Judge Lon F. Hurwitz, Case 19-01058127 2022-11-21 Tentative Ruling

Judge: Lon F. Hurwitz, Case: 19-01058127, Date: 2022-11-21 Tentative Ruling

Motion to Compel Deposition (Oral or Written)

MOTION/RELIEF SOUGHT: Plaintiff Mostafa Gad seeks to compel the deposition of the PMKs of Defendant St. George Auto Sales, Inc. and Defendant St. George Auto Center, Inc.

Moving party requests sanctions as follows:

1. $2,760 against St. George Auto Sales, Inc.; and

2. $2,760 against St. George Auto Center, Inc.

Defendant St. George Auto Sales, Inc. seeks $4,655 in sanctions for Plaintiff’s failure to meet and confer in good faith. Defendant St. George Auto Center, Inc. also seeks $4,655 in sanctions. RP timely opposed, but MP has not filed a timely reply.

ANALYSIS: As both motions, oppositions and replies are substantively the same, they are addressed together.

CCP 2045.450(a) states, “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 [PMK], 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[s], . . . 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[s] . . . .

Defendants contend they timely objected to the deposition notices. CCP 2025.410(a) states that written objections must be served “at least three calendar days” prior to the deposition date. Subsection (b) states that if the objection is made three calendar days before the deposition date, the objecting party shall personally serve the objection.

Defendants served their objections by email.2 (ROA 533, Runge Decl. Ex. 5, p. 43.) The timing of email service is governed by CCP 1010.6(a)(4)(B), which extends service by two court days. However, Defendants’ own proof of service reads, “Note that anything served through electronic transmittal will be treated as service by mail for purposes of calculating deadlines. Specifically, service by email is extended by the five days afforded for service by mail.” (ROA 533, Runge Decl. Ex. 5, p. 43.)

However, even by their own proof of service, service is timely as the objections served five calendar days prior to the deposition date instead of the requisite three. There is nothing in the statute that says an objection cannot be served by mail (here five-day service for email per the proof) as long as it is not served by mail on the third calendar day prior to the deposition. Therefore, service of the objections is timely.

As for the objections themselves, at least one objection must be valid per the statute. Here, Defendants’ counsel objected due to unavailability based on moving residences. As detailed in paragraph 14 of the Runge declaration in support of the Opposition, the conflict in dates was unavoidable due to multiple postponements of counsel’s escrow closing date, a forced move-out date of June 30, and the inability to find a moving company to accommodate the move-out deadline.

As the objections were timely served and valid, Plaintiff may not move to compel the depositions under CCP 2045.450(a) as the first part of the statute was not triggered by Defendants.

As for sanctions, Plaintiff failed to engage in a thorough meet and confer. Defendants offered new dates to Plaintiff for the PMK deposition—September 7 or 8. (ROA 533, Runge Decl. Ex. 9, p. 1.) The Motions were not made or kept on calendar in good faith. Therefore, sanctions are warranted.

However, the amount of sanctions shall be reduced. First, both motions are essentially the same but for name changes, therefore the total amount shall be cut in half. Defense counsel attests he will spend a total of 13 hours on each motion by the time the Motions are heard by the Court. The issues raised in Plaintiff’s Motions are simple. Further, Defendants’ responses to the Separate Statements are largely copied from the opposition briefs. (ROAs 524, 530.) Given the experience of the Declarant based on his bar number (293585), the simplicity of the oppositions and responses to the separate statements, and the number of exhibits to be gathered in support, the reasonable amount of time is 8 hours for both motions. At $350 an hour, sanctions shall be $2,800 total for both motions.

RULING:

The motions are denied. Defendants timely served their objections via email on June 24, 2022, more than the requisite three days required by Cal. Civ. Proc. Code § 2045.450. Further, the Court finds counsel’s inability to proceed with the June 29, 2022, depositions to be excusable; therefore, Defendants’ objection is valid. As Defendants timely filed a valid objection, the pre-requisite of Cal. Civ. Proc. Code § 2045.450 is not satisfied and Plaintiff may not compel the depositions.

Further, sanctions are awarded to Defendants in the amount of $2,800 for Plaintiff’s failure to meaningfully meet and confer. Defendants offered its PMKs for deposition on September 7 or 8—more than two months in advance of this hearing. The Court expects the parties to resolve as many disputes as possible without the Court’s intervention, particularly when time is not of the essence.

However, the Court finds the amount requested by Defendants is excessive, based upon the Declarant’s experience, the similarities in both motions, and the simplicity of the issues in the motions. Therefore, requested sanctions are reduced.

The Court would observe that for any similar issues arising in the future, the Parties might consider availing themselves of a request for Informal Discovery Conference (IDC) prior to the filing of a motion.

Defendants to give notice.