Judge Cynthia A Freeland, Case 37-2023-00024754-CU-FR-NC 2023-10-24 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00024754-CU-FR-NC, Date: 2023-10-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 05, 2023

10/06/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Fraud Motion Hearing (Civil) 37-2023-00024754-CU-FR-NC SCHOENFELD VS DOHERTY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Notice of Motion and Supporting Declarations, 09/07/2023

Plaintiff Richard B. Schoenfeld ('Plaintiff')'s motion to compel Defendant Nicole Doherty ('Defendant') to appear at her deposition and produce the documents specified in the deposition notice, and for sanctions, is granted.

California Code of Civil Procedure ('CCP') § 485.230 provides that '[w]here a right to attach order has been issued by the court, a plaintiff may discover, through any means provided for by, and subject to the protections included in, Title 4 (commencing with Section 2016.010) of Part 4, the identity, location, and value of property in which the defendant has an interest.' Cal. Code Civ. P. § 485.230. Additionally, CCP § 2025.010 authorizes a party to obtain discovery by way of a deposition of any person, including any party to the action. See Cal. Code Civ. P. § 2025.010. Proper service of a deposition notice 'is effective to require any deponent who is a party to the action . . . to attend and to testify . . . .' Cal. Code Civ. P. § 2025.280(a). 'If, after service of a deposition notice, a party to the action . . . without having served a valid objection under Section 2025.410, fails to appear for examination . . . or to produce for inspection any document . . . 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 . . . described in the deposition notice.' Cal. Code Civ. P. § 2025.450(a). The propounding party must 'set forth specific facts showing good cause justifying the production for inspection of any document . . .

described in the deposition notice.' Cal. Code Civ. P. § 2025.450(b)(1). 'To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.' Digital Music News LLC v. Sup. Ct. (2014) 226 Cal. App. 4th 216, 224. If the propounding party establishes good cause, the burden shifts to the deponent to justify its objections. See Kirkland v. Sup. Ct. (2002) 95 Cal. App. 4th 92, 98; Coy v. Sup. Ct. (1962) 58 Cal. 2d 210, 220-221.

The court construes Defendant's lack of opposition as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the uncontroverted evidence establishes that on June 12, 2023, Plaintiff commenced this action by filing a Complaint against Defendant and others. See ROA No. 1. On June 20, 2023, the court issued a right to attach order, an order for issuance of writ of attachment, and a temporary protective order. See ROA Nos. 19-21. On June 26, 2023, Plaintiff personally served Defendant with the summons, Complaint, and TPO. See Kirk Decl., Ex. A. On August 15, 2023, Plaintiff electronically served Defendant with a Notice of Taking Deposition of Defendant Andrea Doherty Pursuant to CCP § 485.230 and Demand for Production of Documents (the 'Notice of Deposition'), noticing Defendant's deposition for August 30, 2023. Ibid., Ex. B. Defendant did not object to the Notice of Deposition or appear at her deposition with the requested documents. The foregoing Calendar No.: Event ID: TENTATIVE RULINGS

3017591 CASE NUMBER: CASE TITLE: SCHOENFELD VS DOHERTY [IMAGED] 37-2023-00024754-CU-FR-NC constitutes grounds to grant the motion.

The court may award sanctions to the party seeking to compel discovery even though no opposition to the motion was filed. See Cal. R. Ct. 3.1348(a). In addition, the court must impose monetary sanctions '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.' Cal. Code Civ. P. § 2025.450(g)(1). Monetary sanctions are also appropriate for misuses of the discovery process including, but not limited to, failing to respond or to submit to an authorized method of discovery. See Cal. Code Civ. P. §§ 2023.010(d), 2023.030(a). The party opposing sanctions bears the burden of proving that he or she acted with substantial justification in failing to comply with a discovery request. See Doe v. U.S.

Swimming, Inc. (2011) 200 Cal. App. 4th 1424, 1435 (citing Cal. Evid. Code §§ 500 and 550; Kohan v. Cohan (1991) 229 Cal. App. 3d 967, 971). Substantial justification means justification that is clearly reasonable because it is well grounded in both law and fact. See Doe, 200 Cal. App. 4th at 1434 (citing Nader Automotive Group, LLC v. New Motor Vehicle Bd. (2009) 178 Cal. App. 4th 1478, 1480). In this case, Defendant, by failing to oppose the motion, has not met her burden of demonstrating that she was substantially justified in failing to attend her duly noticed depositions or that other circumstances render the imposition of sanctions unjust.

In light of the foregoing, the court grants the motion and: (1) directs Defendant to attend her deposition and produce the documents identified in the Notice of Deposition at a date/time/place within ten (10) days of this hearing, and (2) awards Plaintiff $1,932.50 in sanctions (which omits unnecessary fees anticipated to prepare for and attend the hearing on this unopposed motion) against Defendant, due within thirty (30) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, October 6, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 6, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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