Judge: Martha K. Gooding, Case: 2021-01204907, Date: 2022-08-22 Tentative Ruling
Motion to Compel Production
Defendant Kaustubh Dilip Bhalerao (“Defendant”) moves to compel Plaintiff Richard Villegas (“Plaintiff”) to appear, produce documents, and provide testimony at a deposition. In addition, Defendant seeks an award of sanctions against Plaintiff in the sum of $1,860.
The Motion to compel appearance/testimony/production is denied as moot, as all parties agree Plaintiff’s deposition has already occurred. That leaves only Defendant’s request for an award of sanctions. For the reasons set forth below, the Court denies the request for sanctions; on the facts here, such an award would be unwarranted and unjust.
It is undisputed that Plaintiff appeared for his deposition on 5/24/22 without issue. However, Defendant contends he incurred significant costs based on Plaintiff’s failure to attend the previously noticed deposition on 4/21/22.
Sanctions on a motion to compel the appearance at deposition are governed by CCP section 2025.450(g).
Based on the declarations submitted to the Court, the pertinent facts are summarized as follows. (See, Bridwell Decl. ¶ 5, Ex. D and Oviedo Decl. ¶ 9, Ex. B.) The day before the 4/21/22 deposition, Plaintiff’s counsel’s office confirmed Plaintiff would be attending the deposition. The morning of the scheduled deposition, however, Plaintiff’s counsel informed defense counsel that Plaintiff could no longer appear due to a medical emergency. Defendant contends it was too late to cancel the court reporter, so the deposition went forward and a certificate of non-appearance was taken. Defense counsel requested reimbursement for the court reporter fees, and Plaintiff refused on the ground that the last-minute cancellation was necessitated by exigent circumstances.
On 5/9/22, the day before this instant motion was filed, Defendant served a Second Amended Notice of Deposition. The deposition was noticed for 5/24/22 and the parties concede that it went forward.
As set forth in the Notice of Motion, Defendant seeks sanctions of $1,860 that consist of attorney’s fees and costs for filing the instant motion.
In Reply, Defendant asks the Court to also award court reporter fees incurred in connection with the cancelled 4/21/2022 deposition. But those court reporter fees were not included in what was sought in Defendant’s Notice of Motion and Motion. Thus, the additional fees are beyond the scope of relief as stated in the Notice of Motion. Further, “the general rule of motion practice … is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Thus, the Court declines to consider the additional evidence and the request for additional costs set forth in the Reply.
Based on these facts, the Court declines to award sanctions.
Defendant filed this motion literally one day after noticing the new deposition, without waiting to see if Plaintiff would appear. Further, Defendant did not address the second deposition notice in the motion. Defendant provides no evidence that Plaintiff objected to the amended deposition notice or indicated he would not appear. To the contrary, Plaintiff contends the deposition went forward on 5/24/22 without issue and Defendant does not dispute this. Thus, it appears Defendant filed this motion – seeking an order to compel Plaintiff to attend the deposition – prematurely, without having received any indication that Plaintiff did not intend to appear.
Motion is denied; Plaintiff is ordered to give notice.