Judge: Mark H. Epstein, Case: 23SMCV04998, Date: 2025-02-27 Tentative Ruling

Case Number: 23SMCV04998    Hearing Date: February 27, 2025    Dept: I

This is a motion for sanctions concerning what plaintiff claims is bad conduct by defendant during a deposition.  Specifically, the deposition was a PMK deposition and Sarah Solis was the designee.  On the second day of the deposition, Solis was 50 minutes late.  Further, plaintiff contends that documents were to be provided but they were not provided until lunch, and even then, they were not complete.  That, plaintiff claims, led to a third day.  On day three, plaintiff claims that Solis demanded a long break of 75 minutes in the afternoon, which also cost money.  In opposition, the defense notes that on day 2, defendant was late due to a family emergency involving a sick daughter.  On the third day, the parties had a short lunch and defendant had asked how long the day would go.  Plaintiff assertedly said it would not go for the full day.  Solis apparently assumed as much and therefore had to take a call at 3:00.  When the deposition was not over at that time, Solis took the call anyway, but returned when the call was over.

Normally, counsel just work this stuff out.  But plaintiff claims that this conduct cost money and plaintiff wants fees and sanctions.  The court disagrees.  While it was not good that defendant was late on day 2, illnesses happen.  One might argue that plaintiff ought not bear the cost of defendant’s family emergency, but the court strongly doubts that plaintiff really wants to play it that close to the rules for the $457.50 in court reporter costs.  (Plaintiff also claims a transcript cost of $2163.50, but the court does not understand that.  There was likely no transcript without the witness, and it is not like the deposition was cancelled.)  In any event, the court believes that a sick child is a reasonable excuse for the delay under the circumstances and will not award sanctions on that issue.  The day 3 issue sounds more like the deposition ran longer than expected than misconduct.  When defendant asked how long day 3 would be and was given an answer, it was not unreasonable for the witness to assume that something else could be done that afternoon.  A better way to deal with it would have been for the defense to let plaintiff know well in advance of the need for the break, but it was not sanctionable conduct to rely on the estimate.  Further, the lunch break was shortened, so at least some of that time was made up and defendant returned.  The document issue is certainly not one that paints the defense in a good light.  There was plenty of time to get the documents in order so that they could be provided at the start of day 2.  The fact that they came after lunch and were incomplete speaks poorly of the defense and the seriousness (or lack thereof) with which the defense takes the case.  But that said, the court has not seen good evidence that had the documents been timely produced there would have been no third day.  It is not like day 2 adjourned at 2 pm because plaintiff’s counsel needed to absorb the new documents.  Given that, while the defense’s conduct is poor, the court sees no basis to award sanctions.

Therefore, the request for sanctions is DENIED.  The parties are very strongly urged to work this sort of thing out without bringing it to court.  The court notes the three motions to compel further set for March 14, 2025 and the IDC set for March 7, 2025.  The court views the IDC as an effort to get to a “yes,” not as a mini-hearing.  The parties should do all they can to narrow their differences before the IDC, and the court reminds the parties of the need for a timely joint statement.