Judge: Christopher K. Lui, Case: 19STCV24085, Date: 2022-08-23 Tentative Ruling

Case Number: 19STCV24085    Hearing Date: August 23, 2022    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.  Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.  If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

            This is an action for breach of a promissory note and guaranty thereof, including allegations of fraud in the inducement and fraudulent transfer.

            Defendants Raven Ridge Development, LLC, David Schuman and Richard Nielsen filed a Cross-Complaint alleging that Plaintiff has failed to pay Cross-Complainants their share of a Development Fee pursuant to an agreement whereby Cross-Defendants would provide funding, and Cross-Complainants would develop real properties.

Plaintiff/Cross-Defendant Monrovia Villas, LLC and Cross-Defendant David Zaslow moves for an order compelling Defendants David Schuman and Richard Nielsen to appear and testify at their respective noticed depositions.

TENTATIVE RULING

The hearing on Plaintiff/Cross-Defendant Monrovia Villas, LLC and Cross-Defendant David Zaslow’s motion to compel Defendants David Schuman and Richard Nielsen to appear and testify at their respective noticed depositions is CONTINUED to September 22, 2022 at 8:30 AM. 

Moving parties are to attempt to meet and confer with Defendants Schuman and Nielsen regarding re-setting their depositions. Moving parties are to file a meet and confer declaration by September 15, 2022. 

Because the Court could have denied this motion for failure to meet and confer or inquire about the non-appearance, no sanctions will be awarded even if the Court issues an order compelling depositions.

ANALYSIS

Motion For Order Compelling Depositions

Discussion

Plaintiff/Cross-Defendant Monrovia Villas, LLC and Cross-Defendant David Zaslow move for an order compelling Defendants David Schuman and Richard Nielsen to appear and testify at their respective noticed depositions, and request sanctions.

            CCP § 2025.450 provides in pertinent part:

(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410[1], 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.

(b) A motion under subdivision (a) shall comply with both of the following:

 (1) 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.

 (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

. . .

(g) 

 (1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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(a), (b), (g).)

The deposition subpoenas do not request production of documents, so moving parties need not demonstrate good cause for production. (See Declaration of Joshua M. Kimura, ¶¶ 3, 4; Exhs. A & B.) Neither Defendant served any objection, nor moved to quash or for a protective order. (Kimura Decl., ¶¶ 5, 6.) Neither appeared for his noticed deposition, and a record of their non-appearances were made. (Kimura Decl., ¶¶ 7, 8; Exhs. C 

However, the declaration of Joshua M. Kimura does not reflect that an attempt was made to meet and confer or to inquire about the nonappearance, as required by CCP § 2025.450(b)(2).

Accordingly, the hearing on the motion to compel depositions is CONTINUED to September 22, 2022 at 8:30 AM. Moving parties are to attempt to meet and confer with Defendants Schuman and Nielsen regarding re-setting their depositions. Moving parties are to file a meet and confer declaration by September 15, 2022. Because the Court could have denied this motion for failure to meet and confer or inquire about the non-appearance, no sanctions will be awarded even if the Court issues an order compelling depositions.