Judge: Michael E. Whitaker, Case: 20SMUD00869, Date: 2024-12-10 Tentative Ruling

Case Number: 20SMUD00869    Hearing Date: December 10, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

This case arises from a dispute over real property.  Plaintiff American Financial Center alleges Defendants Birgitta Lauren (“Lauren”) and Erik K. Yohan AKA Eric Knipe (“Knipe”) (collectively, “Defendants”) unlawfully continued to occupy the subject condominium following foreclosure and sale of the property.  With possession no longer at issue, Plaintiff’s operative complaint seeks damages.

Defendants have also brought a cross-complaint against Plaintiff and Mark Crittenden aka Mark Afincen (“Cross-Defendant”), alleging that they fraudulently acquired an interest in the subject property upon which they initiated the foreclosure proceedings. 

Plaintiff now moves to compel Lauren’s deposition and for monetary sanctions.  The motion is unopposed.

ANALYSIS

1.     Deposition

“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.” (Code Civ. Proc., § 2025.450, subd. (a).)

Here, on December 21, 2023, Plaintiff electronically served Lauren’s then-counsel a Notice of Deposition, scheduled for January 30, 2024, to which Plaintiff was to produce seven categories of documents.  (Exs. A-B to Domenico Decl.)  That same day, counsel replied that she was unavailable that day, but she would be available in February.  (Ex. B to Domenico Decl.)

The following day, on December 22, the parties agreed to hold the deposition on February 12, 2024.  (Ex. C to Domenico Decl.)  On December 28, Plaintiff served counsel an amended notice of deposition, reflecting the February 12 deposition date.  (Ex. D to Domenico Decl.)

On February 12, 2024, neither Lauren nor Lauren’s then-counsel appeared for the scheduled deposition.  (Domenico Decl. at ¶ 8.)  When Plaintiff’s counsel emailed Lauren’s counsel to follow up, Lauren’s counsel indicated they had sent an objection to the notice of deposition on the grounds that Lauren’s counsel had a pending motion to be relieved as counsel due to a conflict of interest and counsel could not proceed with the deposition.  (Ex. F to Domenico Decl.)

Lauren’s counsel subsequently emailed the referenced Objection to Plaintiff’s Notice of Deposition, dated February 5, 2024.  (Ex. G to Domenico Decl.)  The Objection also finally arrived by mail on February 17, 2024.  (Domenico Decl. at ¶ 13.)

Lauren’s counsel’s motion to be relieved was granted on April 4, 2024.  The parties attended an informal discovery conference (“IDC”) on April 9, 2024.  Subsequently, the parties mutually agreed to a new deposition date of May 15, 2024.  (Domenico Decl. ¶ 15.)  At 9:50 p.m. on the evening of May 14, Lauren sent Plaintiff’s counsel an email indicating she was unable to attend the deposition due to an unforeseen illness.  (Domenico Decl. at ¶ 16 and Ex. J.)

On May 23, 2024, Lauren sent Plaintiff’s counsel a doctor’s letter excusing Lauren from any work for 90 days due to her spinal health.  (Domenico Decl. at ¶ 18 and Ex. K.)

Although Plaintiff has demonstrated that Lauren did not attend the deposition as scheduled, either on February 12 or on May 15, Lauren did provide compelling reasons why the depositions could not proceed. 

For the February 12th date, Lauren’s counsel apparently served objections regarding the conflict of interest between counsel and client, preventing counsel from being able to effectively represent Lauren at the deposition.  Although Plaintiff’s counsel did not actually receive that objection in advance of the scheduled deposition, there is no indication that Lauren’s counsel did not send it on or about February 5, as dated.

Regarding the May 15 date, Lauren herself apparently became ill, as confirmed by a doctor’s note dated May 14.  Although Lauren did not notify counsel of the illness until the evening of May 14, Lauren herself did not apparently have the diagnosis until May 14th.  Further, Lauren presented a doctor’s note excusing her from work for 90 days to protect her spinal health. 

Plaintiff has not produced any subsequent attempted communications or scheduled depositions that were not properly objected to or excused.  Therefore, the Court finds Plaintiff’s motion to compel premature.

2.     Monetary Sanctions

Plaintiff also requests monetary sanctions in connection with the motion to compel deposition.  Because the Court denies Plaintiff’s motion as premature, the Court similarly denies Plaintiff’s request for monetary sanctions.     

CONCLUSION AND ORDER

For the foregoing reasons, the Court denies without prejudice Plaintiff’s motion to compel Lauren’s deposition as premature. 

Plaintiff shall provide notice of the Court’s order and file the notice with a proof of service forthwith. 

DATED:  December 10, 2024                                                ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court