Judge: Curtis A. Kin, Case: 19STCV43434, Date: 2023-02-16 Tentative Ruling
Case Number: 19STCV43434 Hearing Date: February 16, 2023 Dept: 72
MOTION FOR MONETARY SANCTIONS
Date: 2/16/23
(8:30 AM)
Case: Ragnarok Game, LLC v. Nine
Realms, Inc. et al. (19STCV43434)
TENTATIVE RULING:
Defendants Bethesda Softworks LLC, ZeniMax Media Inc., and
Roundhouse Studios LLC’s Motion for Monetary Sanctions is DENIED.
This motion concerns the deposition of cross-defendant
Matthew Candler. Defendants Bethesda Softworks LLC, ZeniMax Media Inc., and
Roundhouse Studios LLC (collectively “ZeniMax Defendants”) move for monetary
sanctions in the amount of $8,459.34 against plaintiffs Ragnarok Game, LLC and
ESDFOS, LLC, Candler, and Ellis George Cipollone O’Brien Annaguey LLP (“Ellis
George”), jointly and severally.
The ZeniMax Defendants contend that Candler previously
agreed to sit for “one long day” of deposition on November 2, 2022, and
possibly one more day of deposition on November 3, 2022. (Naydonov Decl. ¶ 4
& Ex. A at 98:10-19.) On November 2, the videographer had to leave at 6:01
p.m. because he had to pick up his children. (Naydonov Decl. ¶ 6.) At defending
counsel’s direction, Candler left with one hour left of his personal deposition,
even though a replacement videographer was on the way to the deposition. (Naydonov
Decl. ¶ 6.) Defending counsel also refused to make Candler available for
deposition as ESDFOS, LLC’s Person Most Knowledge on November 3 on the ground
that Candler had meetings and defending counsel had to return to his office in
Dallas. (Naydonov Decl. ¶ 5 & Ex. B at 319:11-320:3.) The ZeniMax
Defendants contend that they unnecessarily incurred hotel-related expenses
related to the November 3 deposition that did not occur. (Samet Decl. ¶ 5 &
Ex. B.)
The ZeniMax Defendants argue they are entitled to monetary
sanctions under CCP § 2023.030. While
CCP § 2023.010(d) includes “failing to respond or to submit to an authorized
method of discovery” as an example of a “misuse of the discovery process” and
CCP § 2023.030(a) allows the Court to impose monetary sanctions against
anyone engaging in a misuse of the discovery process,” the power to impose
monetary sanctions is limited to “the extent authorized by the chapter
governing any particular discovery method.” (CCP § 2023.030(a).)
CCP § 2025.450, which governs a motion to compel attendance
at deposition, only allows for the imposition of monetary sanctions when a
motion to compel the deponent’s attendance and testimony is granted. (CCP §
2025.450(a), (g).) Undeniably, there was no motion to compel the deposition of
Candler. Indeed, Candler’s deposition was eventually completed on November 14,
2022. (Farrelly Decl. ¶¶ 16, 17.)
The Court agrees with the Court of Appeal’s holding in City
of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466 (“PWC”)
that “monetary discovery sanctions may be imposed under section 2023.030 only
to the extent authorized by another provision of the Discovery Act…. The plain
language of the statutory scheme does not provide for monetary sanctions to be
imposed based solely on the definitional provisions of sections 2023.010 or
2023.030, whether construed separately or together.” (PWC, 84
Cal.App.5th at 475.)
The partial dissent in PWC characterizes the “[t]o
the extent authorized by the chapter governing any particular discovery method”
language in CCP § 2023.030 as referring to “the type of sanction that may be
imposed, and not to the procedural requirements contained in the statutes
governing particular discovery methods.” (PWC, 84 Cal.App.5th at 528; see
also London v. Dri-Honing Corp. (2004) 117 Cal.App.4th 999, 1005 [“A
better reading is that this language simply refers to whether a particular
discovery method statute authorizes a specific type of sanction (i.e.,
monetary, issue, evidence, terminating, or contempt sanctions)”].) The Court is not persuaded by that reading of
the statutory scheme.
