Judge Kerry Bensinger, Case Number: 19STCV44100, Date: 2023-12-14 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

PLAINTIFF’S MOTION FOR RECONSIDERATION OF MOTION TO COMPEL PARTY DEPOSITION OF GOLDBERG

PLAINTIFF’S EX PARTE APPLICATION TO SHORTEN TIME FOR HEARING ON MOTION TO COMPEL THIRD PARTY SUBPOENA FOR GOLDBERG

PLAINTIFF’S MOTION TO COMPEL THE ATTENDANCE AT DEPOSITION OF DEFENDANT KURT BIER

PLAINTIFF’S MOTION TO COMPEL FURTHER DEPOSITION OF DEFENDANT KENNETH SKIPPER-DOTA

DEFENDANTS SKIPPER-DOTTA’S AND BIER’S EX PARTE APPLICATION TO CONTINUE TRIAL AND SET HEARING DATE FOR SUMMARY JUDGMENT

On December 9, 2019, Plaintiff, LGT, a minor, by and through her guardian ad litem, Ernest Calhoon, initiated this legal malpractice action against Defendants, Arthur Goldberg (“Goldberg”), Kurt E. Bier (“Bier”), Kenneth Skipper-Dotta (“Skipper-Dota”), and Working People’s Law Center (“WPLC”).

On January 25, 2024, the court held a status conference to discuss coordinating the time to hear Plaintiff’s various discovery related motions. The court set all four motions for hearing on February 1, 2024.

Prior to the February 1, 2024 hearing, Plaintiff filed an ex parte application.[1] Defendants Bier and Skipper-Dotta also filed an ex parte application. The ex parte applications were to be heard on February 1, 2024.

On February 1, 2024, at the commencement of the hearing on the two ex partes and four motions, counsel for Plaintiff informed the court that he attempted to serve the court with a motion for disqualification pursuant to Code of Civil Procedure (“CCP”) § 170.1, but for various reasons was unsuccessful. The court continued the hearing to February 8, 2024. The disqualification motion was served on the court later in the day on February 1, 2024. On February 5, 2024, the court issued an order striking Plaintiff’s second statement of disqualification.

The court now rules on the motions and ex parte applications. Because two of Plaintiff’s motions and one ex parte application relate to Defendant Goldberg, those matters will be grouped together for consideration. Next, the court will address Plaintiff’s discovery motions related to Defendants Bier and Skipper-Dotta. Finally, the court will address Defendants Bier and Skipper-Dotta’s ex parte application to continue the trial date.

The procedural history of Defendant Goldberg’s motion for summary judgment is relevant to the consideration of Plaintiff’s continued efforts to depose Goldberg.

On April 18, 2023, the court granted Plaintiff’s ex parte application to continue the hearing dates for Goldberg’s summary judgment motion and trial. The hearing date for Goldberg’s summary judgment motion was continued to November 2, 2023. Trial was continued to February 20, 2024. The court stated in its order that no further continuances would be allowed.

On October 12, 2023, Plaintiff filed an ex parte application requesting a continuance of the hearing for summary judgment. The court denied the application on October 20, 2023. However, due to the week-long litigation involving the ex parte application, the court continued the hearing for the summary judgment motion to November 9, 2023.

On October 26, 2023, Plaintiff filed her opposition. The opposition included a request to continue the hearing for this motion pursuant to CCP section 437c(h).

On November 6, 2023, the court on its own motion, continued the hearing for Goldberg’s summary judgment motion to January 8, 2024.

On December 22, 2023, Plaintiff filed another ex parte application to continue the hearing on Goldberg’s motion for summary judgment. On December 26, 2023, the court denied the ex parte application.

On December 27, 2023, Plaintiff filed an amended opposition to Goldberg’s motion for summary judgment. In the amended opposition, Plaintiff requested a continuance of the hearing pursuant to CCP section 437c(h) to depose Goldberg. On January 11, 2024, the court heard argument on the motion. After the hearing, the court took the matter under submission. On January 17, 2024, the court denied Plaintiff’s request to continue the hearing on the motion for summary judgment and granted Goldberg’s motion. Judgment was entered on February 6, 2024.

Against this background, the court considers and addresses Plaintiff’s motions and ex parte application related to Goldberg.

A. Plaintiff’s Motion For Reconsideration of Court’s December 14, 2023 Denial of Plaintiff’s Motion to Compel the Deposition of Defendant Goldberg

On October 13, 2023, Plaintiff filed a motion to compel Goldberg to appear for deposition. The hearing on the motion was scheduled for December 14, 2023.

