Judge Lisa K. Sepe-Wiesenfeld, Case Number: 22SMCV00457, Date: 2023-10-19 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 22SMCV00457, Date: 2023-10-19 Tentative Ruling

Defendants Rouhani Construction, Inc. and Kambiz Rouhani’s Motion for an Order Compelling Plaintiff Keyhan Ghotbi to Attend and Testify at Deposition and Produce Documents; Request for Monetary Sanctions is DENIED.

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc., § 2030.290, subds. (b), (c).) Failure to timely respond waives all objections, including privilege and work product, unless “[t]he party has subsequently served a response that is in substantial compliance” and “[t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., § 2030.290, subd. (a).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

Defendants Rouhani Construction, Inc. and Kambiz Rouhani (“Defendants”) served their Form Interrogatories, Set One, on Plaintiff Keyhan Ghotbi (“Plaintiff) on September 22, 2023, by mail and email. (Mot., Roshan-Zamir Decl. ¶¶ 2-3.) Defendants represent that Plaintiff failed to serve any responses by October 25, 2023. (Mot., Roshan-Zamir Decl. ¶ 5.) Defendants filed the present motion on November 6, 2023, without a statement that responses had been served before the motion filing date, as Plaintiff represents responses were due on October 25, 2023, and they were served on that date. (Opp’n, Szabo Decl. ¶ 7.) The Court expresses concern that defense counsel omitted this information out of his declaration. Defendants contend that responses were due on October 24, 2023, and the Court agrees, as Plaintiff attempts to add a weekend day before responses were actually due.

Code of Civil Procedure section 2030.290, subdivision (a), provides that a party who does not timely respond to discovery requests waives any objection to those requests, but the Court may, on motion, relieve that party from such waiver where the Court determines that the party has served a response that is substantially code-compliant, and the failure to timely respond was the result of mistake, inadvertence, or excusable neglect. The Court is not inclined to order Plaintiff to respond without objection where he may reasonably bring a motion to seek waiver of objections, particularly where it appears defense counsel omitted facts from Defendants’ motion. For this reason, Defendants Rouhani Construction, Inc. and Kambiz Rouhani’s Motion to Compel Response to Form Interrogatories, Set One; Request for Monetary Sanctions is DENIED.

Defendants also move the Court for an order compelling Plaintiff to appear for his deposition and to produce all responsive documents in accordance with the deposition notice served on Plaintiff. Defendant represents that he served a notice of deposition upon Plaintiff on September 22, 2023, with the deposition to occur on November 1, 2023. (Mot., Roshan-Zamir Decl. ¶ 2.) Plaintiff did not appear for the deposition on that date. (Mot., Roshan-Zamir Decl. ¶ 6.)

“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).)

While Defendants are entitled to take Plaintiff’s deposition, and Defendants present evidence that Plaintiff failed to appear for examination or produce documents without having served a proper objection to the notice of deposition, Plaintiff’s motion is not accompanied by a proper declaration and must be denied.

Code of Civil Procedure section 2025.450, subdivision (b)(2), states that a motion to compel a party’s deposition “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.” Defendants’ motion is one to compel deposition testimony due to Plaintiff’s nonappearance, such that it should have been accompanied by a declaration describing meet-and-confer efforts or stating that defense counsel contacted Plaintiff to inquire about the nonappearance. Plaintiff’s motion fails to set forth any such efforts.

Because the instant motion is not accompanied by the required declaration, Defendants Rouhani Construction, Inc. and Kambiz Rouhani’s Motion for an Order Compelling Plaintiff Keyhan Ghotbi to Attend and Testify at Deposition and Produce Documents; Request for Monetary Sanctions is DENIED.