Judge: John C. Gastelum, Case: 19-01077198, Date: 2022-11-30 Tentative Ruling

Motion to Compel Production

Tentative Ruling: Defendant Ming Ge (“Defendant”) moves to compel Plaintiff Homeowners Legal Advocates, PLC (“Plaintiff”) to produce responsive documents at deposition pursuant to Defendant’s First Amended Notice of Deposition of Person(s) Most Qualified and for monetary sanctions in the amount of $4,890.00.

Code of Civil Procedure section 2025.450(a) provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”

A motion under Code of Civil Procedure section 2025.450(a) must be accompanied by a declaration under Code of Civil Procedure Section 2016.040 or, when the deponent fails to attend the deposition and produce documents, by a declaration stating that the moving party contacted the deponent to inquire about the nonappearance.  (Code Civ. Proc., § 2025.450(b)(2).) 

Counsel for Defendant met with counsel for Plaintiff by Zoom on June 21, 2022 to discuss the lack of document production.  (Declaration of Adam C. Cramer (“Cramer Decl.”), ¶¶ 13-15.)  Counsel for Plaintiff stated no documents would be produced without a court order.  (Id., ¶ 16.)  The Court finds Defendant has complied with the meet and confer requirement.

The First Amended Notice of Deposition was served on February 22, 2022, (Cramer Decl., ¶ 3) and the deposition was set for March 11, 2022.  On March 8, 2022, Plaintiff served via email objections to document categories 5-12.  (Id., ¶ 5.)  No documents were produced at the deposition.  (Id., ¶ 7.)

If objections to a deposition notice are made three calendar days before the deposition date, the objecting party shall make personal service of that objection.  (Code Civ. Proc., § 2025.410(b).)  Here, Plaintiff’s objections were served three calendar days before the deposition date, but they were served by email rather than personal service.  Thus, Plaintiff’s objections to the deposition notice have been waived.  (Id., § 2025.410(a).)

In its untimely filed and served Opposition, Plaintiff argues its objections to request numbers 5-13 based on relevancy are meritorious.  However, as stated above, Plaintiff has waived any objections to the deposition notice. 

Given the above, Defendant’s Motion is GRANTED.  Plaintiff is ORDERED to produce all responsive documents in its possession, custody, or control within 10 days.

The Court must impose a monetary sanction against Plaintiff, unless it finds Plaintiff acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  The Court finds Plaintiff’s failure to produce documents at deposition to be without substantial justification.  Thus, the Court GRANTS Defendant monetary sanctions against Plaintiff in the amount of $1,560.00.

Defendant to give notice.