On December 14, 2023, the court denied Plaintiff’s motion to compel Goldberg’s deposition. The court denied the motion because Plaintiff did not demonstrate that she had diligently pursued Goldberg’s deposition in the four years the case had been pending. Nor did Plaintiff meet and confer as required by CCP section 2025.450, subdivision (b)(2)[2] prior to bringing the motion. On the same day, Goldberg and WPLC served Plaintiff with a Notice of Ruling by electronic service.

On December 28, 2023, Plaintiff filed the current motion for reconsideration of the court’s December 14, 2023, ruling.

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (Code Civ. Proc. § 1008, subd. (a).)¿ “A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. [Citation.]”¿ (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)¿¿A motion for reconsideration is properly denied where it is based on evidence that could have been presented in connection with the original motion.¿ (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460.)¿¿¿

“The statutory provisions relating to motions for renewal (i.e., subsequent applications for the same order) are found in section 1008, subdivision (b).”¿ (Graham v. Hansen (1982) 128 Cal.App.3d 965, 970.)¿ “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”¿ (Code Civ. Proc., § 1008, subd. (b).)¿ “These provisions contain no requirement that a motion for renewal be made within the 10-day time period as is required for motions for reconsideration.”¿ (Graham, supra, 128 Cal.App.3d at p. 970.)¿

Plaintiff brings this motion for reconsideration and renewal pursuant to CCP section 1008, subdivisions (a) and (b). She argues there are new or different facts requiring an order different than the court’s December 14, 2023, ruling. In support, Plaintiff references two emails Plaintiff sent on September 27, 2023 and September 30, 2023 to Goldberg’s counsel. Plaintiff contends Goldberg omitted the emails from his opposition, which are significant because they purportedly show that Goldberg was “the real reason a stipulation could not be reached for moving deposition.” (Mot., p. 3:14-15.)

Plaintiff’s argument is confusing. The emails are unrelated to the reason the court denied Plaintiff’s motion to compel Goldberg’s deposition, namely, Plaintiff’s failure to meet and confer. Specifically, the Code of Civil Procedure does not require obtaining stipulations from all defendants to set a deposition date. The court denied Plaintiff’s motion because Plaintiff failed to meet and confer in good faith with Goldberg about rescheduling his deposition. These emails do not alter the basis of the court’s December 14, 2023, ruling.

Further, Plaintiff’s argument is unconvincing for at least two more reasons. First, the emails are not new evidence. They are emails Plaintiff’s counsel sent. Plaintiff’s counsel possessed those emails. And as the dates suggest, Plaintiff’s counsel had those emails prior to filing his motion to compel Goldberg’s deposition on October 13, 2023. Plaintiff does not explain why he could not have included these emails in his moving or reply papers.

Second, Plaintiff seeks to compel Goldberg’s deposition but fails to articulate a basis to conduct the deposition. The court granted Goldberg’s summary judgment motion on January 17, 2024. Plaintiff fails to articulate any reason to pursue Goldberg’s deposition.

Plaintiff does not present any new facts that require reconsideration of the December 14, 2023, ruling or otherwise support renewal of the motion to compel Goldberg’s deposition filed on October 13, 2023.

On December 15, 2023, Plaintiff served Goldberg with a notice of taking of deposition. The deposition was noticed for December 27, 2023. Goldberg did not appear for the deposition.

On January 5, 2024, Plaintiff filed a motion to compel the deposition of Goldberg pursuant to CCP section 2025.450 [Failure of Party Opponent to Appear]. The hearing date on the motion was set for February 1, 2024.

On January 17, 2024, the court granted Goldberg’s and WPLC’s motion for summary judgment. The court considered and denied Plaintiff’s CCP 437c(h) request to continue the motion for summary judgment to depose Goldberg.

Goldberg did not file a timely opposition to Plaintiff’s January 5, 2024 motion to compel. On January 29, 2024, Goldberg and Goldberg’s counsel each filed declarations. In Goldberg’s declaration, he states he did not appear for deposition on December 27, 2023 because he was unavailable. In her declaration, counsel for Goldberg confirms Goldberg was unavailable for deposition on December 27, 2023 and that Plaintiff was notified of the same on December 18, 2023. Counsel acknowledges an opposition was not timely filed and requests relief under CCP section 473(b). She also states that Plaintiff did not adequately meet and confer prior to filing this motion.

Any party may obtain discovery by taking in California the oral deposition of any person. (Code Civ. Proc., § 2025.010.) “If, after service of a deposition notice, a party to the action…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.” (Code Civ. Proc., § 2025.450, subd. (a).)

