Judge: Gary Y. Tanaka, Case: 21TRCV00527, Date: 2023-02-27 Tentative Ruling

Case Number: 21TRCV00527    Hearing Date: February 27, 2023    Dept: B

LOS ANGLES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                     Monday, February 27, 2023
Department B                                                                                                                              Calendar No. 8

PROCEEDINGS

Ella Sims v. Purnell Williams, et al.

21TRCV00527

1.      Ella Sims’ Motion to Compel Production of Documents, to Compel Attendance at Deposition and to Produce Identified Documents, and Request for Sanctions  

TENTATIVE RULING

Ella Sims’ Motion to Compel Production of Documents, to Compel Attendance at Deposition and to Produce Identified Documents, and Request for Sanctions is moot, in part, and granted, in part.

Background

            Plaintiff filed the Complaint on July 21, 2021.  Plaintiff alleges the following facts.  The action involves the parties’ purchase of real property located at 10203 South Dixon Avenue, Inglewood, CA 90303.  The subject purchase was intended by Plaintiff and Defendant Williams to be a joint investment.  Plaintiff would live in Unit #2 of the Property and Defendant Williams would live in Unit #3.  In April 2013, Defendant Williams requested that Plaintiff temporarily deed her interest in the Property to Defendant Williams for the purpose of enabling Defendant Williams to refinance the Property.  Defendant Williams agreed to refinance the Property in his own name alone but would later reconvey to Plaintiff her interest in the property.  Defendant never reconveyed Plaintiff’s interest.  Plaintiff alleges the following causes of action: 1. Declaratory Relief; 2. Quiet Title; 3. Breach of Contract - Specific Performance; 4. Breach of Fiduciary Duty; 5. Constructive Trust; 6. Accounting; 7. Fraud; 8. IIED.  

            Motion to Compel

            CCP § 2031.300 states: “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: The party making the demand may move for an order compelling response to the demand.”  (CCP § 2031.300(b)).

            A party responding to an inspection demand shall respond to each demand with one of the following:  a statement the party will comply with the demand, a representation the party lacks the ability to comply with the demand, or an objection.  (Code Civ. Proc., § 2031.210, subd. (a).)  A response to an inspection demand may be inadequate because it is evasive or incomplete; contains an incomplete statement of compliance; an inadequate, incomplete, or evasive representation of inability to comply; or meritless or overly general objections to a demand.  (Code Civ. Proc., § 2031.310, subd. (a).)

            If a demanding party believes the responding party responded inadequately, the demanding party may move for an order compelling further response.  (Code Civ. Proc., § 2031.310, subd. (a).)  “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”  (Code Civ. Proc., § 2031.310, subd. (c).)

            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 set forth a meet and confer declaration in compliance with CCP § 2025.450(b)(2), CCP § 2031.310(b), and CCP § 2016.040.  (Decl., Mark J. Sarni, ¶¶ 7-28.)

            Motion to Compel Further Responses to Request for Production of Documents and for Sanctions

            Plaintiff’s motion to compel further responses is moot.  Defendant served further responses, including further document production, on February 8, 2023.  (Decl., Matthew C. Chen, ¶ 9.)  Propriety of the further responses is not at issue in this motion.  If the further responses are deficient, the proper procedure is to fully meet and confer on the propriety of the further responses before resorting to motion practice.  The Court urges the parties to meet and confer to avoid any need for further judicial intervention.  The request for sanctions will be addressed below.

            Motion to Compel Deposition and for Sanctions

            Plaintiff moves for an order compelling Defendant Purnell Williams to attend his deposition, provide testimony, and produce documents pursuant to the deposition notice.  The motion is made on the ground that deponent has refused to appear for his deposition and failed to produce documents pursuant to the deposition notice.  Plaintiff also seeks sanctions against deponent and his counsel of record.

            Defendant filed a written opposition contending that he has made dates available to moving party and, thus, no motion should have been required.  Nevertheless, there is no showing that a valid objection was served to the deposition notice.  The parties should have been able to obtain a date amenable to both sides for the deposition.  However, since the deposition has not yet taken place and there is no dispute that Defendant did not appear for his properly noticed deposition, Plaintiff’s motion to compel deposition and to produce documents is granted.  Defendant Purnell Williams is ordered to appear for his properly noticed deposition and to produce documents at a reasonable date and time to be determined by moving Defendant. The request for sanctions will be addressed below.

            Finally, the Court notes that contrary to Defendant’s argument, there is no specific authority which mandates that a moving party must file two separate motions rather than one motion addressing both discovery disputes.

            Sanctions

            Plaintiff’s request for monetary sanctions is granted.  Further responses to the request for production of documents were only served after the motion was filed.  Cal. Rules of Court, Rule 3.1348(a).  No sanctions are awarded with respect to the deposition portion of this motion.

            Sanctions are awarded in favor of Plaintiff and against Defendant and Defendant’s counsel in the total amount of $1,810.00.  The hourly rate sought of $350 is a reasonable rate.  The time allotted for preparation and appearance was 5 hours.  Plaintiff is awarded $60 in filing fees. Sanctions are payable within 30 days of this date.

            Plaintiff is ordered to give notice of this ruling.