Judge: Mark H. Epstein, Case: 20STCV03819, Date: 2022-12-13 Tentative Ruling

Case Number: 20STCV03819    Hearing Date: December 13, 2022    Dept: R

The unopposed motion to compel is GRANTED if the Custodian of Records declaration has not yet been produced and DENIED AS MOOT other than sanctions if the declaration has not been produced.

Plaintiff has alleged assault and battery.  Defendant moves to compel third-party Vaclavik to comply with the deposition subpoena for the production of documents.  In the notice of non-opposition, defendant states that the records have since been produced but that he has not yet received a proper custodian of records declaration.  Defendant will withdraw the motion if the declaration is provided before the hearing except as to sanctions. 

If the declaration has been provided, then the merits are MOOT.  If not, then the motion will be GRANTED and the declaration will be filed within 5 court days of the date of this order.

That leaves the question of sanctions.  The court is not sure that Dr. Vaclavik was properly served with the motion.  The notice of motion lists the wrong hearing date (December 13, 2018) and the wrong courthouse.  There is no proof of service.  The fact that Dr. Vaclavik produced the documents is some evidence of proper service, but the court cannot be sure.  If there was proper service, even if the wrong date and place were listed in the notice, the court is inclined to grant the motion.  The problem is that with the discovery cut-off looming large, defendant had no choice but to bring the motion and incur the fees.  The amount sought is reasonable, and therefore sanctions will be awarded in the amount of $2310 (which is inclusive of the filing fee), payable within 30 days.  That said, if there is some justification as to the reason that the documents were not earlier produced, Dr. Vaclavik can file a motion within the next 5 court days seeking to have the sanctions vacated.  If the motion is filed, the court’s sanctions order will be stayed pending resolution.  Frankly, the court would far prefer that the parties work this out amongst themselves.