Judge: Melvin D. Sandvig, Case: 20CHCV00648, Date: 2023-04-27 Tentative Ruling
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Case Number: 20CHCV00648 Hearing Date: April 27, 2023 Dept: F47
Dept. F47
Date: 4/27/23 TRIAL DATE: 7/10/23
Case #20CHCV00648
MOTION FOR PROTECTIVE ORDER
Motion filed on 1/18/23.
MOVING PARTY: Defendants Michael Meadows and Althea Meadows
RESPONDING PARTY: Plaintiffs Alex Alvarado and Patricia Alvarado
NOTICE: ok
RULING: The motion is denied. Plaintiffs’ request for sanctions is granted in the amount of $2,000.00, payable within 30 days.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of disputes between neighbors. Plaintiffs Alex Alvarado and Patricia Alvarado (Plaintiffs) and Defendants Michael Meadows and Althea Meadows (the Meadows/Defendants) own neighboring properties in a common interest development managed by Defendant Ridgeview Saugus Homeowners Association (HOA) and governed by a Declaration of Covenants, Conditions and Restrictions (CC&Rs). On 10/22/20, Plaintiffs filed this action against Defendants and the HOA for: (1) Breach of Governing Documents, (2) Nuisance, (3) Continuing Trespass, (4) Intentional Interference With Economic Relations, (5) Breach of Fiduciary Duty, (6) Negligence and (7) Declaratory Relief.
On 12/5/22, the first session of Mr. Meadows’ deposition took place via Zoom. (See Yoakum Decl. ¶2). On 12/21/22, this Court granted Plaintiffs’ motion to compel the depositions of Defendants and ordered “[t]o the extent either deposition has not yet taken place, it is ordered to proceed within 30 days of this hearing.” (See 12/21/22 Minute Order, p.4). On 1/3/23, based on Mr. Meadows’ availability, Defendants’ counsel asked Plaintiffs’ counsel if the second session Mr. Meadows’ deposition could take place on a Saturday or Sunday. (Yoakum Decl., Ex.B). Within the hour, Plaintiffs’ counsel informed Defendants’ counsel that the depositions of both Defendants would need to be taken during the work week and Plaintiffs were planning on noticing the depositions for 1/18/23 and 1/20/23, if they did not hear otherwise from defense counsel. Id. In response, Defendants’ counsel stated: “I fully understand/ Never hurts to ask”. Id. On 1/4/23, via electronic service, Plaintiffs’ noticed Mr. Meadows deposition for 1/20/23 at 10:00 a.m. via Zoom. (Id., Ex.C). On 1/10/23, Defendants’ counsel emailed Plaintiffs’ counsel regarding the length of the second session of Mr. Meadows’ deposition (defense counsel believed it should be limited to 2 hours), the time the Defendant HOA would need to depose Mr. Meadows and other discovery issues unrelated to the deposition. (Id., Ex.D). On 1/11/23, Plaintiff’s counsel responded, with regard to Mr. Meadows’ deposition, Plaintiffs’ counsel indicated that he believed that Plaintiffs could complete Mr. Meadows’ deposition in 3 hours. Id. On 1/11/13, Defendants’ counsel responded that he would check with Mr. Meadows regarding the 3 hours to complete the deposition, asked if the deposition could begin at 8:00 a.m. which would help the deposition proceed on a Friday indicating Mr. Meadows was “having issues with his new work schedule and as a self employed person, he needs to make money to survive.” Id. On 1/11/23, Plaintiffs’ counsel agreed to begin the deposition at 8:00 a.m, if a new Deposition Notice would not be required. (Id. at Ex.F). On 1/13/23, Mr. Meadows served an objection to the Deposition Notice claiming that it was unilaterally set and Mr. Meadows is not available on that date and that Mr. Meadows had already sat for 5 hours of testimony and therefore would only submit to an additional 2 hours of testimony pursuant to CCP 2025.290. (Id., Ex.E).
On 1/18/23, Defendants filed and served the instant motion seeking a protective order against the deposition of Michael Meadows and staying the taking of the deposition until this motion is heard. Specifically, Defendants request that an order be issued against compelling Mr. Meadows’ to appear for his deposition on a weekday (Monday-Friday). Or, issue an order allowing Mr. Meadows’ deposition to be conducted on a Saturday, or any other date that falls on a weekend and limit the conduct of the deposition to 2 hours. Additionally, Defendants request sanctions against Plaintiffs and their counsel, JC Chimoures, Esq., and Lubin Pham + Caplin LLP in the amount of $900.00. Plaintiffs have opposed the motion and request sanctions in the amount of $3,040.00 against Defendants and their counsel of record, Robert M. Yoakum. Defendants have filed a reply to the opposition.
ANALYSIS
CCP 2025.420 provides, in relevant part:
(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.
