Judge Melvin D. Sandvig, Case Number: 21CHCV00247, Date: 2023-10-13 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 21CHCV00247, Date: 2023-10-13 Tentative Ruling

Case Number: 21CHCV00247 Hearing Date: November 16, 2023 Dept: F47

Dept. F47

Date: 11/16/23 TRIAL DATE: 1/16/24

Case #21CHCV00247

MOTION TO COMPEL DEPOSITION

Motion filed on 10/13/23.

MOVING PARTY: Plaintiffs Jeffrey Harris and Austin Harris Co-Trustees of the Harris Family Trust

RESPONDING PARTY: Defendants Helene Stahl and Extensions Plus

NOTICE: ok

RELIEF REQUESTED: An order compelling Defendants Helene Stahl and Extensions Plus to produce the Person Most Knowledgeable to testify at deposition. Additionally, Plaintiffs request sanctions be imposed against Defendants and their counsel in the amount $5,517.45.

RULING: The request to compel deposition is granted. The request for sanctions is denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of an alleged breach of a commercial lease and guaranty of the lease. Plaintiffs Jeffrey Harris and Austin Harris, Co-Trustees of the Harris Family Trust (Plaintiffs)

are the landlord and Defendant Extensions Plus (Extensions Plus) is the tenant and Defendant Helene Stahl (Stahl) is the guarantor (collectively, Defendants). Possession of the premises is not at issue as the tenant no longer occupies the premises. Plaintiffs contend that the commercial tenant made unpermitted alterations causing substantial damages to the property and then abandoned the premises with past due rent owing to set up their business in a new location. On 3/30/21, Plaintiffs filed this action for: (1) Breach of Contract, (2) Breach of Implied Covenant of Good Faith and Fair Dealing and (3) Common Count. On 10/22/21, Defendants filed answers to the complaint.

On 9/7/23, Plaintiffs served their Notice of Deposition for Extensions Plus’s person most knowledgeable (PMK) via electronic mail. (Cordero-Sacks Decl., Ex.10). The deposition was scheduled for 10/3/23. Id. On 9/29/23, Defendants served objections to the notice via electronic mail. (Cordero-Sacks Decl., Ex.12). A PMK was not produced for deposition. (Id., Ex.11). Nor did Defendants produce the documents requested in the deposition notice. (Cordero-Sacks Decl.). The parties met and conferred regarding the deposition which was rescheduled for 10/10/23. (Cordero-Sacks Decl., Ex.15). Again, Defendants did not produce a PMK for deposition. (Id., Ex.13).

On 10/13/23, Plaintiffs filed and served the instant motion seeking an order compelling Defendants to produce the PMK to testify at deposition. Additionally, Plaintiffs request sanctions be imposed against Defendants and their counsel in the amount $5,517.45. On 11/3/23, Defendants filed an opposition to the motion. The proof of service attached to the opposition indicates that it was served by electronic service on 11/2/23. On 11/8/23, Plaintiffs filed and served a reply to the opposition. Plaintiffs contend the opposition was not timely and, therefore, should not be considered.

The Court considered the opposition in ruling on the motion. CRC 3.1300(d).

ANALYSIS

Plaintiffs properly served the subject deposition notice on 9/7/23 by electronic mail. (Cordero-Sacks Decl., Ex.10). Such service is well beyond the 10 days’ notice required for the 10/3/23 deposition date. See CCP 2025.270(a).

CCP 2025.410 provides in relevant part:

“(a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.

(b) If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition. Any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one.” (emphasis added)

Despite having more than 20 days’ notice, Defendants did not serve objections to the deposition notice until 9/29/23 via electronic service. (Cordero-Sacks Decl., Ex.12). As such, Defendants failed to promptly serve their objections to the deposition notice. Additionally, the service of the objections on 9/29/23 did not comply with the minimum 3-day notice requirement due to the electronic service of same.