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿¿

“If a motion under [Code of Civil Procedure section 2025.450] subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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., § 2025.450, subd. (g)(1).)¿¿¿¿

Plaintiff moves the court for an order to compel the deposition of Goldberg pursuant to CCP section 2025.450. Goldberg did not file an opposition and seeks CCP section 473(b) relief to file an opposition. Because Goldberg did not file its opposition along with the motion as required by the code, 473(b) relief cannot be granted.[3] Nonetheless, in the declarations filed by Goldberg and his counsel, Goldberg advances as a basis to resist the motion his requests for a protective order and/or the need for a discovery referee. As discussed below, Goldberg may have good cause for either or both, but he has not filed a noticed motion for such orders. In sum, Goldberg does not present authority to resist his deposition. Should Goldberg seek relief by way of a protective order or the appointment of a discovery referee, he must apply to the court for such relief.

Plaintiff’s request for sanctions is denied. “If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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. § 2025.450, subd. (g)(1).) Here, the court finds imposition of sanctions would be unjust given the difficulty in ferreting out Plaintiff’s email attachment and the legitimate issues Golberg raises related to a discovery referee or protective order.

The motion is GRANTED. Goldberg is to appear for deposition. The granting of this motion does not preclude Goldberg from moving for a protective order or for the appointment of a discovery referee.

C. Ex Parte Application To Shorten Time for Hearing on Motion to Compel Third Party Subpoena for Goldberg

On January 9, 2024, Plaintiff served Goldberg with a deposition subpoena by personal service. The subpoena noticed Goldberg’s deposition for January 22, 2024. Goldberg did not object to or appear for the deposition.

On January 30, 2024, Plaintiff filed an ex parte application to shorten time for hearing on a motion to compel third party subpoena for Goldberg.

On January 31, 2024, the court denied the ex parte application for lack of exigency, noting that any exigency was of Plaintiff’s own making. Goldberg also opposed the ex parte and identified service, scheduling, and merit issues. The court declined to resolve those issues by ex parte application. The court noted that Plaintiff had reserved a hearing date for a potential motion to compel for May.

On the same day, having yet to file a motion to compel Goldberg’s deposition for failure to object to or appear for the January 22, 2024 deposition, Plaintiff filed another ex parte application to shorten time on the May 8, 2024 hearing. Goldberg identified the same service, scheduling, and merit issues in opposition to the January 31, 2024 ex parte application.

On February 1, 2024, Plaintiff filed the motion to compel Goldberg’s deposition with a hearing date on May 8, 2024.

Plaintiff is not entitled to ex parte relief. As noted in the court’s January 31, 2024 order denying Plaintiff January 30, 2024 ex parte application, any exigency is of Plaintiff’s own making.

Moreover, the motion to compel Goldberg’s deposition is untimely. “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” (Code Civ. Proc., § 1005, subd. (b).) Further, “Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).)

Here, trial is currently set for February 20, 2024. Therefore, by Code, Plaintiff was entitled to have her discovery motion heard no later than February 5, 2024. Given that any motion must be filed 16 court days prior to the hearing date for the motion, any motion thereon had to be filed no later than January 11, 2024. Plaintiff filed her motion on February 1, 2024, well beyond that deadline.

The court will not exercise its discretion to shorten time and advance the hearing to February 5, 2024. Indeed, the court cannot shorten time given that the February 5, 2024 has already passed. Plaintiff filed this case in 2019. The court granted summary judgment. Plaintiff’s motion is untimely.

Given the court’s ruling, the court need not address Goldberg’s arguments regarding the alleged service defects of the deposition subpoena.

On October 5, 2023, and October 16, 2023, Plaintiff conducted the deposition of Defendant Bier. However, the deposition was not completed. Bier terminated the deposition because of Plaintiff’s counsel’s improper conduct. Bier stated he would seek a protective order. He did not.

On November 30, 2023, Plaintiff filed this motion to compel Bier to complete his deposition. Plaintiff seeks sanctions against Bier.

On January 16, 2024, Bier filed an opposition. Bier requests sanctions against Plaintiff.

Plaintiff seeks an order compelling Bier to complete his deposition. She argues Bier ended his deposition and indicated he would move for a protective order yet never brought the motion. In support, Plaintiff submits a partial transcript of the second deposition.

