Judge Daniel M. Crowley, Case 22SMCV01666 2023-03-27 Tentative Ruling

Judge: Daniel M. Crowley, Case: 22SMCV01666, Date: 2023-03-27 Tentative Ruling

Case Number: 22SMCV01666 Hearing Date: March 27, 2023 Dept: 207

Background

Plaintiff Blue Lake Capital LLC (“Plaintiff”) brings this action against Defendant Amanda Moore (“Defendant”) stemming from her prior employment as Plaintiff’s Director of Business Development. Plaintiff alleges Defendant disregarded her employment obligations with Plaintiff to work on personal matters and her own business. On October 28, 2022, Plaintiff served Defendant with a notice of deposition set for November 7. Defendant did not appear for the November 7 deposition, and Plaintiff now moves for the imposition of monetary sanctions against Defendant based on her failure to appear. Defendant opposes Plaintiff’s motion.

Legal Standard

California Code of Civil Procedure section 2023.030 states the following, in relevant part: “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” California Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) [f]ailing to respond or to submit to an authorized method of discovery.”

Analysis

Plaintiff seeks an award of $11,000.85 in monetary sanctions for Defendant’s failure to appear at a November 7, 2022, deposition pursuant to a notice of deposition served by Plaintiff. Plaintiff claims such sanctions are permitted under Code Civ. Proc. §§ 2023.010(d), 2023.030(a), 2025.450(a), and 2025.450(g)(1). Code Civ. Proc. § 2025.450(a) does not allow for the imposition of sanctions against a non-appearing party. Rather, it provides that “the party giving the notice may move for an order compelling the deponent’s attendance and testimony.” Section 2025.450(g)(1) allows for an award of monetary sanctions where a party successfully moves to compel attendance and testimony under section 2025.450(a). Plaintiff here has not filed a motion to compel Defendant’s appearance and testimony at deposition, and thus neither section supports Plaintiff’s request for monetary sanctions.

Section 2023.030(a) allows for the imposition of monetary sanctions against any party engaging in a misuse of the discovery process. Section 2023.010(d) defines the misuse of discovery to include the failure to respond or submit to an authorized form of discovery. Under section 2023.030(a), the Court is directed to impose such monetary sanctions “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.”

The Court finds ample circumstances here make the imposition of an $11,000 sanction against Defendant unjust. Defendant has submitted a declaration swearing under penalty of perjury that on October 27, 2022, the day before the operative deposition notice was served, she was undergoing a surgical procedure to remove a mass of tissue from her lower abdomen which left her bedridden and on painkillers for two weeks. Plaintiff does not dispute these assertions, but nonetheless claims the Court should sanction Defendant $11,000 because she did not respond to emails and correspondence sent between October 28 and November 7, 2022, including a November 5 email asking her to confirm she would be appearing at the deposition. However, it is undisputed that during this time period, Defendant was bedridden and on painkillers as she recovered from her surgery. The Court also notes at that point in time Defendant had not yet filed an Answer or otherwise appeared in this action, and it appears she was not yet represented by counsel. Plaintiff also complains that Defendant was not responsive to its communications in September or October 2022, but this fact has no relevance to her failure to appear for the November 7 deposition pursuant to the October 28 notice served by Plaintiff.

On such facts, the Court finds the imposition of a monetary sanction against Plaintiff would be unjust. Plaintiff’s motion is thus DENIED.

While the Court has denied Plaintiff’s motion, it notes several irregularities in Defendant’s filings in opposition to the motion. On March 10, 2023, Defendant filed two materially different versions of her opposition, along with three versions of her own declaration. Two of those declarations appear to be identical copies of each other, while the third was substantially similar to the other two with some further additions. Defendant offered no explanation or justification for these multiple filings. In the future, the Court will disregard such multiple filings. If a document is filed in error and Defendant wishes to instead timely file a superseding version of the document, Defendant must file a notice of errata or other explanation which will allow the Court to determine which documents it should consider in making its ruling.

Conclusion

Plaintiff’s motion for the imposition of monetary sanctions against Defendant is DENIED.