Judge: Michael P. Linfield, Case: 22STCV16148, Date: 2022-10-31 Tentative Ruling

Case Number: 22STCV16148    Hearing Date: October 31, 2022    Dept: 34

SUBJECT:         Motion to Compel Production of Documents by Subpoenaed Non-Party Deponent and Request for Sanctions Against Non-Party Deponent

Moving Party:  Plaintiff Morillo Construction, Inc.

Resp. Party:    None

Plaintiff Morillo Construction, Inc.’s Motion is GRANTED. Non-Party Royal Cultivation Corporation shall have 14 days to produce the requested documents. Non-Party Royal Cultivation shall have 30 days to pay Plaintiff Morillo Construction, Inc. sanctions in the amount of $1,575.80.

BACKGROUND:

On May 13, 2022, Plaintiff Morillo Construction, Inc. filed its Complaint against Defendants Royal Construction & Architectural Corporation (“Royal”); Eva Neumann; Wells Fargo Bank, National Association; Western Surety Company and East West Bank.  The Complaint lists causes of action regarding the alleged improper depositing of checks.

On September 12, 2022, Plaintiff filed its Motion to Compel Production of Documents by Subpoenaed Non-Party Deponent and Request for Sanctions (“Motion”).

        No opposition, motion to quash, or other response to the Motion has been filed.

ANALYSIS:

I.           Motion to Compel Production from Non-Party Deponent

A.      Legal Standard

“[T]he process by which a nonparty is required to provide discovery is a deposition subpoena.” (Code Civ. Proc., § 2020.010, subd. (b).)

“A deposition subpoena may command any of the following:

(a)        “Only the attendance and the testimony of the deponent, under Article 3 (commencing with Section 2020.310).

(b)       “Only the production of business records for copying, under Article 4 (commencing with Section 2020.410).

(c)        “The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things, under Article 5 (commencing with Section 2020.510).”

(Code Civ. Proc., § 2020.020, subds. (a)–(c).)

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).)

“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc., § 2025.480, subd. (i).)

B.      Discussion

The allegations underlying this matter regard a joint checks that were ostensibly wrongfully deposited. (Motion, p. 4:3–4.) Plaintiff filed a subpoena on Non-Party Deponent Royal Cultivation Corporation because Plaintiff believes that Defendants transferred the funds to Non-Party Deponent. (Id. at p. 4:5–9; Ex. A.) Plaintiff filed this Motion after Non-Party Deponent “has failed and refused to comply at all with the Subpoena” and Counsel has made several attempts to meet and confer via letter and email correspondence. (Id. at p. 5:15–16; Ex. 1.)

        Plaintiff moves the Court to “enter an order requiring [Non-Party] Deponent to produce with 14 days copies of all documents in its possession that are responsive to the Subpoena, and to pay sanctions to [Plaintiff] in the sum of $2,015.85.” Plaintiff argues: (1) that “[t]his motion is appropriate based on the [Non-Party] Deponent’s failure, after two extensions, to provide any documents”; (2) that “[t]he documents sought by the subpoena are relevant and discoverable”; and (3) that Plaintiff is “entitled to sanctions against [Non-Party Deponent] for $2,015.85.” (Motion, pp. 5:21–22, 6:4, 7:3.)

Non-Party Deponent has not filed an opposition, motion to quash, or other response to the Motion.

The Court finds that Non-Party Deponent has failed to respond to a valid Subpoena. Further, the Court has considered the production sought, which consists of seven requests for production of documents that all appear to relate to the underlying dispute. (Motion, Ex. A, Attach. A.) The Court determines that the production sought is subject to discovery. (Code Civ. Proc., § 2025.480, subd. (i).)  While it is possible that the Deponent could have interposed various objections to these discovery requests, no such objections were made.  

C.      Conclusion

The Court GRANTS Plaintiff’s Motion. Plaintiff shall have 14 days to produce the requested documents.

II.        Sanctions

A.      Legal Standard

“Misuses of the discovery process include, but are not limited to . . . [f]ailing to respond or to submit to an authorized method of discovery.” (Code Civ. Proc., § 2023.010, subd. (d).)

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing . . . may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” (Code Civ. Proc., § 2023.030, subd. (a).)

B.      Discussion

The Court has found that Non-Party Deponent failed to respond or submit the Deposition Subpoena, which is an authorized method of discovery. The Court does not find that Non-Party Deponent acted with substantial justification or that the imposition of sanctions here would be unjust. The Court will order sanctions against Non-Party Deponent.

Plaintiff’s Counsel avers: (1) that he has spent 7.25 hours at $200 per hour preparing the motion and supporting exhibits; (2) that he expects to spend an extra 2 hours in preparing and attending hearing for the motion; and (3) that the cost of the motion has been $165.85 (consisting of $61.60 in reserving the motion, $14.20 in filing fees, and $90.00 for personal service of the subpoena). (Motion, Cosico Decl., ¶ 5.a.–c.)

        The Court awards sanctions against Non-Party Deponent in the amount of $1,575.80 ($1,500.00 in attorney's fees plus costs of $75.80.)

C.      Conclusion

The Court GRANTS Plaintiff’s Request for Sanctions. Non-Party Royal Cultivation shall have 30 days to pay Plaintiff Morillo Construction, Inc. sanctions in the amount of $1,575.80.