Judge: Melissa R. Mccormick, Case: Wells Fargo Bank v. Kirton, Date: 2022-07-28 Tentative Ruling

Defendant and Cross-complainant Martha Kirton’s Motion to Compel Deposition

Defendant and cross-complainant Martha Kirton moves to compel a deposition of plaintiff and cross-defendant Selene Finance LP’s person most knowledgeable and production of documents.  For the following reasons, Kirton’s motion is granted.

The court has detailed the history of this long-pending and extensively-litigated case in other orders.  See, e.g., 6/30/22 Order (and orders cited therein).  Fact discovery closed on October 18, 2021.  See, e.g., 10/19/21 Order (“All expired pretrial deadlines, including the fact discovery cut-off date, remain closed.”).  The trial is scheduled for January 30, 2023.

Kirton served Selene with a deposition notice on August 2, 2021 noticing Selene’s deposition for August 18, 2021.  Selene did not serve objections to the notice.  The deposition did not occur in August 2021.  The parties ultimately rescheduled the deposition for October 21, 2021.

On October 19, 2021 Selene circulated a proposed stipulation to continue the then-November 15, 2021 trial date and all related litigation deadlines, including discovery deadlines.  Miller Decl. Ex. E.  All parties signed the stipulation.  Id.  The stipulation was never filed with the court. 

Also on October 19, 2021, and without knowledge of the parties’ stipulation, the court issued an order continuing the then-November 15, 2021 trial date for the reasons set forth in the order.  See 10/19/21 Order.  Later on October 19, 2021, after receiving the court’s order, Selene agreed to continue the PMK deposition that had been scheduled for October 21, 2021.  Miller Decl. Ex. F.  Selene’s counsel’s email states:  “Agreed, we can continue the PMK depo.  We can take off calendar subject to reset at a mutually convenient date and time.”  Id.  The deposition has not occurred.

For unclear reasons, Kirton served Selene with another deposition notice on March 28, 2022, noticing Selene’s deposition for May 6, 2022.  Selene served objections to the March 28, 2022 notice, and also informed Kirton it would not produce a witness for deposition because discovery was closed.

Kirton contends the parties’ unfiled October 19, 2021 stipulation extended or reopened discovery pursuant to Civil Procedure Code section 2024.060.  Section 2024.060 states:

“Agreements to extent time or reopen discovery; written agreement

Parties to an action may, with the consent of any party affected by it, enter into an agreement to extend the time for the completion of discovery proceedings or for the hearing of motions concerning discovery, or to reopen discovery after a new date for trial of the action has been set.  This agreement may be informal, but it shall be confirmed in a writing that specifies the extended date.  In no event shall this agreement require a court to grant a continuance or postponement of the trial of the action.”

Section 2024.060 does not apply to the parties’ October 19, 2021 stipulation.  By its plain terms, the stipulation would have required the court to continue the then-November 15, 2021 trial date.  Indeed, the stipulation states:  “WHEREAS, the Parties request that the Court continue the pending trial date and all related deadlines to a date in January 2022, or a date convenient to the Court.”  Miller Decl. Ex. E (Stipulation at 2:16-17).  The fact that the court—without knowledge of the parties’ stipulation—separately continued the trial date (and did so due to the parties’ unfortunate conduct detailed in the October 19, 2021 order) does not render section 2024.060 applicable to the stipulation.

Section 2024.06 may apply, however, to the parties’ agreement to continue the PMK deposition after the court issued its October 19, 2021 order.  Miller Decl. Ex. F.  After the court continued the trial date, the parties exchanged written emails about the PMK deposition.  Selene’s counsel agreed in writing to continue the PMK depo to a mutually convenient date and time.  Id.  While the parties did not specify a later date for the deposition, they certainly agreed the deposition would occur.  In light of that agreement, the application of section 2024.06 (and the parties’ failure to specify a later date) is beside the point.

Selene offers no persuasive reasons it should not be compelled to comply with its agreement to continue to the PMK deposition to a later date.  Selene contends that because the court in the interim granted Selene’s motion for summary judgment as to Kirton’s cross-claims Selene should not have to comply with the August 2, 2021 deposition notice.  But Selene (i) remains a plaintiff in the lawsuit, (ii) did not serve objections to the August 2, 2021 notice, and (iii) did not condition its October 19, 2021 agreement to continue the PMK deposition on its summary judgment motion.  Kirton’s motion to compel Selene to comply with the August 2, 2021 deposition notice by appearing for deposition and producing documents is granted.  Selene shall appear for deposition and produce responsive, nonprivileged documents on or before August 31, 2022.

Kirton’s motion to compel Selene to comply with Kirton’s March 28, 2022 deposition notice is denied.  

Kirton’s and Selene’s requests for sanctions are denied.

Kirton to give notice.