Bier argues the motion to compel should be denied because it became clear at the deposition that Plaintiff’s counsel was not conducting the deposition with the aim of obtaining facts reasonably related to the discovery of admissible information and acted in an abusive, unprofessional manner. He avers to being subjected to insults and unprofessional behavior by Plaintiff’s counsel, Ernest Calhoon. Bier states in relevant part:

Mr. Calhoon’s subsequent questioning focused on two areas. One, he questioned me about a meeting he claimed to have had with me at WPLC. He asked if I remembered meeting him and I said that I did not. Mr. Calhoon became upset and was disbelieving that I did not recall meeting him. He asked me if I remembered what high school I went to. He then asked me what my first job was. He then wanted me to name all the jobs I had had during my entire life. He then asked me to name the judges in the Stanley Mosk courthouse. When I couldn’t name them all, he became upset again. He said that I was not being truthful. He asked me again about meeting him. I told him that I had already answered that question and I repeated that I did not remember meeting him. He then called me a liar.

His second area of questioning related to the documents he had requested. I said that I did not have custody or control of the documents related to the LGT case, and that for the remaining categories, I was not going to produce documents that were not relevant. He focused on the documents related to the LGT case and asked me about them again. I told him again that I didn’t have them. At this point, Defendant Goldberg’s attorney informed Mr. Calhoon that the documents had already been given to him months ago. Apparently, Mr. Calhoon didn’t realize this. Even then, he continued to press me for the documents. He would not accept no for an answer, and then spent much of the time calling Defendant Goldberg’s attorney names and ranting about the injustices suffered by LGT. Given that the deposition had effectively ended because I was no longer being asked relevant questions, I left. I offered to meet and confer regarding continuing the deposition with safeguards in place to ensure its civility but I never received a response.”

Plaintiff’s reply completely ignores these representations; they are left unaddressed and unrebutted.

Bier further represents he could not prepare a motion for protective order because when Bier contacted the court reporting agency seeking the transcript, the agency refused to provide it because Plaintiff had not paid the agency. (Bier Decl., ¶ 6.)[4] As to the second deposition, which took place on October 16, 2023, Bier asked Mr. Calhoon for the name of the court reporter. In response, Mr. Calhoon stated: “Today I received the below note from you, but thought I already answered it and I did on December 19 stating Michelle Watson 8357 of Courtcall.”[5] (Bier Decl., Ex. D.) Mr. Calhoon did not provide Bier with the court reporter’s contact information. Plaintiff’s reply does not address any of these points.

Mr. Bier raises the foregoing as an excuse for not seeking a protective order. Nonetheless, Mr. Bier’s opposition is just that – a request for a protective order. As such, it is procedurally improper. The court cannot grant a protective order absent a formal, noticed motion. (St. Paul Fire and Marine Ins. Co. v. Sup. Ct.(Borak)(1984) 156 Cal.App.3d 82, 85-86.) While a court, for good cause shown, may make an order that justice requires, including terminating the deposition[6], to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, the genesis for any such order is the motion for a protective order. (Code Civ. Proc., § 2025.420.) Mr. Bier has not filed such a motion.

Because Mr. Bier did not file a motion for a protective order, the court cannot grant one. Consequently, the motion to compel the remaining portion of Mr. Bier’s deposition is granted. Should Mr. Bier find himself in a similar situation as he describes, his remedy is to seek a protective order pursuant to Code Civ. Proc., §§ 2025.420, 2025.470.

Each party requests sanctions. The court declines to impose sanctions on any party. Mr. Bier had substantial justification in opposing the motion given his concerns of Mr. Calhoon’s behavior.

Based on the foregoing, the motion to compel Bier’s further deposition is GRANTED. The granting of this order does not preclude Mr. Bier from moving for a protective order or the appointment of a discovery referee.

On January 3, 2024, Plaintiff filed a motion to compel the deposition of Defendant Skipper-Dota. Plaintiff seeks sanctions against Skipper-Dota.

On January 17, 2024, Skipper-Dota filed an opposition. He seeks sanctions against Mr. Calhoon.

Plaintiff seeks an order compelling Skipper-Dota to appear for deposition. She states Skipper-Dota was properly served with a deposition notice on December 15, 2023. The notice set the deposition for December 28, 2023. However, Plaintiff contends Skipper-Dota refused to appear.

