Judge: Melvin D. Sandvig, Case: 20CHCV00648, Date: 2022-12-09 Tentative Ruling
Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).
Case Number: 20CHCV00648 Hearing Date: December 9, 2022 Dept: F47
Dept. F47
Date: 12/9/22
Case #20CHCV00648
MOTION TO
COMPEL DEPOSITIONS
Motion filed on 10/11/22.
MOVING PARTY: Plaintiffs Alex Alvarado and Patricia
Alvarado
RESPONDING PARTY: Defendants Michael Meadows and Althea
Meadows
NOTICE: ok
RULING: The motion is granted as set forth below.
This action arises out of a dispute between neighbors,
Plaintiffs Alex Alvarado and Patricia Alvarado (collectively, Plaintiffs) and
Defendants Michael Meadows and Althea Meadows (collectively, Defendants).
On 6/17/22,
Plaintiffs noticed the depositions of Defendant Michael Meadows for 7/14/22 and
Althea Meadows for 7/15/22. (Chimoures
Decl. ¶2, Ex.1, 2). Each deposition
notice included requests for production of documents. Id.
Neither Defendant served objections to the notices. (Chimoures Decl. ¶3.1). During a meet and confer on 7/12/22,
Defendants’ counsel informed Plaintiffs’ counsel that Defendants would not
appear for their depositions. Id. Despite having notice that neither Defendant
would appear for their depositions, Plaintiffs proceeded with the depositions
and took Defendants’ non-appearances. (Id.
at ¶8, Ex.8-9, 12-13).
Thereafter, despite requests for deposition dates,
Plaintiffs failed to provide any dates.
(Chimoures Decl. ¶4, Ex.3).
Plaintiffs’ counsel contends that Defendants’ counsel informed him that
Defendants were refusing to appear for their depositions and, therefore,
Plaintiffs should unilaterally notice the depositions so that they can “do what
[they] need to do.” (Id. at
¶5). On 8/19/22, Plaintiffs then noticed
Defendant Michael Meadows deposition for 9/16/22 and Defendant Althea Meadows
deposition for 9/19/22. (Id. at
¶6, Ex.4, 5). Again, neither Defendant
served objections, appeared for their depositions or produced the requested
documents. (Id. at ¶¶7-8, Ex.6-7,
10-11).
Therefore, on 10/11/22, Plaintiffs filed and served the
instant motion seeking an order compelling the depositions of Defendant Michael
Meadows and Defendant Althea Meadows.
Additionally, Plaintiffs request sanctions against Michael and Althea
Meadows in the amount of $5,100.24.
CCP 2025.450 provides, in relevant part:
“(a) If, after service of a
deposition notice, a party to the action or an officer, director, managing
agent, or employee of a party, or a person designated by an organization that
is a party under Section
2025.230, without having served a valid objection under Section
2025.410, fails to appear for examination, or to proceed with it, or to
produce for inspection any document, electronically
stored information, or tangible thing described in the
deposition notice, the party giving the notice may move for an order compelling
the deponent's attendance and testimony, and the production for inspection of
any document, electronically stored information, or
tangible thing described in the deposition notice.
(b) A motion under subdivision (a)
shall comply with both of the following:
(1) The motion shall set forth
specific facts showing good cause justifying the production for inspection of
any document, electronically stored information, or
tangible thing described in the deposition notice.
(2) The motion shall be accompanied
by a meet and confer declaration under Section
2016.040, or, when the deponent fails to attend the deposition and produce
the documents, electronically stored information, or
things described in the deposition notice, by a declaration stating that the
petitioner has contacted the deponent to inquire about the nonappearance.
. .
.
(g)(1)
If a motion under subdivision (a) is granted, the court shall impose a monetary
sanction under Chapter 7 (commencing with Section
2023.010) in favor of the party who noticed the deposition and against the
deponent or the party with whom the deponent is affiliated, unless the court
finds that the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction unjust.”
