Judge: Elaine Lu, Case: 22STCV11468, Date: 2023-08-09 Tentative Ruling

Case Number: 22STCV11468    Hearing Date: January 17, 2024    Dept: 26

Motion to Compel Initial (Not Further) Responses to Discovery

Case Name & #:        22STCV11468__ Tibor v DeVito et al.

Plaintiff Joseph Field’s motion to compel the initial responses of Defendant Eugene Michael DeVito individually and as Trustee of the Dolores L. DeVito Trust to Plaintiff Joseph Field’s Request for Production, Set One is GRANTED.  All objections are deemed waived.  Defendant Eugene Michael DeVito individually and as Trustee of the Dolores L. DeVito Trust is ordered to serve verified, code compliant responses, without objections, to Plaintiff Joseph Field’s Requests for Production, Set One, within five (5) days and to produce all responsive documents within six (6) days of notice of this order.

On January 11, 2023, Defendant Eugene Michael DeVito individually and as Trustee of the Dolores L. DeVito Trust filed the declaration of Defense Counsel Stanley D. Bowman who provided proof of Defendant’s verified code compliant responses to Plaintiff Joseph Field’s Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Admission, Set One without objection and with proof of service.  (Bowman 1/11/24 Decl., Exhs. 1-3.)  Accordingly, Plaintiff Joseph Field’s motion to compel the initial responses of Defendant Eugene Michael DeVito individually and as Trustee of the Dolores L. DeVito Trust to Plaintiff Joseph Field’s Form Interrogatories, Set One is DENIED AS MOOT.

Plaintiff Joseph Field’s request for monetary sanctions is GRANTED.  Defendant Eugene Michael DeVito individually and as Trustee of the Dolores L. DeVito Trust is ordered to pay sanctions to Plaintiff Joseph Field, by and through counsel of record, in the amount of $920.30 within 30 days of notice of this order.

Plaintiff Joseph Field’s further request for non-monetary sanctions is denied.

As to the continued motion to deem requests for admission admitted, on January 11, 2023, Defendant Eugene Michael DeVito individually and as Trustee of the Dolores L. DeVito Trust filed the declaration of Defense Counsel Stanley D. Bowman who provided proof of Defendant’s verified, code compliant responses to Plaintiff Joseph Field’s Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Admission, Set One without objection and with proof of service.  (Bowman 1/11/24 Decl., Exhs. 1-3.)  Accordingly, as verified, code complaint responses without objection have been provided to the Requests for Admission, Set One, Plaintiff Joseph Field’s motion to deem these admissions admitted is DENIED.

As Plaintiff Joseph Field failed to request sanctions in the notice for the motion to deem admitted, the Court cannot award any sanctions for this motion.  (CCP § 2023.040, [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”].)

Moving party to give notice.

Superior Court of
California

County of Los Angeles

Department 26

Procedural Background

            On April 4, 2022, Plaintiffs
Elizabeth Tibor (“Tibor”) and Joseph Fields (“Fields”) (jointly “Plaintiffs”)
filed the instant action against Defendant Eugene Michael DeVito individually
and as Trustee of the Dolores L. DeVito Trust (“Defendant”) arising out of Defendant’s
eviction of Plaintiffs.  The complaint
asserts eleven causes of action for (1) Tenant Harassment, (2) Willful
Interruption of Services, (3) Assault, (4) Assault, (5) Battery, (6) Battery,
(7) Intentional Infliction of Emotional Distress, (8) Intentional Infliction of
Emotional Distress, (9) Stalking, (10) Illegal Eviction, (11) Breach of the
Covenant of Quiet Enjoyment, and (12) Negligence.  On November 2, 2023, the Court granted
terminating sanctions against Defendant in favor of Plaintiff Tibor.  (Order 11/2/23.)

            On January 2, 2024, Plaintiff Fields
filed the instant motion to compel Defendant’s deposition.  On January 5, 2024, the Court advanced the
instant motion to January 17, 2024. 
(Minute Order 1/5/24.)  On January
12, 2024, Defendant filed a declaration in opposition.  Later the same day, Plaintiff Fields filed a
reply.

Legal
Standard

“Any party may obtain discovery . . . by
taking in California the oral deposition of any person, including any party to
the action.  The person deposed may be a
natural person, an organization such as a public or private corporation, a
partnership, an association, or a governmental agency.”  (CCP § 2025.010.) 

Code of Civil Procedure § 2025.450(a)
provides: “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 proceed with it, 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.” 

Code of Civil Procedure § 2025.450(b)
provides: “A motion under subdivision (a) shall comply with both of the
following: 

1. The
   motion shall set forth specific facts showing good cause justifying the
   production for inspection of any document, electronically stored
   information, or tangible thing described in the deposition notice. 

