Judge Michael P. Linfield, Case Number: 22STCV39007, Date: 2023-10-12 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV39007, Date: 2023-10-12 Tentative Ruling

Case Number: 22STCV39007 Hearing Date: February 20, 2024 Dept: 34

SUBJECT: Motion to Compel Attendance at Deposition & Document Production, Request for Sanctions

Moving Party: Plaintiff Pranav Popat

Resp. Party: Defendant Hardik B. Kapadia

The Motion is GRANTED. Defendant shall make himself available for deposition within seven (7) days of the issuance of this Order.

Monetary sanctions are AWARDED in favor of Plaintiff and against Defendant and Defense Counsel, jointly and severally, in the total amount of $2,285.70.

Evidentiary sanctions are DENIED as unripe.

PRELIMINARY COMMENTS:

Plaintiff claims that the amount in controversy is only $17,000. The case is scheduled for a 4-hour court trial. Yet this is at least the fourth motion heard by the Court. The Court has now issued sanctions against Defendant of over $4,000; counsel have probably spent $20,000 in attorney's fees collectively since this case was filed 14 months ago.

This is absurd. Counsel would be doing their clients a service by expeditiously resolving this matter.

BACKGROUND:

On December 15, 2022, Plaintiff Pranav Popat filed his Complaint against Defendant Hardik B. Kapadia on a cause of action for breach of contract.

On March 27, 2023, Plaintiff filed his First Amended Complaint (FAC).

On June 8, 2023, the Court sustained Defendant’s Demurrer to the second and third causes of action in the FAC, without leave to amend.

On June 16, 2023, Defendant filed his Answer to the FAC.

On January 22, 2024, Plaintiff filed his Motion to Compel Attendance at Deposition & Document Production, Request for Sanctions (“Motion”). In support of his Motion, Plaintiff concurrently filed Declaration of Justin J. Eballar.

On February 7, 2024, Defendant filed his Opposition.

On February 8, 2024, the Court ordered: (1) that the discovery cutoff date be continued to February 20, 2024; (2) that a supplemental opposition may be served by February 12, 2024 and filed by February 13, 2024; and (3) that a reply is to be filed and served by February 15, 2024.

On February 13, 2024, Defendant filed his Supplemental Brief.

On February 15, 2024, Plaintiff filed his Reply.

ANALYSIS:

I. Legal Standard

“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).)

“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).)

II. Discussion

A. The Deposition and Documents Request

1. The Parties’ Arguments

Plaintiff moves the Court to: (1) compel Defendant to attend his deposition within one week of the hearing on the Motion; (2) issue monetary sanctions on Defendant and Defense Counsel; and (3) if Defendant does not appear for his deposition prior to the start of trial, issue an evidentiary sanction barring Defendant from testifying or authenticating any documents at trial. (Motion, p. 10:4–13.)

Plaintiff’s Counsel declares that Defendant’s deposition was first noticed on October 2, 2023 for October 5, 2023. (Decl. Eballar, ¶ 12 and Exh. 4.) According to Plaintiff’s Counsel, despite further efforts to resolve this issue (including additional notices for the deposition), Defendant has not made himself available for deposition. (Id. at ¶¶ 3–14.)

Defendant opposes the Motion, initially arguing: (1) that this is actually a limited court case; (2) that the Motion is time-barred; (3) that Plaintiff did not prepare and/or serve a proper notice of deposition; and (4) that Plaintiff’s Counsel refused good faith efforts by Defense Counsel to reschedule the deposition date. (Opposition, pp. 3:15–16, 4:1–2, 5:1–2, 5:11–12.)

In his Supplemental Brief, Defendant reiterates his arguments.

In his Reply, Plaintiff argues: (1) that the deposition was properly noticed; (2) that Defendant waived his opportunity to object or quash notice of deposition irregularities; and (3) that Plaintiff has met his burden in establishing that Defendant refused to appear for a duly-noticed deposition. (Reply, pp. 2:25, 3:16–17, 4:4–5.)

2. Reclassification of the Case

a. Legal Standard

“The parties to the action or proceeding may stipulate to reclassification of the case within the time allowed to respond to the initial pleading.” (Code Civ. Proc., § 403.050, subd. (a).)

