Judge Jill Feeney, Case Number: 22STCV33566, Date: 2023-08-08 Tentative Ruling

PLAINITFFS’ MOTION FOR A PROTECTIVE ORDER; DEFENDANTS’ MOTION TO COMPEL DEPOSITION OF PLAINTIFF DAVID SAVARINO; DEFENDANTS’ MOTION TO COMPEL PLAINTIFF LONDON CARRIER’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION

This is an action for violation of the Investigative Consumer Reporting Agencies Act (“ICRAA”), Unfair Business Practices, Invasion of Privacy, and Declaratory Relief. The Complaint alleges as follows.

Defendant Solari Enterprises, Inc. (“Solari”) owns and operates the Courson Arts Colony Apartments (the “Subject Property”) located at 931 and 939 E. Avenue Q12, Palmdale, California. (Compl. ¶ 7.) Plaintiffs Melinda Alippi, Stacy Stidham, Juan Velasco, Liza Brown, Caniesha Ruth, London Carrier, David Savarino, and Leonard Merriweather applied to be tenants at the Subject property. (Compl., ¶8.)

Solari requested and procured investigative consumer reports on Plaintiff without providing proper disclosures and without obtaining proper authorizations contrary to the ICRAA. (Compl. ¶ 9.)

On July 12, 2023, 2023, Defendants Solari and Jean Philippe (“Moving Defendants”) filed a Motion to Compel Plaintiff London Carrier’s Further Response to Request for Production pursuant to a deposition notice.

This motion is denied as moot. The Court declines to impose sanctions since after the IDC on June 23, 2023, where Plaintiff agreed to produce the medical records, on July 5, 2023, Carrier’s counsel informed Moving Defendants’ counsel that he requested the records from Plaintiff’s medical provider. (Murphy Decl., ¶4.) On July 19, 2023, Carrier received the medical records and immediately sent them to Moving Defendants’ counsel. (Id., ¶6.) Under these circumstances, the Court declines to impose sanctions.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A party desiring to take an oral deposition shall give a notice in writing which states the specification of reasonably particularly of any materials to be produced by the deponent. (Code Civ. Proc., § 2025.220, subd. (a)(4).) A properly served deposition notice is effective to require a party to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).)

“If, after service of a deposition notice, a party to the action … without having served a valid objection … 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 Civ. Proc., § 2025.450, subd. (a).)

Moving Defendants allege that Savarino’s original deposition on July 10, 2023 ended early just 30 minutes into the deposition because Savarino was having internet connectivity issues. (Kulikov Decl., ¶3.) Savarino lost connection throughout the deposition and other participants could not hear Savarino’s responses to deposition questions. (Id., ¶¶4-5.0 Moving Defendants’ counsel suspended the deposition due to these technology issues. (Id., ¶3.)

In opposition, Savarino’s counsel testifies that on July 12, 19, and 24, 2023, he emailed Moving Defendants’ counsel agreeing to an in-person deposition and proposing dates. (Murphy Decl., ¶7.) However, this agreement was after the date by which Defendants had to file their motion. Moreover, Plaintiff’s counsel was warned by the Court at the IDC that if the deposition did not go smoothly (and there was reason to believe that it would not), Plaintiff would have to appear for deposition in person and Plaintiff would have to bear the costs of the second scheduled deposition. Plaintiff’s Counsel failed to take the steps necessary to ensure that Plaintiff Savarino could meaningfully participate in a remote deposition.

The motion is granted. Plaintiff is ordered to appear for deposition within two days after the date of this order. Plaintiff is ordered to bear the cost of the court reporter and videographer in connection with this deposition. Sanctions in the amount of $1,175 are imposed jointly and severally on Plaintiff and Plaintiff’s Counsel of Record. Sanctions are payable within five days after the date of this order.

Plaintiffs move for a protective order quashing the demand for exchange of expert witnesses dated May 30, 2023 served by Solari and Jean Philippe on the grounds that it was not timely served. Plaintiffs also move to strike Defendant’s expert witness testimony on the grounds that Solari and Jean Philippe failed to comply with the expert exchange requirements of Code Civ. Proc., sections 2034.260 and 234.280.

Plaintiffs’ counsel testifies that on May 30, 2023, Defendants Solari and Jean Philippe served a demand for exchange of expert witness information. (Murphy Decl., ¶2.) Plaintiffs’ counsel sent meet and confer letters to Solari and Jean Philippe’s counsel pointing out that the Court did not reopen discovery when it continued trial on May 22, 2023. (Id., ¶4.)

The May 22, 2023 minute order shows that trial was continued to August 14, 2023. At that time, it was the Court’s intention that discovery and cutoff dates were to be based on the new trial date. However, the Court did fail to explicitly state, according to the minutes, that discovery and motion cutoff dates were continued. However, this was clearly the Court’s intention as multiple IDCs have been held in the case following the continuation of the trial date.