CCP 1010.6(a)(3) provides, in relevant part:

“(A) If a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of that document is deemed complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent.

(B) Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days. . .” (emphasis added).

Defendants provide no authority to support their contention that “[a]lthough E-service extends the notice to the other party by two court days, that does not mean that the party serving the notice must account for two extra court days.” (See Opposition, p.4:20-21). More importantly, Defendants’ interpretation of CCP 1010.6(a)(3) does not make sense and contradicts the express language in the statute. Under Defendants’ interpretation, Plaintiffs’ time to respond to the objections would have been extended to 10/3/23, the day the deposition was scheduled to occur. As noted above, the statute provides that electronic service extends any period of notice by 2 court days. The fact that service may have been complete at the time of the electronic transmission does not matter as mail service is complete at the time of deposit and requires an extra five calendar days. See CCP 1005(b); CCP 1013(a), (e).

As such, Defendants did not timely object to the deposition notice and, therefore, waived any error or irregularity in same. CCP 2025.410(a).

Even if the objections had been timely served, they lack merit. The opposition concedes that Helene Stahl is the only surviving individual who would qualify as the PMK for Extensions Plus. (See Opposition, p.2:24-25, p.5:28-p.6:2, p.6:7-8). It is not clear if Defendants are contending that since Helene Stahl was already deposed, Plaintiffs are precluded from deposing her again as the PMK of Extensions Plus. (See Opposition, p.5:28-p.6:1 whereat Defendants state that “the individuals who could have testified to this are Helene Stahl – whom Plaintiffs have already deposed – or Terrie Fields – who is dead and was Extensions Plus’ former accountant;” Opposition, p.6:7-8; Ruano Decl. ¶, Ex.H). Defendants provide no authority for the proposition that Plaintiffs are precluded from deposing Helene Stahl as Extensions Plus’s PMK because Plaintiffs have already deposed Ms. Stahl her individual capacity.

Defendants’ untimely objections to the deposition notice did not leave Plaintiffs sufficient time to meet and confer before the 10/3/23 deposition date. Thereafter, Plaintiffs made efforts to informally resolve the issues presented by this motion. (Cordero-Saks Decl., Ex.15). Despite such efforts and their admission that Helen Stahl is the only possible PMK, Defendants still contend that there is no witness they can produce. (See Opposition, p.2:24-25, p.5:28-p.6:2, p.6:7-8, p.6:15-16).

CCP 2023.040 provides:

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

Here, the notice of motion indicates that monetary sanctions are sought against “Defendants Helene Stahl and Extensions Plus and their Counsel.” (See Notice of Motion, p.2:6-8). Plaintiffs have not identified the attorney at the firm representing Defendants against whom sanctions are sought. Additionally, Plaintiffs do not explain why sanctions are warranted against Defendant Helene Stahl, individually, when the deposition notice was for Defendant Extension Plus’s PMK. Based on the foregoing, Plaintiffs’ request for sanctions is denied.

CONCLUSION

The request to compel deposition is granted. Defendant Extensions Plus’s is ordered to produce its PMK for deposition and produce documents as set forth in the deposition notice within 14 days. Sanctions are denied.

Pursuant to CRC 2.30(b) and (c), the Court will set an Order to Show Cause as to why sanctions should not be imposed on Defendants Helene Stahl and Extensions Plus and/or their counsel, Goldberg & Associates, for the repeated failure to comply with CRC 3.1110(f)(4). The Court has noted Defendants’ failure to comply with the requirement to electronically bookmark their exhibits multiple times and have warned the parties that failure to comply with the requirement may result in the imposition of sanctions. (See 9/17/21 Minute Order, pp.1-2; 3/22/22 Minute Order, p.1; 5/13/22 Minute Order, pp.1-2; 10/13/23 Minute Order, p.4). Despite the repeated warnings, Defendants have, again, failed to electronically bookmark the exhibits attached to their opposition to the instant motion.