Judge David A. Hoffer, Case 30-2020-1137497 2022-10-24 Tentative Ruling

Judge: David A. Hoffer, Case: 30-2020-1137497, Date: 2022-10-24 Tentative Ruling

The Motion for an Order to Compel Defendant Golden Ticket Real Estate II, Inc., (PMK) to Appear for Their Deposition, etc., filed by Plaintiff Milton Crews Clark (“Plaintiff”) on 6/21/22, is GRANTED IN PART.

Plaintiff here seeks an order to compel Golden Ticket Real Estate II, Inc (“GTRE”) to appear for a person most knowledgeable (“PMK”) deposition. But the Motion reflects that objections to the 4/14/22 deposition notice were served on 4/1/22. (ROA 616, Naghash Decl. ¶ 6, Ex. H.) Some of those objections appear to have had merit. For example, that notice 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. (ROA 737, Baghdassarian Decl., at ¶¶ 7 and 8 and Ex. 5.) Instead, Plaintiff’s counsel just took the non-appearance on 4/14/22, sent a curt demand with a same-day deadline to respond, and then filed this Motion. (ROA 606, Naghash Decl., ¶ 22, and Ex. J.) Plaintiff’s efforts to meet and confer prior to the filing of this Motion were, thus, patently inadequate. In addition, although GTRE’s counsel made additional proposals for various dates after 4/14/22, Plaintiff evidently would not agree to any of them. (ROA 737, Baghdassarian Decl., at ¶¶ 10-14, Exs. 6-8.)

However, it is effectively undisputed that the deposition has been repeatedly requested, defense counsel concedes that it should proceed as to most of the stated PMK categories, and it was defense counsel that agreed to the 4/14/22 date but then made other commitments for that date – evidently without first communicating with Plaintiff’s counsel as to whether the PMK deposition would proceed on the previously agreed date. The Motion is therefore GRANTED IN PART to permit the PMK deposition to proceed on the stated categories, subject to the limitations set forth below. The Court will set an imminent date at the time of the hearing, with the deposition to proceed in accordance with C.C.P. § 2025.310(a). Counsel should be prepared to address any scheduling issues or other remaining logistical concerns regarding that deposition at the hearing.

As for the PMK categories noticed, there are only 5 for which the defense has declined to produce a witness – Nos. 18, 20, and 28-30. For those, the Motion is GRANTED IN PART, for Nos. 18, 20, 29 and 30, but DENIED for No. 28.

For No. 18, the category is overbroad, but a PMK is to be produced to address whether any of Mr. Delaney’s family members did any work for GTRE in connection with the marketing for or sale of Plaintiff’s home, and if so, what they did, and whether they were paid by GTRE for same. The Motion as to this category is thus GRANTED IN PART.

For No. 20, the category is overbroad, but a PMK is to be produced to identify whether any of Mr. Delaney’s family members are employed by or serve as officers, directors, or board members for GTRE. The Motion as to this category is thus GRANTED IN PART

For No. 28, the category is overbroad and seeks private financial information concerning both GTRE and third party individuals. The Motion has not shown why Plaintiff’s discovery interests in that information outweigh those privacy interests here. The Motion as to this category is thus DENIED.

For Nos. 29 and 30, a PMK is to be produced to identify the officers, directors, and shareholders of GTRE, what kind of entity it is, and who controls it. The Motion as to these categories is thus GRANTED IN PART.

With regard to the document requests included with the Notice, the Motion is DENIED. Plaintiff here also seeks an order to compel GTRE to comply with the request for production included in the deposition notice. However, objections were presented as to each such request. (ROA 616, Naghash Decl. ¶ 6, Ex. H.) Plaintiff must thus show good cause to compel responses thereto. (C.C.P. § 2025.410(b)(1).)

The Motion fails to address why good cause exists to require the production of the specific materials sought for any of the requests at issue. The Motion also omitted the required Separate Statement. (See C.R.C. 3.1345(a)(5).) Plaintiff did belatedly submit a Separate Statement on 9/16/22, along with an Amended Notice. But that Separate Statement fails to address why good cause exists to require the production of the specific materials sought. Nor has any actual evidence been presented to show that good cause exists to compel compliance as to all or any of those categories, as required by C.C.P. § 2025.450(b)(1). It also does not appear that Plaintiff made any attempt to meet and confer about the specific objections asserted for any of these categories before the Motion was filed (or for that matter, at any time thereafter). The Motion as to the document requests is therefore DENIED.

All requests for sanctions presented in connection with this Motion are DENIED. It appears 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, in favor of either side, appears unjust.

Counsel for Plaintiff is to give notice of this ruling.