2. The
   motion shall be accompanied by a meet and confer
   declaration under Section 2016.040, or, when the deponent fails to attend
   the deposition and produce the documents, electronically stored
   information, or things described in the deposition notice, by a declaration
   stating that the petitioner has contacted the deponent to inquire about
   the nonappearance.” 

Code of Civil Procedure § 2025.450(c)
provides, “(1) If a motion under subdivision (a) is granted, the court shall
impose a monetary sanction . . . 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.” 

Under Code of Civil Procedure §
2023.030(a), “[t]he court may impose a monetary sanction ordering that one
engaging in the misuse of the discovery process, or any attorney advising that
conduct, or both pay the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct. . . . If a monetary
sanction is authorized by any provision of this title, the court shall impose
that sanction 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.”  Failing to respond or to submit to
an authorized method of discovery is a misuse of the discovery process. 
(CCP § 2023.010(d).) 

Discussion

            Plaintiff Fields seeks to compel
Defendant’s deposition. 

            On June 1, 2023, Plaintiffs took
Defendant’s deposition, and the parties agreed to continue the deposition on a
later date.  (Sitzer Decl. ¶ 7, Exh. 7.)  On December 8, 2023, Plaintiff Fields timely served a
notice of deposition on Defendant set for a remote deposition on December 22,
2023 a 10:00 am.  (Sitzer Decl. ¶¶ 1-2,
Exhs. 1-2; CCP § 2025.270(a).)  On
December 13, 2023, Defense Counsel informed Plaintiffs’ Counsel that he was
unavailable on December 22, 2023 for the deposition as he was in trial and
would need to reschedule and offered January 5, 11, and 15, 2024.  (Sitzer Decl. ¶ 4, Exh. 4.)  However, the parties were unable to reach an
agreement as to when Defendant’s deposition could be taken, and Plaintiff
repeatedly noted that the deposition would go forward as scheduled on December
22, 2023.  (Sitzer Decl. ¶ 4, Exh.
4.) 

            On
December 22, 2023, Defendant failed to appear for the noticed deposition.  (Sitzer Decl. ¶ 3, Exh. 3.)  Later the same day, Plaintiff Fields sent a
meet and confer letter regarding Defendant’s failure to appear at deposition
and requesting to meet and confer before filing the instant motion.  (Sitzer Decl. ¶ 5, Exh. 5.) 

            In opposition, Defendant contends that the notice is
invalid because Plaintiffs already took Defendants deposition, and Code of
Civil Procedure section 2025.290 prevents a further deposition without further
order of the court.  This contention is without
merit. Code of Civil Procedure section 2025.290 merely limits the time of a
deposition of an individual witness to seven hours.  (CCP § 2025.290(a).)  Moreover, Defendant waived any objection to
the deposition notice.  (CCP § 2025.410,
[“Any party served with a deposition notice that does not comply with Article
2 (commencing with Section 2025.210) waives any error or irregularity
unless that party promptly serves a written objection specifying that error or
irregularity at least three calendar days prior to the date for which the
deposition is scheduled, on the party seeking to take the deposition and any
other attorney or party on whom the deposition notice was served.”].) 

            Accordingly, Defendant fails to set
forth any basis for why the instant motion should be denied.  Therefore, Plaintiff Fields’s motion to
compel Defendant’s deposition is GRANTED.

Sanctions

            Plaintiff Fields seeks monetary
sanctions of $1,236.65 against Defendant and Defense Counsel.  Plaintiff Fields further seeks terminating
sanctions.

            If a motion to compel deposition “is granted, the court shall impose a monetary sanction . . . 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.” 
(CCP § 2025.450(g)(1), [italics added].) 
Thus, sanctions are mandatory unless circumstances make the imposition
of sanctions unjust. 

Here, the requested sanctions are slightly excessive in light of the
simplicity of the instant motion. 
Accordingly, given the totality of the circumstances the Court finds
sanctions of $600.00 are warranted.  As
to the request for terminating sanctions, terminating sanctions are only
warranted if Defendant fails to comply with the order compelling his
deposition.  (CCP § 2025.450(h), [“If
that party or party-affiliated deponent then fails to obey an order compelling
attendance, testimony, and production, the court may make those orders that are
just, including the imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Chapter 7 (commencing with Section 2023.010) against
that party deponent or against the party with whom the deponent is affiliated.”].)  Moreover, “two facts are generally
prerequisite to the imposition of a nonmonetary sanction. There must be a
failure to comply with a court order and the failure must be willful.”  (Lee v. Lee (2009) 175
Cal.App.4th 1553, 1559.)  Plaintiff
Fields has not set forth any basis to support this repeated request for
terminating sanctions. 

CONCLUSIONS AND
ORDER

            Based on the foregoing, Plaintiff Joseph
Fields’s motion to compel Defendant Eugune Michael DeVito’s deposition is GRANTED.  Defendant Eugene Michael DeVito is ordered to
appear for a deposition, remotely or with any other necessary precautions,
within ten (10) days of notice of this order at a date and time noticed by Plaintiff.

