Judge: Michael E. Whitaker, Case: 23SMCV04029, Date: 2024-10-03 Tentative Ruling

Case Number: 23SMCV04029    Hearing Date: October 3, 2024    Dept: 207

TENTATIVE RULING

BACKGROUND

This legal malpractice action arises from allegations that Defendants Negrin LLP and Matthew Negrin (“Defendants”) improperly handled an unlawful detainer case on behalf of landlord in the underlying unlawful detainer case and Plaintiff in this action, 5916 S Village Dr LLC (“Plaintiff”). 

Plaintiff now moves for monetary sanctions against Defendant Negrin LLP and its counsel of record, Kaufman Dolowich LLP for failing to submit to an authorized method of discovery under Code of Civil Procedure sections 2023.030, 2023.010, and 2025.450 and for an order compelling the depositions of Negrin LLP’s employees Matthew Negrin and Amy Gershoony pursuant to Code of Civil Procedure section 2025.450.

Defendant Negrin LLP opposes the motion and Plaintiff replies.

LEGAL STANDARDS

            Motion to Compel

“The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise.  In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”  (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)  

            Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent’s attendance and testimony. (Code Civ. Proc., § 2025.450, subd. (a).)

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

Sanctions

“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.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

ANALYSIS

Plaintiff has not established that Defendant Negrin LLP or the deponents failed to appear for deposition or failed to submit to an authorized method of discovery.  Rather, Plaintiff has outlined a series of discussions about potential dates for scheduling the depositions.  After Defendant committed to October 25 for Matthew Negrin’s deposition, Plaintiff filed the instant motion.  But Plaintiff has not demonstrated that a deposition was formally scheduled and the deponent failed to respond, object, or appear.

In opposition, Defendant points out that there is an IDC currently scheduled for October 21, 2024 regarding the depositions in this matter, and that Defendant already agreed for Matthew Negrin to sit for deposition on October 25.  Defendant also offers the alternative date of October 10, 2024 for Matthew Negrin’s deposition and October 15, 2024 for Amy Gershoony’s deposition, both of which dates Plaintiff suggested in the motion.

As such, because Plaintiff has not demonstrated that Matthew Negrin or Amy Gershoony failed to respond, object, or appear for a noticed deposition, and because there are currently three mutually agreeable dates for the depositions, neither an order compelling their attendance nor an order for monetary sanctions is yet appropriate.

CONCLUSION AND ORDERS

Therefore, the Court denies Plaintiff’s Motion for Sanctions and to Compel the depositions of Matthew Negrin and Amy Gershoony.

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

DATED:  October 3, 2024                                         ___________________________

                                                                                    Michael E. Whitaker

                                                                              Judge of the Superior Court