There is no dispute that Plaintiffs are entitled to take
Defendants’ depositions or that Plaintiffs properly noticed Defendants’
depositions twice and Defendants, without having served objections, failed to
appear. See CCP 2025.450(a). The opposition to the motion is based on
Defendants’ claim that Plaintiffs failed to properly meet and confer before
filing this motion as is required. See
CCP 2025.450(b)(2). The Court finds such
argument to be without merit. The
evidence establishes that counsel for the parties communicated after
Defendants’ failed to appear for their depositions in July of 2022 with
Plaintiffs’ counsel requesting dates for the depositions. (See Chimoures Decl., Ex.3,
specifically 8/11/22, 8/12/22 and 8/16/22 emails). A month after Plaintiffs failed to appear for
their depositions in July, they had still failed to provide dates they would be
available for their depositions. (Id.,
Ex.3, 8/16/22 depositions). Therefore,
as warned by Plaintiffs’ counsel and as purportedly advised by Defendants’
counsel, Plaintiffs’ unilaterally noticed the depositions for dates in
September. (Id. at ¶6 and 8/12/22
emails). Defendants did not object to
the dates selected by Plaintiffs, but still Plaintiffs failed to appear or
produce the requested documents.
Further, Defendants did not provide dates for their depositions until 10/11/22,
the same day (and seemingly after) the instant motion was filed. (See Reply, p.4:20-p.5:6). Based on the foregoing, the Court finds that
Plaintiffs met their meet and confer obligations before filing and serving the
instant motion.
The reply indicates that “[o]n Veteran’s Day,
[Defendants] agreed to sit for deposition on December 5 and December 19, so
[Plaintiffs] re-noticed them for these days.”
(See Reply, p.5:16-19).
However, Plaintiffs “still want an Order compelling [Defendants’] attendance
as a guarantee that they appear.” Id. However, the reply does not indicate which
Defendant was noticed to appear on which date.
The reply was filed when the hearing on this motion was scheduled for
12/1/22. The hearing was thereafter
continued to 12/9/22 at the request of the moving parties.
At the hearing, the Court will clarify whose deposition
was noticed for 12/5/22 and whether it took place. If so, the request to compel the deposition
of that Defendant will be moot. If not,
the Court will order both Defendants to appear for their depositions within 30
days of this hearing.
In either case, the Court finds that Plaintiffs are also
entitled to sanctions against Defendants.
See CCP 2025.450(g)(1).
However, the Court finds the $5,100.24 in sanctions requested by
Plaintiffs to be excessive. The Court
awards Plaintiffs $2,785.00 in sanctions against Defendants Michael Meadows and
Althea Meadows. The Court finds that
since Plaintiffs’ counsel was aware two days before the scheduled depositions
that Defendants would not be appearing for their July depositions, Plaintiffs
are not entitled to recover for the notices of non-appearance incurred in
relation thereto. (See Chimoures
Decl. ¶¶3, 3.1). Plaintiffs provide no
authority for the proposition that they were required to proceed with the
depositions to preserve their right to the inspection demands free of
objections. (See Motion,
p.5:26-p.6:3). However, the Court finds
that Plaintiffs are entitled to recover the non-appearance fees for the 9/16/22
($525.00) and 9/19/22 ($450.00) depositions.
(Chimoures Decl., Ex.10-11). The
Court also finds that Plaintiffs are entitled to recover for 3 hours of
attorney time for the preparation of the motion and 2 hours of attorney time
for the preparation of the reply and the appearance on the motion at
$350/hour. Additionally, Plaintiffs are
entitled to recover the $60.00 filing fee for the motion. Therefore, Plaintiffs are awarded a total of
$2,785.00 in sanctions against Defendants Michael Meadows and Althea Meadows,
jointly and severally. Sanctions are to
be paid within 30 days.
The Court notes that although Plaintiffs have bookmarked
the exhibits attached to the Chimoures declaration, each exhibit is not
properly described as required (several of the exhibits are described only as
“Blank Page” in the bookmark. See
CRC 3.1110(f)(4). In future filings, the
exhibits must be properly numbered/lettered and described so that the Court can
easily identify which bookmark is linked to which exhibit.
Date: 12/9/22
Case #20CHCV00648
MOTION TO
COMPEL COMPLIANCE WITH SUBPOENA
Motion filed on 9/6/22.
MOVING PARTY: Plaintiffs Alex Alvarado and Patricia
Alvarado
RESPONDING PARTY: Defendant Michael Meadows agent for
service of non-party A Cleaner Pool, Inc.
NOTICE: ok
RULING:
This action arises out of a dispute between neighbors,
Plaintiffs Alex Alvarado and Patricia Alvarado (collectively, Plaintiffs) and Defendants
Michael Meadows and Althea Meadows (collectively, Defendants). One of the complaints against Defendants is
that they are running a business out of their home in violation of the
CC&Rs. (See Complaint
¶¶10-13, 30-40, 54-55, 66-72, 93-102, 106).