Plaintiff’s request for sanctions is
GRANTED AS MODIFIED.

Defendant Eugene Michael DeVito
individually and as Trustee of the Dolores L. DeVito Trust and his attorneys of
record, Stanley D. Bowman, jointly and severally, are ordered to pay sanctions
to Plaintiff Joseph Fields, by and through counsel of record, in the amount of
$600.00, within 30 days of notice of this order.

In preparation for the upcoming final
status conference, the parties are order to joint versions of the following
trial preparation documents:

(1)  A
joint statement signed by all parties that identifies which cause(s) of action
and claim(s) of each of the operative complaint and what affirmative defenses
or other issues are equitable in nature. 

(2)  A
joint exhibit list identifying the universe of all non-impeachment exhibits
that all parties wish to introduce at trial.  The revised joint exhibit
list must have columns reflecting: “Exhibit #,” “Description,”
"Admissibility stipulated?," "Authenticity stipulated?"
"Offered by?" "Objections," "Date Identified,"
and "Date Admitted.”  All columns except for the last two columns
must be fully completed for each exhibit listed.

(3)  A joint witness list
identifying the universe of all non-impeachment witnesses that all parties wish
to call at trial with columns for time estimates for "direct
examination," "cross examination," "redirect," and
"total," fully completed for each witness, and a grand total for all
witnesses’ testimony at the bottom.

(4)  A
joint statement of the case to be read to the jury.  If the parties cannot
agree on a joint statement, the Court will likely not read a statement of the
case to the jury.  Instead, the Court will likely allow the parties to
each make a 3-minute mini opening statement in lieu of the Court reading a
statement of the case.

(5)  A
joint list of proposed jury instructions (joint and contested) organized in
CACI numerical order with 5 columns labeled: “CACI #,” “Title,” “Proposed By,”
“Objections By,” and “Given.”  If all parties agree on an instruction,
indicate “joint” in the “Proposed By” column, and leave the “Objections By”
column blank.  Otherwise, indicate the party proposing the instruction in
the “Proposed By” column and the party objecting to the instruction in the
“Objections By” column.  Leave the “Given” column blank for the Court to
indicate whether the instruction was given.

(6)  A
joint, complete set of full-text proposed jury instructions, editing all
proposed CACI, inserting party name(s) and all other information, filling in
all blanks, and eliminating all brackets and irrelevant bracketed
language.  The parties/counsel shall prepare special instructions in a
format ready for submission to the jury with the instruction number, title, and
text only.  All agreed upon instructions should be up front in CACI
numeric order.  Disputed instructions should follow.  The jury
instructions should be separated into three stacks with a colored sheet of
paper between each stack: (1) joint instructions, (2) Plaintiff’s proposed
instructions to which Defendant objects, and (3) Defendant’s proposed
instructions to which Plaintiff objects.  If the parties agree that an
instruction should be given but disagree on portions of the language
within the instruction, they should include this instruction in the “joint
instructions” (stack (1)) and demarcate the disputed language by placing it in
brackets and by using bold, italicized, and underlined text to highlight the
disputed portion of the instruction.

(7)  With
regard to any non-CACI jury instructions that the parties are each proposing,
the parties are to prepare a joint statement/chart that identifies for each
such instruction: (1) the special instruction number (i.e. “Plaintiff’s special
instruction #1”), (2) the title, (3) any CACI instruction that covers this
subject or a related topic and that might render this special instruction
duplicative or unnecessary, (4) any other reason(s) for the opposing party’s
objection to this special instruction, (5) any reason(s) why the party
proposing this special instruction believes that any related CACI
instruction(s) do not adequately address this subject.

(8)  One
joint verdict form.  If the parties cannot agree on a joint special
verdict form, the parties must submit a joint general verdict form.  If
the parties disagree on specific questions or language within the verdict form,
they should include all language proposed by any party and demarcate the
disputed language by placing it in brackets and using bold, italicized, and
underlined text to highlight the disputed portion(s) of the verdict form.

(9)  A
jointly proposed juror questionnaire to supplement the Court’s and parties’
oral questions during jury selection.  The parties may contact the
Judicial Assistant for Department 26 to request a sample juror questionnaire to
be used during voir dire.  The parties should meet and confer to each
suggest one substantive question to add to the juror questionnaire.

(10)                
Page and line designations for deposition
and former testimony that any party will seek to admit at trial in lieu of live
testimony.  Any party proposing the page and line designations must
 contact this Department’s Judicial Assistant to obtain a template that
shows the Court’s preferred format for page and line designations.

Plaintiff is to given notice and file
proof of service of such.

DATED:
January ___, 2024                                                   ___________________________

                                                                                          Elaine
Lu

                                                                                          Judge
of the Superior Court