(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:
(1) That the deposition not be taken at all.
(2) That the deposition be taken at a different time.
. . .
(5) That the deposition be taken only on certain specified terms and conditions.
. . .
(g) If the motion for a protective order is denied in whole or in part, the court may order that the deponent provide or permit the discovery against which protection was sought on those terms and conditions that are just.
(h) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
. . .
Contrary to the assertion in Defendants’ Objection to Mr. Meadows’ Deposition, the Court does not find that the deposition was unilaterally set by Plaintiffs. As noted above, before the deposition was scheduled, counsel for the parties communicated wherein Defendants’ counsel requested that Mr. Meadows’ deposition take place on a weekend, Plaintiffs’ counsel stated that was not possible and the depositions would be noticed for 1/18/23 and 1/20/23, unless Plaintiffs’ counsel heard otherwise, and Defendants’ counsel stating he understood. (Yoakum Decl., Ex.B). Thereafter, counsel for the parties further discussed the Friday, 1/20/23, deposition (the last day which would comply with this Court’s 12/21/23 ruling) with counsel agreeing to an 8:00 a.m. start time, rather than 10:00 a.m. Id.
Contrary to the assertion in the opposition, the Court does not find that the Discovery Act does not permit weekend depositions. Rather, the Discovery Act presumes that discovery dates and/or deadlines will occur on “weekdays” which are not holidays. See 2016.060; CRC 1.10(a), (b). However, that does not preclude the parties from agreeing to a deposition taking place on a weekend, but such an agreement would be strictly voluntary. The foregoing is supported by Defendants’ counsel’s response to Plaintiffs’ counsel’s refusal to hold the deposition on a weekend: “JC I fully understand/ Never hurts to ask.” (Yoakum Decl., Ex.B).
Mr. Meadows has failed to show that requiring his deposition to proceed on a weekday, as opposed to a Saturday or Sunday, will cause him “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” CCP 2025.420(b). The fact that Mr. Meadows is self-employed with business hours Monday to Friday from 8:00 a.m. to 5:00 p.m. does not necessarily support his contention that he would lose income if he had to take off work on a Friday for his deposition. (See M. Meadows Decl.). For example, Mr. Meadows does not state that it would be impossible to reschedule his Friday appointments to Saturday or some other day for one week. The Court also notes that at the first session of his deposition, Mr. Meadows referenced his technicians which seemingly relate to his business. (See Chimoures Decl., Ex.4, p.52:7-9). The foregoing seems to imply that Mr. Meadows has employees or technicians that work for/with him. Therefore, it is not clear why they could not handle business during the time the second session of Mr. Meadows’ deposition is conducted on a weekday. Even if such rescheduling could not occur, most deponents who work Monday through Friday, 8-5, jobs have to take time off of work in order to be deposed and lose pay or use paid time off, if available. The motion fails to establish that Mr. Meadows “work week” should take priority over the “work week” of others involved (i.e., the attorneys and court reporter). The Court further notes that during the meet and confer process, counsel for Defendant HOA also objected to the taking of Mr. Meadows deposition on a weekend. (See Yoakum Decl., Ex.F – 1/13/23 email from David Bernardoni). Further, if the matter proceeds to trial, presumably Mr. Meadows will testify at some point and Court will not be held on the weekend to accommodate Mr. Meadows’ work schedule.
Mr. Meadows has also failed to provide sufficient evidence to limit the second session of his deposition to 2 hours. The only evidence offered in the motion is the statement by defense counsel that the first session “took place via zoom video conference for about five (5) hours.” (Yoakum Decl. ¶2). However, excerpts from the first session of Mr. Meadows’ deposition show that he was being less than cooperative and wasting time. (See Chimoures Decl. ¶13, Ex.4).
CONCLUSION
The motion is denied. The Court finds that Plaintiffs are entitled to an award of sanctions against Defendant Michael Meadows and his counsel, Robert Yoakum, in the amount of $2,000.00 calculated at 4 hours to prepare the opposition and 1 hour to review the reply and appear at the hearing multiplied by $400/hour. See CCP 2025.420(h).
Defendant Michael Meadows is ordered to appear for the second session of his deposition on a weekday (Monday – Friday) within the next 15 days.
Date: 4/27/23
TRIAL DATE: 7/10/23
Case #20CHCV00648
MOTION FOR EVIDENTIARY SANCTIONS &
MONETARY SANCTIONS,
OR, IN THE ALTERNATIVE,
TO COMPEL DEPOSITION
Motion filed on 3/13/23.
MOVING PARTY: Plaintiffs Alex Alvarado and Patricia
Alvarado
RESPONDING PARTY: Defendants Michael Meadows and Althea
Meadows
NOTICE: ok
Additionally,
Plaintiffs request sanctions in the amount of $1,500.00 under CCP 177.5, against
Mr. Meadows payable to the Court for his failure to obey this Court’s Orders
and Plaintiffs’ reasonable attorneys’ fees and costs for having to bring this
motion and for Plaintiffs’ court reporting costs in the amount of $4,430.00,
against Mr. Meadows and his counsel of record, Robert Yoakum.
