Judge: Gary I. Micon, Case: 24CHCV01912, Date: 2024-12-05 Tentative Ruling

Case Number: 24CHCV01912    Hearing Date: December 5, 2024    Dept: F43

Dept. F43

Date: 12-05-2024

Case # 24CHCV01912, Nelson v. Morales, et al.

Trial Date: None set.

COMPEL DEPOSITION

MOVING PARTY: Plaintiff Samuel Nelson

RESPONDING PARTIES: Defendants Veronica Diaz and Diana Morales

RELIEF REQUESTED

Order compelling Defendants to appear and testify at deposition and to produce documents at deposition as specified in the deposition notice.  Monetary sanctions of $2,600.00. 

RULING: Motion is moot.

SUMMARY OF ACTION

Plaintiff Samuel Nelson (Plaintiff) filed this elder abuse action against defendants Veronica Diaz and Diana Morales (Defendants) alleging two causes of action for elder abuse and civil theft.  The complaint alleges that while Defendants served as Plaintiff’s caregivers, Defendants exerted undue influence over Plaintiff.  Defendants stole Plaintiff’s personal property, falsified their time sheets, compelled Plaintiff to pay the falsified amounts, and refused to correct their timesheets and return the stolen items. 

On June 14, 2024 and June 21, 2024, Plaintiff served notices of deposition on Defendants.  The depositions were scheduled for July 5, 2024 and July 12, 2024.  Defendants’ counsel stated he was unavailable for depositions until October 2024. 

Plaintiff filed this motion to compel depositions on July 26, 2024.  Plaintiff filed a supplemental motion and supporting declaration on November 21, 2024.  Defendants filed an opposition on November 25, 2024.  Plaintiff filed a reply that same day.

Meet and Confer

A motion to compel a deposition must include either a meet and confer declaration or, “when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, . . . a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., §§ 2025.450, subd. (b), 2016.040.)  

Plaintiff’s counsel of record, Margot Nelson, P.C., states she attempted to meet and confer with Defendant’s counsel, Joe L. Richardson.  (Declaration of Margot Nelson, P.C.)  On June 14, 2024, Ms. Nelson electronically served a Notice of Deposition of Diana Morales.  (Nelson Dec., Exh. C.)  The deposition was set for July 5, 2024.  (Nelson Dec., ¶ 2, Exh. A.)[1]  On June 21, 2024, Ms. Nelson electronically served a Notice of Deposition of Veronica Diaz.  (Nelson Dec., Exh. D.)  The deposition was set for July 12, 2024.  (Nelson Dec., ¶ 2, Exh. A.) Ms. Nelson asked Richardson to let her know if these dates were inconvenient.  (Ibid.)

On June 25, 2024, Mr. Richardson served an objection to the noticed deposition dates because Nelson did not first ascertain Morales and Diaz’s availability before setting the dates.  (Nelson Dec., Exhs., at pp. 17-24.)  On June 26, 2024, Nelson requested that Mr. Richardson and his co-counsel Roxanne M. Henry send her dates when both Morales and Diaz would be available for depositions within 10-20 days of the noticed dates.  (Nelson Dec., Exh. G.) 

On July 5, 2024, Ms. Nelson again requested that Richardson provide alternative dates for the depositions.  (Nelson Dec., Exh. H.)  Ms. Nelson stated if Mr. Richardson did not respond by the end of day on July 8, 2024, she would reset the depositions without his input and file a notice of nonappearance if the Defendants did not attend the depositions.  (Ibid.)  Ms. Nelson also emailed Mr. Richardson a meet and confer letter attempting to meet and confer and set new deposition dates.  (Nelson Dec., Exhs. J, K.)  Mr. Richardson replied that he was not available until October 2024.  (Nelson Dec., Exh. I.)  Ms. Nelson also served a notice of continuing the depositions: July 26, 2024 for Diana Morales and August 2, 2024 for Veronica Diaz.  (Nelson Dec., Exh. K.) 

On July 17, 2024, Mr. Richardson served objections to the continued deposition dates.  (Nelson Dec., Exhs., at pp. 38-45.)  Mr. Richardson reiterated that he was not available for depositions until October 2024.  (Nelson Dec., Exh. P.) 

On July 22, 2024, Ms. Nelson sent Mr. Richardson another meet and confer email requesting alternative deposition dates or that she would file a motion to compel.  (Nelson Dec., Exh. Q.) 

Summary of Arguments

Plaintiff’s counsel moves for an order compelling depositions and awarding sanctions because Defendants refused to cooperate and provide alternative dates for depositions.  Defendants’ counsel berated Plaintiff’s counsel through email and objected to the depositions on invalid bases.  In his supplemental papers, Plaintiff argues he is entitled to sanctions because Defendant Morales refused to be deposed on the requested documents or to the produce the requested documents. 

