Judge: Gary Y. Tanaka, Case: 20TRCV00471, Date: 2022-10-04 Tentative Ruling
Case Number: 20TRCV00471 Hearing Date: October 4, 2022 Dept: B
LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Tuesday, October 4, 2022
Department B Calendar No. 3
PROCEEDINGS
Christopher Leach, et al. v. Kenton Lane, et al.
20TRCV00471
Christopher Leach, et al.’s Motion to Compel Depositions of Kenton Lane, et seq.
Kenton Lane’s Motion to Compel Further Deposition of Dr. Christopher Leach
TENTATIVE RULING
Christopher Leach, et al.’s Motion to Compel Depositions of Kenton Lane, Terrence Theobald, and Maureen Theobald is denied without prejudice.
Kenton Lane’s Motion to Compel Further Deposition of Dr. Christopher Leach is denied without prejudice.
Background
Plaintiffs filed their Complaint on July 6, 2020. Plaintiffs allege the following facts. Defendant Kenton Lane became a tenant in Plaintiff’s home. Defendant Lane is a marriage and family therapist. Defendant Lane provided therapy services to Plaintiffs. However, Defendant Lane breached his fiduciary duties and was negligent in the services provided to Plaintiffs which resulted in Defendants selling their home. Defendants Terrence Theobald and Maureen Theobald are the landlords of the real property which was rented by Plaintiff Leach after the Plaintiffs sold their home. Defendant Lane was also an occupant on the rented property. Defendants Theobald improperly terminated the tenancy. In addition, the property suffered from habitability issues. Plaintiffs allege the following causes of action: 1. Professional Negligence; 2. Breach of Fiduciary Duty; 3. Breach of Oral Contract; 4. Negligent Infliction of Emotional Distress; 6. Premises Liability; 6. Negligent Infliction of Emotional Distress; 7. Harassment.
Christopher Leach, et al.’s Motion to Compel Depositions
The party noticing the deposition may move for an order compelling appearance at the deposition and production of documents, pursuant to the deposition notice, from the party deponent who fails to appear or produce materials requested in the deposition notice, and who has not served a valid objection under § 2025.410(a). CCP § 2025.450(a).
“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.” CCP § 2025.450(b)(2).
Meet and Confer
Plaintiff failed to set forth a meet and confer declaration in compliance with CCP § 2025.450(b)(2) and CCP § 2016.040. The declaration of Blake S. Slater is devoid of any facts to show that moving party contacted the deponents and inquired about their non-appearances.
Motion to Compel Depositions and for Sanctions
Plaintiffs move to compel the depositions of Kenton Lane, Terrence Theobald, and Maureen Theobald on the ground that Defendants failed to appear for their noticed depositions on multiple occasions. Plaintiffs also seek sanctions against Defendants in the sum of $2,550.00.
Based on the inadequate showing of an attempt to meet and confer in compliance with CCP § 2025.450, the motion to compel depositions is denied. The Court notes, however, that according to the opposition filed by Kenton Lane, his deposition was set to go forward on September 30, 2022. The Court notes that Defendants Terrence Theobald and Maureen Theobald did not file any written opposition. It is unclear if their depositions are currently scheduled.
Thus, Plaintiffs’ motion to compel depositions of Kenton Lane, Terrence, Theobald, and Maureen Theobald, and request for sanctions is denied.
Kenton Lane’s Motion to Compel Further Deposition of Dr. Christopher Leach
Defendant moves for an order compelling another deposition of Dr. Christopher Leach, for an order sanctioning Plaintiff’s counsel, and for an order that Plaintiff’s counsel refrain from conduct interfering with the deposition. This motion is made pursuant to Code of Civil Procedure §§ 2023.010 and 2023.030. No other statutory authority was presented by moving party.
Code Civ. Proc., § 2023.010 states:
“Misuses of the discovery process include, but are not limited to, the following:
(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.
(b) Using a discovery method in a manner that does not comply with its specified procedures.
(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.
(d) Failing to respond or to submit to an authorized method of discovery.
(e) Making, without substantial justification, an unmeritorious objection to discovery.
(f) Making an evasive response to discovery.
(g) Disobeying a court order to provide discovery.
(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.
(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.”
Code Civ. Proc., § 2023.030 states:
“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:
(a) The 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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. 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.
(b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.
(c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.
(d) The court may impose a terminating sanction by one of the following orders:
(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.
(2) An order staying further proceedings by that party until an order for discovery is obeyed.
(3) An order dismissing the action, or any part of the action, of that party.
(4) An order rendering a judgment by default against that party.
(e) The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court.
(f)(1) Notwithstanding subdivision (a), or any other section of this title, absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.
(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.”
As readily apparent by the language of the above statutes, these statutes merely set forth what acts may constitute sanctionable conduct (CCP § 2023.010), and the types of sanctions that can be imposed (CCP § 2023.030). However, the first sentence of Section 2023.030 makes clear that the types of sanctions that are imposed are related to a violation of another provision of the Discovery Act. “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process ....” CCP § 2023.030. Here, Defendant failed to move under a chapter governing a particular discovery method that would authorize the order to compel another deposition of Dr. Christopher Leach. While the Discovery Act does contain a statutory mechanism for the scenario provided by moving party (i.e., the alleged conduct of Plaintiff’s counsel which led to the deponent refusing to or unable to answer questions), Plaintiff did not move under that statute or comply with the procedural requirements that coincide with that statute.
Thus, the motion to compel another deposition of Dr. Christopher Leach, as well as the other requested orders sought by moving party, is denied without prejudice.
Plaintiffs are ordered to give notice of the Court’s ruling.