RULING: The
alternative request to compel deposition is granted. Both Plaintiffs’ and Defendants’ requests for
sanctions are denied.
This action arises out of disputes between
neighbors. Plaintiffs Alex Alvarado and
Patricia Alvarado (Plaintiffs) and Defendants Michael Meadows and Althea
Meadows (the Meadows/Defendants) own neighboring properties in a common
interest development managed by Defendant Ridgeview Saugus Homeowners
Association (HOA) and governed by a Declaration of Covenants, Conditions and
Restrictions (CC&Rs). On 10/22/20,
Plaintiffs filed this action against Defendants and the HOA for: (1) Breach of
Governing Documents, (2) Nuisance, (3) Continuing Trespass, (4) Intentional Interference
With Economic Relations, (5) Breach of Fiduciary Duty, (6) Negligence and (7)
Declaratory Relief.
On 12/21/22, this Court granted Plaintiffs’ motion to
compel the depositions of Defendants and ordered “[t]o the extent either
deposition has not yet taken place, it is ordered to proceed within 30 days of
this hearing.” (See 12/21/22
Minute Order, p.4). Thereafter, counsel
for the parties met and conferred regarding deposition dates. As set forth in the accompanying ruling on
Defendants’ Motion for Protective Order, Defendants’ counsel requested that Mr.
Meadows’ deposition take place on a Saturday.
When counsel for Plaintiffs and the HOA objected to taking the
deposition on a Saturday, it was noticed for 1/20/23. Defendants objected to the deposition notice
and filed a Motion for Protective Order which is scheduled to be heard on the
same date as this motion. Thereafter, on
3/13/23, Plaintiffs filed and served the instant motion seeking an order: (1)
imposing evidentiary sanctions against Mr. Meadows, excluding him from
introducing oral evidence at trial as to any claim or defense; or
alternatively, (2) compelling Mr. Meadows to sit for his deposition on a
weekday within the next 15 days. Additionally,
Plaintiffs request sanctions in the amount of $1,500.00 under CCP 177.5,
against Mr. Meadows payable to the Court for his failure to obey this Court’s
Orders and Plaintiffs’ reasonable attorneys’ fees and costs for having to bring
this motion and for Plaintiffs’ court reporting costs in the amount of
$4,430.00, against Mr. Meadows and his counsel of record, Robert Yoakum. Defendants have opposed the motion and
requested sanctions against Plaintiffs.
Plaintiffs have filed a reply to the opposition.
The Court declines to impose the evidentiary sanctions
requested by Plaintiffs at this time.
However, if Mr. Meadows fails to appear for the second session of his
deposition as ordered, Plaintiffs may renew their request for such sanctions
via a newly filed motion.
As noted in the accompanying ruling on the Motion for
Protective Order, Mr. Meadows is ordered
to appear for the second session of his deposition on a weekday (Monday –
Friday) within the next 15 business days.
Similarly, Defendants have still failed to provide sufficient evidence
to limit the second session of Mr. Meadows’ deposition to 2 hours. The Court does not find that the deposition
testimony quoted in the opposition to the instant motion shows that Plaintiffs’
counsel wasted time. Rather, Mr. Meadows’
response to the question regarding his favorite brands of beer (a question which
Plaintiffs’ counsel explained the relevance of) indicates Mr. Meadows was wasting time (i.e.,
counsel did not ask Mr. Meadows to explain how he likes to drink Modelo beer,
where one can purchase salt, how too much salt can cause the beer to foam,
etc.). (See Yoakum Decl., Ex.1,
p.30:13-p.32:25).
The Court also declines to award Plaintiffs additional
monetary sanctions in relation to the instant motion as the relief obtained
(the ordering of Mr. Meadows to appear for the second session of his
deposition) was resolved in the motion for protective order. For the same reason, the Court declines to
impose sanctions on Mr. Meadows pursuant to CCP 177.5. However, since Plaintiffs could not have
sought the evidentiary sanctions requested in this motion via the opposition to
the motion for protective order, the Court finds that Plaintiffs had
substantial justification to bring the instant motion. Therefore, Defendants’ request for sanctions
is also denied.
The Court notes that although Plaintiffs’ counsel has
bookmarked the exhibits attached to his declaration filed in support of the
motion, the bookmark titles do not identify the exhibit numbers or briefly
describe the exhibit as required. See
CRC 3.1110(f)(4). Counsel for the
parties are reminded that failure to follow procedural and/or technical rules
may result in matters being continued so that papers can be properly submitted,
papers not being considered and/or the imposition of sanctions.