Judge: Malcolm Mackey, Case: 20STCV12973, Date: 2022-09-16 Tentative Ruling

Case Number: 20STCV12973    Hearing Date: September 16, 2022    Dept: 55

MAGNOLIA APTS., INC. v. ALTURA ROOFING CORP.                   20STCV12973 

Hearing Date:  9/16/22,  Dept. 55

#4:   

MOTION FOR AN ORDER COMPELLING DEPOSITIONS OF:  BALBOA POINTE APTS., INC., dba BALBOA POINTE APARTMENTS; 2175 S. MALLUL DRIVE, LLC; HACIENDA GARDEN APARTMENTS, INC. dba HACIENDA GARDEN APARTMENTS; AND, REQUEST FOR SANCTIONS IN THE AMOUNT OF $2,025 AGAINST SAID WITNESSES AND THEIR COUNSEL OF RECORD, AND OSC RE CONTEMPT.

MOTION FOR AN ORDER COMPELLING MAGNOLIA APARTMENTS, INC. DBA STUDIO VILLAGE APARTMENTS TO COMPLY WITH DEPOSITION NOTICE, REQUEST FOR SANCTIONS IN THE AMOUNT OF $2,025 AGAINST SAID WITNESS AND ITS COUNSEL OF RECORD, AND OSC RE CONTEMPT.

Notice:  Okay

Opposition

MP:  Defendant/Cross-Complainant ROOF SUPPLY G&F SAN DIEGO.

RP:  Plaintiffs

Summary

On 4/2/20, Plaintiff filed a Complaint alleging that the quality of the replaced roofs was below professional roofing standards, including because of damaging water leakage, and other roofs were not replaced, in breach of contract.

The causes of action are:

1. BREACH OF CONTRACT;

2. BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING;

3. NEGLIGENCE;

4. DECLARATORY RELIEF.

On 5/23/22, Defendant ROOF SUPPLY G&F SAN DIEGO filed a First Amended Cross-Complaint against plaintiffs, co-defendants and others, alleging, inter alia, that ROOF SUPPLY had provided uncompensated services and materials on a construction project.

Cross-Complainant’s claims are for:

1. BREACH OF WRITTEN CONTRACT;

2. QUANTUM MERUIT;

3. OPEN BOOK ACCOUNT;

4. IMPLIED INDEMNITY;

5. ON CONTRACTOR'S LICENSE BOND;

6. FORECLOSURE OF MECHANICS LIEN;

7. FORECLOSURE OF MECHANICS LIEN;

8. COMMON COUNT-GOODS AND SERVICES RENDERED. AGAINST STUDIO VILLAGE APARTMENTS

9. COMMON COUNT-GOODS AND SERVICES RENDERED AGAINST BALBOA POINTE APARTMENTS.

MP Positions

Moving party requests orders compelling attendance at depositions, setting OSCs re contempt, and imposing monetary sanctions ($2025 for each motion), on grounds including the following:

·         The plaintiffs failed to attend their noticed depositions.

·         No explanation or rescheduling was provided by the deponents.

·         Deponents failed to provide available dates for each of their depositions.

·         Proper notice was served.

·         Deponents did not object to the deposition notices, but failed to appear.

·         Efforts made to reach their attorney of record to ascertain the reason have gone unanswered.

·         There is an impending trial date.

RP Positions

Opposing parties advocate denying, for reasons including the following:

·         Deponents’ proposed deposition dates, to be held in May 2022, did not proceed, because Defendant did not timely accept the offered dates.

·         Moving parties failed to respond to other proposed deposition dates.

·         The court should order a meet and confer to be completed, instead of entering an order, or imposing any sanctions.

Tentative Ruling

Both motions are granted as to requests to compel depositions, and denied as to sanctions and OSCs.

The Court will sign and file proposed orders from the moving party.

The Court finds substantial justification for positions of each side, because mutual efforts to set deposition times are required, and the parties disagree as to which side failed resolve the issue.

A motion lies to compel deposition attendance and document production, after service of a deposition notice, where a deponent fails to appear at, or proceed with, a deposition, without having served a valid objection.  CCP §2025.450(a). 

Generally, monetary sanctions are mandatory as to parties losing discovery motions, unless courts find substantial justification or other injustice.  E.g.,  Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4^th 1542, 1557-58.  “ ‘[S]ubstantial justification” has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact.”  Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.

Generally, trial courts have discretion as to whether to punish any contempt.  Goold v. Sup. Ct. (2006) 145 Cal. App. 4th 1, 9.  See, also, e.g., CCP §§1211(a) (“may be punished….”);  1212 (“warrant … may be issued….”);  1991 (“Disobediance to a subpoena… may be punished as a contempt….”);  1993(a)(1) (“may issue a warrant” re deposition subpoena);  2020.240 (“deponent who disobeys a deposition subpoena . . . may be punished for contempt….”);  2023.030(e) (court "may" impose contempt sanction.)  “‘The power of the court to punish for contempt is indeed broad, but it is not unlimited. It is a drastic remedy, to be employed only when necessary to the proper and orderly conduct of judicial proceedings.’”  Chapman v. Sup. Ct. (1968) 261 Cal.App.2d 194, 201.