Judge: Gregory Keosian, Case: 19STCV24054, Date: 2023-02-02 Tentative Ruling
Case Number: 19STCV24054 Hearing Date: February 2, 2023 Dept: 61
Defendant
and Cross-Complainant Precision Dental, Inc.’s Motions to Compel Responses to
Form Interrogatories and Requests for Production, Set Two, from Defendant and
Cross-Complainant Jarrel D. Davis are GRANTED. Sanctions are awarded against
Davis in the amount of $1,245.
Plaintiff
Cedric L. Price’s Motions to Compel Deposition of Defendant Jarrel D. Davis,
individually and as trustee for PDP Properties Trust, V2 Properties Trust, and
Kay Housing Commission Trust, and to Compel Responses to Special Interrogatories,
Requests for Production, Form Interrogatories, and to Deem Matters Admitted
against Defendant Jarrell D. Davis, are GRANTED. Sanctions are awarded against
Davis in the amount of $11,150.
Plaintiff to give notice.
I.
MOTION TO
COMPEL & DEEM ADMITTED
A propounding party may demand a responding
party to produce documents that are in their possession, custody or control.
(Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by
propounding interrogatories to another party to be answered under oath. (Code
Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the
production demand either by complying, by representing that the party lacks the
ability to comply, or by objecting to the demand. (Code Civ. Proc., §
2031.210.) The responding party must respond to the interrogatories by
answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the
responding party fails to serve timely responses, the propounding party may
move for an order compelling responses to the production demand and
interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)
A
party who fails to serve a timely response to interrogatories or a demand for
inspection waives any objection to the demand. (Code Civ. Proc., §§ 2030.290,
2031.300.)
Likewise,
“[a]ny party may obtain discovery . . . by a written request that any other
party to the action admit the genuineness of specified documents, or the truth
of specified matters of fact, opinion relating to fact, or application of law
to fact. A request for admission may relate to a matter that is in controversy
between the parties.” (Code Civ. Proc., § 2033.010.) If a party fails to serve a timely response to requests for
admissions, “[t]he requesting party may move for an order that the genuineness
of any documents and the truth of any matters specified in the requests be
deemed admitted, as well as for a monetary sanction” (Code Civ. Proc., §
2033.280 subd. (b).)
A
party who fails to timely respond to requests for admission waives all
objections to the requests. (Code Civ. Proc. § 2033.280, subd. (a).)
Defendant and
Cross-Complainant Precision Dental, Inc. moves to compel responses from
Defendant Jarrell D. Davis (Davis) to Requests for Production and Form
Interrogatories, Set Two. These discovery requests were propounded on Davis on
February 8, 2022, and one extension was granted so responses were due by March
28. (Vaqar Decl. ¶¶ 2–4.) No responses have been served. (Vaqar Decl. ¶ 5.)
Accordingly, if Davis does not serve responses by the date of hearing on these
motions, they shall be GRANTED.
Plaintiff Cedric
Price (Price) moves to compel responses to Special Interrogatories, Set Two,
Requests for Production, Set Four, and Form Interrogatories, Set Three, also
from Davis, as well as to deem matters admitted against him. The discovery was
served on May 26, 2022, and responses were due by June 30, 2022. (Mulkerin Decl.
¶¶ 3–5.) But despite several attempts to obtain responses by meet-and-confer,
no responses have been received. (Mulkerin Decl. ¶ 11.) Thus if no responses
are served by the date of hearing on these motions, they shall be GRANTED.
The
prevailing party on a motion to compel is generally entitled to monetary
sanctions, 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. §§ 2030.290, 2031.300.) Sanctions are
also mandatory against a party whose failure to serve responses to requests for
admission makes the motion necessary. (Code Civ. Proc. § 2033.280, subd. (c).)
Precision
Dental seeks $1,185.00 in connection with each motion, representing five hours
of attorney work on each motion at $225 per hour, plus a $60 filing fee,
leaving a total sanctions request of $2,370.00. (Vaqar Decl. ¶ 7.) As this
request includes four hours ($900) spent reviewing non-existent oppositions,
and a duplicative charge ($225) for attending hearing on these motions, the
maximum sanctions award for Precision Dental is $1,245.00.
Sanctions
are awarded against Davis in favor of Precision Dental in the amount of $1,245.
Price
seeks a total of $8,000.00 in sanctions, representing a total of 20 hours of
attorney work at $400 per hour. (Mulkerin Decl. ¶ 12.) This includes five hours
and $1,500.00 spent reviewing and responding to oppositions that were never
filed, leading to a maximum sanctions award of $6,500.00.
Sanctions
are awarded against Davis in favor of Price in the amount of $6,500.
II.
MOTION TO COMPEL DEPOSITION
A party may make a
motion compelling a witness’s deposition “after service of a deposition notice”
if that witness “fails to appear for examination, or to proceed with it.” (Code
Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer
declaration and show good cause for the discovery sought. (Code Civ. Proc. §
2025.450, subd. (b)(1), (2).)
Defendant Davis’s
depositions were scheduled to take place on October 25 and 26, 2022, both in
his individual capacity and as the trustee for PDP Properties Trust, V2
Properties Trust, and Kay Housing Commission Trust. (Mulkerin Decl. ¶¶ 3, 8.)
These depositions had been rescheduled from a prior August 9, 2022 deposition
date, which Davis notified Plaintiff he could not attend the day before the
deposition was scheduled to take place. (Mulkerin Decl. ¶ 7.) Although Davis
has stated that he was available for deposition the week of October 24 in an
email of August 2022, he told Plaintiff’s counsel on October 21 that he would
not be attending deposition because “the week of 10/24 doesn’t work.” (Mulkerin
Decl. ¶¶ 7, 10–11; Exhs. 5, 10.)
Plaintiff proposed a stipulation in which Davis would agree to a future
concrete deposition date upon penalty of court sanction, but Davis did not sign
the stipulation, and did not appear for deposition. (Mulkerin Decl. ¶¶ 15–17;
Exh. 10.)
Plaintiff has shown that an order compelling deposition is
needed. Plaintiff has twice secured deposition dates meeting Defendant’s own
specifications, and has twice found Defendant unwilling to follow through.
Plaintiff even embraced Defendant’s final proposal for a December deposition
date, pursuant to a stipulation of sanctions in the event of non-appearance, to
which Defendant failed to agree. Accordingly, the motion to compel is GRANTED.
If a motion to
compel deposition is granted, the party making the motion is entitled to
monetary sanctions against the opposing party, unless the opposing party acted
with substantial justification, or other circumstances make a sanctions order
unjust. (Code Civ. Proc. § 2025.450, subd. (g)(1).)
Plaintiff here seeks
$2,400 in attorney fees (eight hours at $400 per hour) plus $2,750.00 in court
reporter fees for the failure to appear for deposition on two dates in October.
(Mulkerin Decl. ¶¶ 23–24.) As these sanctions include 1.25 hours ($500) to
respond to an opposition that was never filed, the maximum sanctions award for
this motion is $1,900 in attorney fees and $2,750.00 in reporter fees. The
court awards sanctions against Davis in the amount of $4,650.