Judge: David A. Hoffer, Case: 30-2020-1137497, Date: 2022-09-12 Tentative Ruling

The Motion to Compel Defendant David Michael Delaney to Appear for his Deposition, etc., filed by Plaintiff Milton Crews Clark (“Plaintiff”) is GRANTED IN PART.

As a preliminary matter, the Motion contains procedural defects. The Notice fails to comply with C.R.C 3.110(a), as it does not state the nature of the order sought and the grounds for same – instead it refers to a desired deposition for an individual evidently unrelated to this action. It also appears to have been improperly served by facsimile in violation of C.C.P. § 1013.  However, as the nature of the relief requested is apparent from the supporting brief and a substantive Opposition has been submitted, the Court has considered the motion on the merits despite these defects.

The Court also notes that the Opposition was not timely filed and was sufficiently late as to have effectively deprived Plaintiff of an opportunity to reply. If Plaintiff requests an opportunity to respond thereto, the Court will continue the hearing to allow for a brief opportunity to present a substantive reply. However, as the Court is inclined to order the deposition of Mr. Delaney to now be set, despite consideration of the Opposition papers, Plaintiff will need to inform the Court if additional time to file a reply is nonetheless desired.

On the merits, the Notice seems to reflect that Plaintiff seeks not just an order to compel Delaney to appear for deposition, but also to compel compliance with the request for production included in the deposition notice. However, the Motion then fails to address any of the requests at issue, even though objections were presented as to each such request. (Naghash Decl. ¶ 18, Ex. G.)   It thus fails to demonstrate good cause for each or any of those requests. (See C.C.P. § 2025.450(a) and (b)(1).)  It also fails to include the required Separate Statement.  (See CRC 3.1345(a)(5).) The Motion as to the document requests, to the extent Plaintiff even intended to seek relief related thereto, is therefore DENIED.

However, the Motion is GRANTED as to the request to compel the oral deposition of Delaney.  The Motion reflects that objections to the 4/7/22 deposition were served. (Naghash Decl., ¶ 18, and Ex. G.)  Although the Motion does not adequately address them, some of those objections appear to have had merit. Service of the notice of deposition was evidently faxed and thus defective. (Id. at Ex. F.) That notice also required an in-person deposition, without regard to the requirements of C.C.P. § 2025.310(a).  The parties might have resolved those objections through a meaningful meet and confer, as defense counsel had concurrently proposed other dates to proceed. (Id.) Instead, Plaintiff’s counsel took the non-appearance on 4/7/22, sent a curt demand with a same-day deadline to respond, and filed this Motion. (Id. at Ex. H; see also ROA 608.)  Efforts to meet and confer prior to the filing of this Motion were thus inadequate. 

Further efforts to resolve the dispute were made while the Motion was pending, including participation in an IDC.  But, while the parties agreed that the Delaney deposition should be scheduled, no agreement was reached on a date.  The defense asserts that no new date was requested, while Plaintiff appears to have demanded a specific date, and then failed to discuss alternative dates.

In any event, it is effectively undisputed that the deposition has been repeatedly requested, that the parties agree it should proceed, and what remains in dispute is apparently just the setting of a date. The Court will therefore GRANT the Motion in part, despite some defects therein, to set an imminent date at the time of the hearing. Counsel should be prepared to address any scheduling issues or other remaining logistical concerns regarding that deposition at the hearing.

All requests for sanctions presented in connection with this Motion are DENIED.  It appears to the Court that both sides are in part at fault for the delay in setting the deposition and that both sides failed to adequately confer to attempt to resolve the matters in dispute, both before and after the filing of the Motion. Under these circumstances, imposition of sanctions on this Motion appears unjust.

The sanctions request which was first addressed on 4/18/22, and continued for decision here, is also DENIED.  Despite the Court’s conclusions on the merits on 4/18/22, in light of the subsequent history in this case, it appears to the Court that imposition of additional sanctions under the circumstances would be unjust.

Counsel for Plaintiff is ordered to give notice of this ruling.