number: 22STCV16577    Hearing Date: August 31, 2023    Dept: 30

Dept. 30

Calendar No.

Fudge-Cheatom, et. al. vs. Strathern Park, et. al., Case No. 22STCV16577

Tentative Ruling re:  Plaintiff’s Motion to Compel Deposition

Tentative Ruling re:  Defendant’s Motion for Protective Order

            Plaintiffs move to compel the deposition of Thomas Safran (Safran), an officer and director of Defendant Thomas Safran & Associates, Inc. Defendants Strathern Park, L.P. and Thomas Safran & Associates, Inc. move for a protective order to prevent Safran’s deposition.  Plaintiffs’ motion to compel deposition is granted. Defendants’ motion for protective order is denied. The Court orders monetary sanctions against Defendants in the amount of $1,424.77.

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)

“For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation]. Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation] These rules are applied liberally in favor of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

On June 8, 2023, Plaintiffs served a Notice of Taking Deposition of Thomas Safran on Defendants, setting Safran’s deposition for July 20, 2023. (Belisle Decl. ¶ 2, Ex. A.) Defendants served their Objection to the Notice on June 29, 2023, objecting only on the grounds that the deposition was unilaterally noticed by Plaintiff without consulting Defendants’ availability, and that Defendants’ counsel was unavailable on the date and time scheduled.  (Belisle Decl. ¶ 3, Ex. B.)

            Defendants now oppose Plaintiff’s motion to compel Safran’s deposition on the basis that Safran is an apex witness. (See Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.) Defendants did not assert this objection in their initial response to the Notice, and so the objection is waived: “Any party served with a deposition notice . . . waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled...” (Code Civ. Proc., § 2025.410, subd. (a).)

  Even if not waived, Defendants have not submitted sufficient evidence in support of the apex witness designation.  The only evidence set forth are excerpts from the depositions of two of Thomas Safran & Associates’ employees, who state that they do not know what Safran’s role in the company is. (Mahbubani Decl. ¶¶ 3-5, Ex. A, Ex. B.) These statements do not provide any insight into what Safran’s role in the company is. (See Thomas v. Cate (E.D. Cal. 2010) 715 F.Supp.2d 1012, 1049 [“an official objecting to a deposition must first establish that she is sufficiently ‘high-ranking’ to invoke the deposition privilege”].)]

            Defendants’ motion for protective order is also untimely. “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (Code Civ. Proc., § 2025.420, subd. (a).) “[A]s to the timeliness of the motion for a protective order, the promptness of the request turns on the facts.” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 317.) Defendants did not promptly file their request for a protective order; Defendants filed their motion on July 21, 2023, over six weeks after service of the Notice, and three weeks after the deposition was scheduled to take place.

Accordingly, the motion to compel is granted. The motion for protective order is denied.

            If a motion to compel deposition 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.” (Code Civ. Proc. § 2025.450, subd. (g)(1).)

Because the motion to compel is granted, monetary sanctions against Defendants are warranted. Plaintiffs request monetary sanctions in the amount of $1,424.77, based on an hourly rate of $450, for 1 hour to draft the motion, 1 hour to prepare a reply, and 1 hour to appear at the hearing, plus fees of $74.77. The requested sanctions are granted.

Mr. Safran’s deposition is ordered to take place within ten (10) days of today’s date, notwithstanding the discovery cut-off.  Counsel to meet and confer to select a mutually convenient date.

Defendants and Defendants’ counsel are ordered to pay Plaintiffs’ counsel $1,424.77 within thirty (30) days of today’s date.