In opposition, Defendants argue this motion is moot because the parties already rescheduled the deposition dates.  Defendant Morales was deposed on November 15, 2024, and Defendant Diaz’s deposition will occur on December 6, 2024.  (Opposition, p. 2:7-8.)  The requested sanctions are unfounded because Plaintiff has not shown bad faith or misuse of the discovery process.  Rather, the Court should impose sanctions against Plaintiff for filing its supplemental motion and declaration because deposition dates have been set and Defendant Morales already attended her deposition.  Additionally, Plaintiff’s counsel’s representation of Plaintiff is inappropriate because she may be a material witness in this case.  Defendants do not address Plaintiff’s arguments about not producing documents. 

In reply, Plaintiff states the Court should not consider Defendants’ opposition because it was filed five days after the deadline to file oppositions.  Plaintiff also reiterates that the depositions have not been completed because Defendant Morales refused to be fully deposed or produce the requested documents during her November 15, 2024 deposition.  (Plaintiff’s Reply, p. 2:8-13.)  Regarding Defendants’ material witness argument, this argument is irrelevant to this motion and is improperly raised by Defendants.  (Id. at pp. 2:24-26, 3:1-2.)

ANALYSIS

An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.”  (Code Civ. Proc., § 2025.270, subd. (a).)  A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿ (Code Civ. Proc., § 2025.280, subd. (a).) 

“If, after service of a deposition notice, a party . . . 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 notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿ (Code Civ. Proc., § 2025.450, subd. (a).)¿ The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration.¿ (Code Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)¿

A motion to compel production of documents described in a deposition notice must attach declarations with facts showing “good cause” for inspecting the requested documents.  (Code Civ. Proc., § 2025.450, (b)(1).)  “Good cause” exists where the specific facts show the documents are necessary for the demanding party to prepare for trial and to prevent surprise.  (See Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 587.) 

As an initial matter, Plaintiff is correct that Defendants filed a late opposition.  (Code Civ. Proc., § 1005, subd. (b).)  Although “a trial court has broad discretion to accept or reject late-filed papers,” the late-filing party should seek leave to file their opposition late.  (See Rancho Mirage Country Club Homeowners Ass’n v. Hazelbaker (2016) 2 Cal.App.5th 252, 262; see also Cal. Rules of Court, rule 3.1300(d).)  Defendants do not show good cause for filing their opposition late, and the Court does not consider the opposition’s arguments. 

Plaintiff noticed Defendants of the depositions at least ten days before the deposition dates.  Plaintiff noticed Defendant Morales on June 14th for a July 5th deposition.  Plaintiff noticed Defendant Diaz on June 21st for a July 12th deposition.  Defense counsel objected to these dates and informed Plaintiff he was not available for depositions until October 2024.  Plaintiff continued suggesting dates prior to October 2024, and Defense counsel’s response remained the same.  After much discussion, the parties successfully rescheduled the depositions.  Morales’s deposition occurred on November 15, 2024.  (Supplemental Nelson Dec., ¶¶ 2, 4.)  Defendant Morales already attended her deposition.  Plaintiff does not dispute that the parties agreed on deposition date for Defendant Diaz.  Thus, this motion is moot. 

Plaintiff argues his discontent with Defendant Morales’s deposition in his supplemental moving papers filed November 21, 2024.  Plaintiff states Morales failed to produce the requested documents and refused to answer questions about the documents.  However, Plaintiff must file a separate motion to compel answers and production of documents under section 2025.480, subdivision (a).  (Code Civ. Proc., § 2025.480, subd. (a).)  Additionally, in order for the Court to properly rule on these issues, Plaintiff must “lodge” a certified copy of the relevant parts of the deposition transcript with the Court.  (Code Civ. Proc., § 2025.480, subd. (h).)  Plaintiff has not filed this paperwork.

Therefore, Plaintiff’s motion to compel depositions and production of documents is moot. 

            Sanctions

Plaintiff requests $2,000.00 in monetary sanctions. 

The court must impose monetary sanctions “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.”  (Code Civ. Proc., § 2025.450, subd. (g)(1).)  

As noted above, Defendants’ counsel consistently stated he was unavailable for depositions until October 2024.  Regardless, Plaintiff chose to proceed with this motion.  However, the parties were able to successfully schedule depositions, and the purpose of this motion is now moot.

Accordingly, the Court does not award sanctions for either party in this matter.

ORDER

Plaintiff’s motion to compel depositions and production of documents is moot. The Court does not award sanctions.

Moving party to give notice.