Judge: Craig Griffin, Case: "Green MEP Engineering Consulting v. Jamaleddin, et. al.", Date: 2023-07-24 Tentative Ruling
The motion by plaintiff Green MEP Engineering Consulting (“Green”) to compel defendant Accessible Consulting Engineering, Inc. (“ACE”) to produce its person most knowledgeable for deposition and to produce documents is GRANTED.
The subject motion is brought following the failure to appear at deposition by ACE. CCP §2025.450 authorizes a motion to compel attendance and production following a failure to appear.
Green submits evidence that the deposition notice was served on 1/19/23 for a deposition on 2/9/23 and a copy is attached as Exh. B. (Macaulay Decl. at ¶8) ACE did not serve objections to the form of the notice of deposition or the requests for production of documents. (Macaulay Decl. at ¶10) ACE argues in the Opposition that its 1/23/23 email constituted objections on the grounds that (1) the trade secret designation was insufficient, (2) they had a priority agreement which allowed ACE to take depositions first, and (3) Green’s written discovery responses were insufficient. (Opp. at 10:6-11; see, Exh. H to motion, pages 4-5) These were not proper objections to the notice, the PMK categories or to the document requests. Further, these same “objections” were the subject of the defendants’ Motion for Protective Order which was denied on May 15, 2023.
Green submits evidence that ACE refused to appear at the deposition. (Macaulay Decl. at ¶11) Section 2025.450(b)(2) provides that no meet and confer is required where a deponent “fails to attend the deposition and produce the documents ... described in the deposition notice.” In such cases, all that is required is a declaration by the moving party that he or she has contacted the deponent “to inquire about the nonappearance.” Green submits evidence that ACE “asserted that it would not appear for any deposition or produce documents and would not provide any alternative date to do so.” (Macaulay decl. at ¶11; see also 2/7/23 email exchange attached as Exh. 4 to the Opposition where counsel for ACE writes, “we don’t intend to produce any of the deponents pending the Court’s determination [of the Motion for Protective Order].” Based on the foregoing, Green has sufficiently complied with the requirement in §2025.450(b)(2).
CCP §2025.450(b) states that a motion to compel “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.” Attorney Noel Macaulay submits a declaration discussing the good cause for production of the documents. (Macaulay declaration at ¶¶5-7; 20-31) ACE does not contest good cause. Instead, ACE argues that the categories are improper because they request “documents that may be in the possession – or entirely generated by other parties – as if ACE were those parties.” (Opp. at 8:24-25) However, production is limited to documents that are “in the possession, custody or control of the party on whom the demand is made.” (CCP §2031.010(b).) If ACE is not in possession, custody or control of the requested documents then there will be nothing to produce. However, merely because a request asks for documents a person does not have is not a justification for failure to appear for deposition.
With regard to the PMK categories, ACE now argues that the categories are “overbroad.” CCP §2025.230 states that for a PMK deposition, the notice “shall describe with reasonable particularity the matters on which examination is requested.” The categories in the deposition notice meet this requirement.
ACE also argues that “Filing a Motion for Protective Order stays the taking of the depositions.” (Opp. at 2:22-23.) ACE cites CCP §2025.410(c) which states that “The taking of the deposition is stayed pending the determination of this motion.” However, ACE did not file its motion for protective order pursuant to §2025.410. Instead, ACE filed based on §2025.420. ACE did not assert that the deposition notice failed to comply with §2025.210 as required for a motion under §2025.410. Instead, Green argued that the deposition should be taken at a different time to resolve the issue of whether the trade secret designation complied with §2019.210. Unlike CCP §2025.410, §2025.420 does not contain a provision which automatically stays a deposition. While ACE could have made an ex parte application to shorten time on its motion, it opted not to. As a result, the deposition was not stayed.
Accordingly, the Motion is GRANTED and ACE is ordered to appear for deposition, and produce documents, pursuant to the deposition notice attached as Exhibit B to the Motion, within 30 days on a mutually agreeable date.
CCP §2025.450(g)(1) states that “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.”
ACE argues that because the Court found that ACE had substantial justification for filing the Motion for Protective Order, then it was also justified in opposing the subject motion. ACE is mistaken. Further, even if the deposition had been stayed by the filing of the motion, it has now been over two months since the Motion for Protective Order was denied and ACE has not offered any available dates to the plaintiff.
Although ACE may have had substantial justification for filing the Motion for Protective Order, it did not have a substantial justification for opposing the subject motion. As ACE conceded in her 4/6/23 email, “If the motions are denied, then they have to appear.” (Exh. 5 to Opp.) If ACE had attempted to complete the deposition during the past two months, then it may have had an argument that it had a substantial justification for opposing the request for sanctions. However, it did not.
Accordingly, the Court GRANTS the request for sanctions and awards a reduced amount of $4,935 in sanctions against defendant ACE and its attorney of record Amy Mousavi, jointly and severally, to be paid to Green, through its attorney of record, within 30 days.
The Request for Judicial Notice by ACE is GRANTED.
Counsel for moving party is ordered to give notice of this ruling.