Plaintiffs have discovered that the pool cleaning
business operated out of Defendants’ residence is A Cleaner Pool, Inc. (Chimoures Decl.¶¶3-4). On 5/31/22, Plaintiffs served notice of and
the subpoena for A Cleaner Pool, Inc.’s business records on all parties to this
action. (Chimoures Decl. ¶5, Ex.9). On 6/15/22, Plaintiffs personally served the
subpoena on A Cleaner Pool, Inc. via its agent for service, Defendant Michael
Meadows. (Chimoures Decl. ¶6, Ex.10). A Cleaner Pool, Inc. did not serve any
objections or produce any documents.
(Chimoures Decl. ¶7). Counsel for
Plaintiffs met and conferred with Defendants’ counsel before and after the
production date but did not resolve this discovery dispute. (Chimoures Decl. ¶8). Therefore, on 9/6/22, Plaintiffs filed and
served (on counsel for the parties in this action) the instant motion which
seeks an order compelling non-party, A Cleaner Pool, Inc., to comply with
Plaintiffs’ subpoena for business records.
Additionally, Plaintiffs request sanctions against A Cleaner Pool, Inc.
and Defendant Michael Meadows in the amount of $1,785.00. Michael Meadows (agent for service) A Cleaner
Pool, Inc. has opposed the motion.
The gravamen of the opposition is that the motion must be
denied because it was not served on Michael Meadows as agent for service for A
Cleaner Pool, Inc. (although it was served on counsel for Defendants who have
filed this opposition on behalf of Michael Meadows as agent for A Cleaner Pool,
Inc.) and therefore, granting the motion would violate A Cleaner Pool, Inc.’s
due process rights. The opposition also
briefly argues that the motion also fails because there was no proper meet and
confer and because Plaintiffs have failed to show good cause for the
production. See CCP 2016.040; CCP
2025.480(b); Calcor Space Facility, Inc. (1997) 53 CA4th 216, 223-224.
The reply concedes that the motion was not served on
Michael Meadows as agent for service of A Cleaner Pool, Inc. However, Plaintiffs contend that because the motion
was opposed, partially, on the merits, the service defect was waived by A
Cleaner Pool, Inc. See Carlton
(2000) 77 CA4th 690, 697. Alternatively,
Plaintiffs request that the hearing be continued to allow for such service. The Court notes that A Cleaner Pool, Inc.
provides no authority for its contention that the motion must be denied with prejudice
due to the notice issue. (See
Opposition, p.2:3-4).
To ensure that A Cleaner Pool, Inc. has every opportunity
to make all arguments on the merits in opposition to the motion, the Court will
continue the hearing. However, if A
Cleaner Pool, Inc. has no other/further arguments on the merits than those made
in the current opposition (i.e., failure to meet and confer and failure to show
good cause for the production) and is represented at the continued hearing by
Defendants’ counsel, the motion will be granted. The Court finds good cause for the production
of the documents based on the allegations in the complaint regarding
Defendants’ running the business of A Cleaner Pool, Inc. from their residence
in violation of the CC&Rs.
Additionally, the Court finds that Plaintiffs counsel adequately met and
conferred with Defendants’ counsel before filing the instant motion.
Based on the foregoing, A Cleaner Pool, Inc. has the
choice as to whether the hearing is continued or whether the Court grants the
motion at this time and imposes sanctions on A Cleaner Pool, Inc., only, in the
amount of $1,785.00 for the reasonable attorney’s fees and costs incurred in
obtaining its compliance with the subpoena to which it served no
objection.
If the motion is granted at this time, production is due
and sanctions are payable within 30 days.
Additionally, A Cleaner Pool, Inc.’s objections to paragraphs 2, 3, 4, 9
and 10 of the Chimoures declaration are overruled. A Cleaner Pool, Inc.’s objection to paragraph
8 of the Chimoures declaration is sustained.
The Court finds A Cleaner Pool, Inc.’s objections to portions of the
motion are improper and/or merely reiterate the objections to portions of the
Chimoures declaration. As such, the
Court declines to rule on the objections to the motion.
If the hearing is continued, a supplemental opposition is
due to be filed and served at least 9 court days before the continued hearing
date and a supplemental reply is due to be filed and served at least 5 court
days before the continued hearing date.