Judge John C. Gastelum, Case 18-01037445 2022-08-09 Tentative Ruling

Judge: John C. Gastelum, Case: 18-01037445, Date: 2022-08-09 Tentative Ruling

Motion to Compel Deposition (Oral or Written)

Tentative Ruling: Plaintiffs Kimberly Moffatt Jones (“Jones”) and 150 Newport Center Drive, LLC (“150 Newport Center”) (collectively “Plaintiffs”) “Motion to Compel Competent Testimony” from Defendant Newport Center Anacapa Associates, LLC (“NCAA”)’s Person(s) Most Qualified is DENIED in its entirety as follows.

Initially, the Court notes no proof of service is attached to the opposing papers or separately filed. However, opposing papers were timely filed on July 27, 2022, and Plaintiffs have timely filed and served a reply on merits, which does not raise any service issue such that the opposing papers appear to have been served and no prejudice appears.

“A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) California Rules of Court (“CRC”), Rule 3.1113(b) provides, “[t]he memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, case, and textbooks cited in support of the position advanced.” Failure to include points and authorities supporting each ground for the motion may be treated as an admission that the motion is not meritorious, and as ground to deny it. (California Rules of Court, Rule 3.1113(a); see Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [trial court was justified in denying post-trial motions for failure to provide adequate memorandum; “Rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party’s theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide.”].)

Here, Plaintiffs purport to seek “the competent testimony of PMQ witness or witnesses for NCAA,” as a result of the purported failure of Mr. Ridgeway to prepare for the deposition as NCAA’s PMQ.

In support of this request to “compel competent testimony,” Plaintiffs cite Code of Civil Procedure section 2025.230 and Code of Civil Procedure section 2025(o) as authority for the Court’s ability to order an answer be given on the resumption of a deposition.

Code of Civil Procedure section 2025.230 states, “[i]f the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc. § 2025.230.) The Court of Appeal has noted the corporation’s duty in response to a deposition notice for a PMQ is “limited, . . . to producing the most knowledgeable person currently in its employ and making sure that that person has access to information and documents reasonably available within the corporation.” (Maldonado v. Superior Ct. (2002) 94 Cal.App.4th 1390, 1398.) Although Code of Civil Procedure section 2025.230 sets forth the obligations of a corporation, it does not provide authority for the relief sought by the instant motion.

Plaintiffs’ reliance on Code of Civil Procedure section 2025(o) is improper as it was repealed in 2004.

Plaintiffs also cite Maldonado v. Superior Ct. (2002) 94 Cal.App.4th 1390, but that case is distinguishable as at issue were certain topics for which the moving party sought answers and production of documents, unlike here, where Plaintiffs appear to seek an additional three hours to depose Mr. Ridgeway as to all 19 topics for which he was designated as the PMQ after having spent 10 hours taking Mr. Ridgeway’s deposition as PMQ for NCAA.

Plaintiffs additionally cite federal cases relating to objections of a PMQ witness under Federal Rules of Civil Procedure 30(b)(6), without providing any authority supporting that the obligations under that section are the same or similar to obligations under the Code of Civil Procedure.

Based on the foregoing, Plaintiff fail to cite to authority to support the relief sought by the instant motion.

Further, even if Mr. Ridgeway was unprepared in some manner, Plaintiff fails to show that Mr. Ridgeway lacked knowledge because Plaintiff does not establish that Mr. Ridgeway was unable to answer a particular question or questions concerning a particular Deposition Topic, or that he was otherwise incompetent to testify as to the Deposition Topics he was designated for.

The Court notes that as part of its reply papers, Plaintiff attached “an updated copy of the relevant deposition transcripts with all relevant sections having been marked” as Exhibit 1. (Reply Declaration of Daniel E. Joslyn, ¶ 3.) To the extent that these sections include portions of the deposition transcript that should have been, but were not submitted as part of the moving papers, the Court declines to consider this evidence presented for the first time on reply. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

Plaintiffs’ Request for Sanctions

The notice of motion does not specify that Plaintiffs are seeking sanctions and does not cite to any authority for sanctions. Nor does it identify the person, party, or attorney against whom the sanction is sought, or specify the type of sanction sought as required by Code of Civil Procedure section 2023.040. Thus, the Court DENIES Plaintiffs’ request for monetary sanctions.

NCAA to give notice.