“Generally, it can be presumed that when the Legislature has
enacted a specific statute to deal with a particular matter, it would intend
the specific statute to control over more general provisions of law that might
otherwise apply.” (Arbuckle-College City Fire Protection Dist. v. County of
Colusa (2003) 105 Cal.App.4th 1155, 1166.) Thus, here, the specific
provisions of CCP § 2025.450 should govern whether monetary sanctions
should be imposed in connection with a party’s abuse of the discovery process
in connection with a deposition. As the majority in PWC stated, “[i]f
the Legislature intended for the court to impose sanctions for misuse of the
discovery process based directly on the provisions of section 2023.010, they
knew how to write section 2023.010 to authorize sanctions under section
2023.030.” (PWC, 84 Cal.App.5th at 500.)
This Court recognizes the California Supreme Court has
granted review of PWC, but this Court is free to cite the decision for
its persuasive value and to establish the existence of a conflict in authority,
which allows a trial court such as this one to choose sides in the conflict. (City
of Los Angeles v. PricewaterhouseCoopers (Cal. 2023) 303 Cal.Rptr.3d 669.)
For the reasons stated above, the Court rules in accordance with PWC
majority opinion.
In any event, even if this Court were incorrect about its
statutory authority to impose monetary sanctions under CCP §§ 2023.010 and/or 2023.030, the Court would decline to do so on the
ground that Candler and defending counsel acted with substantial justification.
(See CCP § 2023.030(a) [“If a monetary sanction is authorized by
any provision of this title, the court shall impose that sanction unless it
finds that the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction unjust”].)
With respect to November 2, the ZeniMax Defendants do not
dispute defending counsel’s declaration that he offered to let the ZeniMax
Defendants continue the deposition with the court reporter, rather than wait
for the replacement videographer. (Arledge Decl. ¶ 10.) The ZeniMax Defendants
refused the offer. (Arledge Decl. ¶ 10.) Under the circumstances, the Court
finds defending counsel was substantially justified in refusing to allow the
deposition to proceed after such reasonable offer was declined. The deposition could have gone forward and
been fully documented and transcribed by the court reporter. Insofar as the ZeniMax defendants believed a
videorecording was of paramount importance to proceed, as the deposing parties,
the ZeniMax Defendants were responsible for ensuring that the videographer was
available to stay for the entire deposition. Given that the deposition had
started at 9:22 a.m. (Arledge Decl. ¶ 5 & Ex. 1 at 6), counsel for the
ZeniMax defendants had all day to communicate the intention potentially to
extend the deposition past 6:00 p.m. and make videographer arrangements
accordingly. Candler and defending
counsel were thus substantially justified in declining to wait around for a replacement
videographer for an uncertain period of time after the ZeniMax Defendants
refused the reasonable offer to continue the deposition with a court reporter.
Finally, even assuming,
arguendo, that Candler and defending counsel did not act with
substantial justification, the requested monetary sanctions for hotel expenses
and motion fees and costs expended in pursuit of those hotel expenses is not
warranted. The ZeniMax Defendants
planned to depose Candler for a “long day” on November 2, with the
understanding that such deposition might potentially extend to November 3.
(Naydonov Decl. ¶ 4 & Ex. A at 98:23-24; see also Reply at 8:18-21 [“All
the parties, including Mr. Candler, thus understood that a ‘long, full day’ on
November 2, 2022 meant that Mr. Candler’s deposition would end past 6:25 p.m....)
Accordingly, irrespective of whether Candler’s deposition had continued on and
been completed after 6:25 p.m. on November 2 or had resumed the following day
on November 3, the ZeniMax Defendants
would have incurred hotel costs on November 2. The November 2 hotel costs
cannot be attributed to defending counsel’s refusal to produce Candler for
deposition on November 3. Indeed, it appears
counsel for the ZeniMax Defendants incurred an additional night of hotel
expenses on November 3, suggesting the November 2 hotel stay was not caused by
Candler and defending counsel’s decision to end the deposition on November 2. (See Samet Decl. ¶ 5 & Ex.
B [Virgin Hotels Las Vegas Bill for 10/31/22 through 11/3/22].)
For all the
foregoing reasons, the motion is DENIED.