Judge: Craig Griffin, Case: "Green MEP Engineering Consulting v. Jamaleddin, et. al.", Date: 2023-08-14 Tentative Ruling

Before the Court are two motions by plaintiff Green MEP Engineering Consulting (“Green”) to compel the depositions of the defendants.  The first motion seeks to compel the deposition of the person most knowledgeable for Datum Design Group (“Datum”) and to produce documents.  The second motion seeks to compel the deposition of Accessible Consulting Engineering, Inc.’s (“ACE”) employee, Armin Khakpour.  Both motions are GRANTED.

The subject motions are brought following the deponents’ failure to appear at deposition.  CCP §2025.450 authorizes a motion to compel attendance and production following a failure to appear. Because the motions are similar in many respects, and because the separate “non-oppositions” filed by the defendants are nearly identical, the two motions are discussed together.

Green establishes that on 1/19/23, it served a Notice of Deposition of Persons Most Qualified from Datum Design Group as to the matters specified, accompanied by requests for production of documents thereat which was noticed for February 8, 2023. (Datum Mtn - Macaulay Decl. at ¶7; Exh A)  Green also establishes that on the same date, it served a Notice of Deposition of Armin Khakpour, an employee of ACE, along with a request to produce the documents, which was set for February 13, 2023.  (Khakpour Mtn-Macaulay Decl. at ¶12; Exh B)  The defendants did not serve objections to the notices of deposition and did not appear for the depositions.  (Datum Mtn-Macaulay Decl. at ¶9-10 and Khakpour Mtn-Macaulay Decl at ¶¶13-14) 

CCP §2025.450 states 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, 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.

The defendants do not dispute that the deponents are required to appear for deposition.  The defendants do not dispute the propriety of the PMK categories in connection with the Datum motion or that the categories are described with sufficient particularity. (CCP §2025.230) 

The defendants do not dispute that there was a sufficient meet and confer as required by CCP §2025.450(b)(2).  Nonetheless, the Court has reviewed the evidence submitted by the moving party in connection with the meet and confer and finds that it was sufficient.

Attorney Noel Macaulay submits a declaration discussing the good cause for production of the documents.  (Datum Mtn - Macaulay declaration at ¶¶5-6 and 19-31; Khakpour Mtn-Macaulay Decl at 5-11 and 22-38)  Good cause is also discussed at length in both the separate statement and motion.  Datum does not submit evidence showing there is not good cause for any particular request.  The Court finds that there is sufficient good cause for the production of documents pursuant to CCP §2025.450(b)(1).

The defendants do not dispute that they failed to timely serve objections to the notices of deposition pursuant to CCP §2025.410 but nonetheless assert in their “non-oppositions” that they are still entitled to object to the document requests. 

CCP §2025.410(a) states: 

“Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) 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, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”

The defendants interpret §2025.410’s reference to waiving any “error or irregularity” in the “deposition notice” as only applying to the oral deposition portion of the notice and not to the request for production portion.  (Opp at 12:12-13)  Defendants cites no authority for this argument and their interpretation is contrary to a plain reading of the discovery statute.  CCP §2025.410 states that it applies to any “deposition notice.”  CCP §2025.220 describes the 8 requirements for the contents of the “deposition notice.”  The first three requirements are the name of deponent, address of deposition and date of deposition.  The fourth requirement is “the specification with reasonable particularity” of any documents to be produced by the deponent.  (CCP §2025.220(a)(4).)  The waiver referred to in §2025.410 applies to not only an “error or irregularity” in the name, location or date of the deposition but also to the categories of documents requested.  Accordingly, by failing to timely object to any irregularity in the document requests, the defendants have waived any objections thereto.

Defendants also assert that the deposition document requests are improper because they are seeking the same information already asked for from ACE, Din and Nami.  Defendants also assert that the plaintiff knows the deponents do not have responsive documents.  Neither of these arguments relieve the deponents of their obligation to comply with the discovery statute. 

Additionally, the defendants’ reference to Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282 for the proposition that they can still assert objections based on privilege is misplaced.   That is not the holding of the case.  First, Datum has offered no evidence of a privilege that exists which would justify an objection, and which is not covered by the stipulated protective order found at ROA 180.  Second, the issue in Monarch Healthcare was whether a non-party could simply object to the production of documents in response to a subpoena, or if it had waived objections by failing to file a motion to quash. Third, in Monarch Healthcare the non-party actually objected to the production of documents prior to the deposition and that never occurred in the instant action.

Finally, defendants argue that they should be granted relief from the waiver pursuant to CCP §474(b).  The §473(b) request is not properly raised as such a request should be brought as a regularly noticed motion.  Also, since Defendants suggest relief should be granted because of attorney fault and no attorney declaration regarding fault has been filed, there is no basis for the motion. 

Accordingly, the motions are both GRANTED.  Datum is ordered to produce its PMK for deposition, and produce documents without objection, pursuant to the deposition notice attached as Exhibit A to the Datum motion, within 30 days on a mutually agreeable date.  Khakpour is order to appear for his deposition, and produce documents without objection, pursuant to the deposition notice attached as Exhibit B to the Khakpour 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.”

The Court GRANTS the request for sanctions and awards a reduced amount of sanctions for each of the motions.  In connection with the Datum motion, the Court orders Datum, and its attorney of record Amy Mousavi, jointly and severally, to pay reduced sanctions of $2,860 to Green, through its attorney of record, within 30 days.  In connection with the Khakpour motion, the Court orders ACE, and its attorney of record Amy Mousavi, jointly and severally, to pay reduced sanctions of $2,860 to Green, through its attorney of record, within 30 days.

Counsel for moving party is ordered to give notice of this ruling.