Skipper-Dota states that he did not appear for deposition because he lost access to the email address where the deposition notice was sent. Further, Skipper-Dota states he was away for the holidays on the noticed deposition date and was unaware of the noticed deposition until December 26, 2023, when Goldberg’s counsel asked if he would be appearing. Upon learning of the deposition notice, Skipper-Dota notified Mr. Calhoon that he was unavailable to appear because he was traveling for the holidays, that a deposition officer would be necessary given Mr. Calhoon’s prior harassing behavior, and that questions would need to be focused on the representation of Plaintiff. (Skipper-Dota Decl., ¶ 5.) Skipper-Dota indicates a willingness to sit for a deposition that is reasonably calculated to the discovery of admissible facts. However, because Plaintiff’s counsel has not attempted an informal resolution in good faith nor shown he will conduct a deposition without engaging in harassing behavior (or agree to a protective order), Skipper-Dota contends the motion should be denied.

As discussed above, the court cannot issue a protective order absent a formal, noticed motion. Mr. Calhoon’s behavior may merit a protective order, but Defendant must file a noticed motion before one can be granted.[7] (See, e.g., Skipper-Dota Decl., ¶ 3 [“Mr. Calhoon previously sent out written discovery to defendants requesting information about whether the defendants had sexual relationships with African-American males.”].)

Each party requests sanctions. The court declines to impose sanctions on any party. Although Plaintiff properly noticed Skipper-Dota’s deposition, Skipper-Dota had substantial justification in opposing the motion given his concerns of Mr. Calhoon’s behavior.

The motion to compel is GRANTED. The granting of this motion does not preclude Skipper-Dota from moving for a protective order or the appointment of a discovery referee.

On January 31, 2024, Defendants Skipper-Dota and Bier filed an ex parte application to continue the trial date for 150 days to allow Defendants to file a motion for summary judgment.

Trial is continued to August 19, 2024. The Final Status Conference is continued to August 5, 2024.

Any summary judgment motion must be filed no later than May 6, 2024. Hearings for summary judgment motions must be reserved for a date no later than July 19, 2024.

a. The Motion for Reconsideration of the Court’s 12/14/23 Order is denied. Goldberg’s request for sanctions is denied.

b. The Motion to Compel is granted. Goldberg is to appear for deposition . Goldberg’s request for CCP section 473(b) relief is denied. Plaintiff’s request for sanctions is denied..

c. Plaintiff’s ex parte application to shorten time for Hearing on Motion to Compel Third Party Subpoena for Goldberg is denied.

The motion is granted. Bier is ordered to appear for deposition. The requests for sanctions are denied.

The motion is granted. Skipper-Dota is ordered to appear for deposition. The requests for sanctions are denied.

4. Defendants Skipper-Dota’s and Bier’s Ex Parte Application to Continue the Trial and Set a Hearing Date for a Motion for Summary Judgment

Trial is continued to August 19, 2024. The Final Status Conference is continued to August 5, 2024.

Any summary judgment motions must be filed no later than May 6, 2024. Hearings for summary judgment motions must be reserved for a date no later than July 19, 2024.

Discovery remains closed except for the completion of Goldberg’s, Bier’s and Skipper-Dotta’s depositions.

Defendants may bring motions for a protective order or for the appointment of a discovery referee.

[1] On January 30, 2024, Plaintiff filed an ex parte application to shorten time for the hearing on the motion to compel Goldberg’s deposition pursuant to a third party subpoena. The ex parte application exceeded 200 pages. On the same day, Plaintiff filed a notice of errata. Goldberg filed an opposition. The next morning, prior to the hearing on the ex parte application, Plaintiff withdrew the ex parte. On the same day, January 31, 2024, Plaintiff filed another ex parte application to shorten time on the motion to compel Goldberg’s deposition pursuant to a third party subpoena. The court addresses herein the ex parte application filed on January 31, 2024.

[2] “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.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

[3] “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)

[4] The party noticing the deposition shall bear the cost of the transcription, unless the court, on motion and for good cause shown, orders that the cost be borne or shared by another party. (Code Civ. Proc., § 2025.510, subd. (b).)

[5] The partial transcript of the October 16, 2023 deposition identifies the reporter as “Michele Watson CSR No. 8359.” (Calhoon Decl., Ex. 1, emphasis added.)

[6] CCP section 2025.420 discusses various options for the court when issuing a protective order including “that examination of the deponent be terminated. If an order terminates the examination, the deposition shall not thereafter be resumed, except on order of the court.” (Code Civ. Proc., § 2025.420, subd. (b)(16).)

[7] Both Bier and Skipper-Dota point out the need for a discovery referee. There may well be merit for the request. But neither Defendant filed a noticed motion for the appointment of a referee. Any such motion must include a proposal for the payment of the referee’s fees. (See Code Civ. Proc., § 645.1(b).)