Judge Daniel M. Crowley, Case Number: 23STCV09556, Date: 2024-06-03 Tentative Ruling

Defendant Cuningham Group Architecture, Inc.’s unopposed motion to compel Non-party Hunt Construction Group, Inc. to comply with a deposition subpoena for the production of business records is granted.

Defendant’s request for sanctions against Non-party Hunt Construction Group, Inc. is granted in the reduced amount of $787.50.

Defendant Cuningham Group Architecture, Inc. (“Cuningham”) (“Defendant”) moves unopposed for this Court to compel Non-party Hunt Construction Group, Inc. (“Hunt”) to comply with its Deposition Subpoena for Production of Business Records on the grounds Hunt has failed to provide any objection or response to Cuningham’s Deposition Subpoena for Production of Business Records, and despite Cuningham’s inquiries and attempts to meet and confer regarding the nonresponse, has failed to properly engage in the meet and confer process in order to achieve a resolution without the Court’s intervention. (Notice of Motion, pgs. 1-2; C.C.P. §§1987 et seq., 1985.3, 2023 et seq., 2024.240, 2025.480(b).) Cuningham requests sanctions against Hunt in the amount of $2,012.50. (Notice of Motion, pg. 2.)

This matter arises from alleged increases in construction costs and delays during the design and construction of the Pendry Hotel and Residences in West Hollywood, California (“Project”). Plaintiff Sunset Subsidiary, LLC (“Plaintiff”), is the owner and developer of the Project. Defendant was the architect for the Project. Non-party Hunt was the general contractor for the Project.

On December 22, 2023, Cuningham served a Deposition Subpoena for Business Records (“Subpoena”) on Hunt’s registered agent for service of process at CT Corporation. (Decl. of Lee ¶3.) The subpoena sought documents from Hunt relating to the construction change orders and delays allegedly caused by Cuningham. (Decl. of Lee ¶3.)

The subpoenaed records were to be produced no later than January 16, 2024. (Decl. of Lee ¶4.) However, Hunt neither objected to nor produced any documents in response to the subpoena. (Decl. of Lee ¶4.) To date, there has been no production of documents. (Decl. of Lee ¶4.)

A deposition subpoena for business records directs a nonparty’s “custodian of records” to deliver a copy of the requested documents to a deposition officer or to make the original documents available to the subpoenaing party for inspection and copying. (C.C.P. §§2020.410(c), 2020.430(a)-(e).)

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (C.C.P. §2025.480(a).) When there is no record of the deposition and no response has been served, the time limitations for filing a motion to compel have not begun to run. (Cf. Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.)

Here, Hunt has failed to provide any response to the subpoena or produce any of the requested documents. Therefore, Cuningham’s motion to compel compliance with its deposition subpoena to Hunt is granted.

C.C.P. §§2023, et seq. authorizes this Court to impose monetary sanctions for “misuse of the discovery process.” Misuse of the discovery process includes “[f]ailing to respond or submit to an authorized method of discovery.” (C.C.P. §2023.010(d). In addition, C.C.P. §2023.050 states that “a court shall impose a one-thousand-dollar ($1,000) sanction, payable to the requesting party,” if the court finds that a person did not respond in good faith to a request for production of documents, or if the person failed to confer with the party or attorney requesting the documents in a reasonable and good faith attempt to informally resolve any dispute concerning the request.”

Here, Hunt failed to respond to the subpoena, an authorized method of discovery under C.C.P. §§2020.010 and 2020.410. Hunt also failed to meet and confer with Cuningham’s counsel, despite multiple attempts by Cuningham’s counsel to do.

Hunt was personally served with the motion. (California Rules of Court, rule 3.1346.)

Cuningham’s counsel declares it incurred $1,012.50 in drafting, replying to, and attending the hearing on this Motion. Cuningham further requests that the Court impose the additional $1,000 sanction provided under C.C.P. §2023.050 for Hunt’s failure to respond in good faith to the request for production of documents and the failure to meet and confer with Cuningham’s counsel, for combined monetary sanctions of $2,012.50 against Hunt.

The Court is not inclined to grant additional sanctions beyond the costs reasonably incurred by Cuningham to prepare and file the instant motion. Such costs do not include anticipated attorneys’ fees. In light of the fact the instant motion is unopposed, the Court calculates sanctions as follows:

Accordingly, the Court grants Cuningham’s request for sanctions in the reduced total amount of $787.50.

Defendant’s unopposed motion to compel Hunt to comply with Defendant’s Deposition Subpoena for Production of Business Records is granted. Hunt is to produce the requested documents within 20 days.

Defendant’s request for sanctions against Hunt is granted in the reduced amount of $787.50. Sanctions are payable within 20 days.

Hon. Daniel M. Crowley

Judge of the Superior Court