“The plaintiff, cross-complainant, or petitioner may file a motion for reclassification within the time allowed for that party to amend the initial pleading. The defendant or cross-defendant may file a motion for reclassification within the time allowed for that party to respond to the initial pleading. The court, on its own motion, may reclassify a case at any time. A motion for reclassification does not extend the moving party’s time to amend or answer or otherwise respond. The court shall grant the motion and enter an order for reclassification, regardless of any fault or lack of fault, if the case has been classified in an incorrect jurisdictional classification.” (Code Civ. Proc., § 403.040, subd. (a).)

“If a party files a motion for reclassification after the time for that party to amend that party’s initial pleading or to respond to a complaint, cross-complaint, or other initial pleading, the court shall grant the motion and enter an order for reclassification only if both of the following conditions are satisfied: (1) The case is incorrectly classified. (2) The moving party shows good cause for not seeking reclassification earlier.” (Code Civ. Proc., § 403.040, subd. (b).)

“Nothing in this section shall be construed to require the superior court to reclassify an action or proceeding because the judgment to be rendered, as determined at the trial or hearing, is one that might have been rendered in a limited civil case.” (Code Civ. Proc., § 403.040, subd. (e).)

b. Discussion

Defendant argues that the Motion should not be considered because this is actually a limited case (as opposed to an unlimited case). (Opposition, p. 3:15–16.)

The Court disagrees with this argument.

The Parties have not stipulated to a reclassification of this case. (Code Civ. Proc., § 403.050, subd. (a).) Further, neither Plaintiff nor Defendant have moved for a reclassification of this case. (Code Civ. Proc., § 403.040, subds. (a), (b).) Given that trial is scheduled for less than one month away, it would be a waste of judicial resources to reclassify this case at this time. The Court declines to exercise its discretion to reclassify this case sua sponte. (Ibid.) Even if the ultimate judgment is one that might have been rendered in a limited civil case, it would not be necessary to do reclassify the case. (Code Civ. Proc., § 403.040, subd. (e).)

This Motion does not involve reclassification. Defendant’s argument that the case should be reclassified is irrelevant to the adjudication of this Motion. Unless and until a Party moves for reclassification and such a motion is granted, this case will continue as an unlimited case.

3. The Timing of the Motion

a. Legal Standard

“Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).)

“On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2024.050, subd. (a).)

b. Discussion

On February 8, 2024, the Court granted Plaintiff’s Ex Parte Application dated February 6, 2024. In doing so, pursuant to Plaintiff’s request, the Court extended the discovery cutoff date until February 20, 2024. Thus, this Motion, which is being heard on February 20, 2024, is timely.

4. Electronic Service of the Deposition Notice

a. Legal Standard

“When a document may be served by mail, express mail, overnight delivery, or fax transmission, the document may be served electronically under Code of Civil Procedure section 1010.6, Penal Code section 690.5, and the rules in this chapter. For purposes of electronic service made pursuant to Penal Code section 690.5, express consent to electronic service is required.” (Cal. Rules of Court, rule 2.251(a).)

“For purposes of this section: (A) ‘Electronic service’ means service of a document, on a person, by either electronic transmission or electronic notification. Electronic service may be performed directly by a person, including a party, by a person’s agent, including the person’s attorney, or through an electronic filing service provider, and by a court.” (Code Civ. Proc., § 1010.6, subd. (a)(1)(A).)

“A document may be served electronically in an action filed with the court as provided in this section, in accordance with rules adopted pursuant to subdivision (h).” (Code Civ. Proc., § 1010.6, subd. (a).)

“If a document is required to be served by certified or registered mail, electronic service of the document is not authorized.” (Code Civ. Proc., § 1010.6, subd. (a)(2).)

“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.” (Code Civ. Proc., § 1010.6, subd. (a)(3)(A).)

b. Discussion

Here, Plaintiff electronically served the deposition notices. The question is whether electronic service of the deposition notice is allowed.

“The defendant may serve a deposition notice without leave of court at any time after that defendant has been served or has appeared in the action, whichever occurs first.” (Code Civ. Proc., § 2025.210, subd. (a).)

“A party desiring to take the oral deposition of any person shall give notice in writing. . . .” (Code Civ. Proc., § 2025.220, subd. (a).)

The deposition notice statute does not require that the deposition notice be served by certified or registered mail. (Code Civ. Proc., §§ 1010.6, subd. (a)(2); 2025.220, subd. (a).) Rather, the deposition notice statute only requires that the notice be “in writing.” (Code Civ. Proc., § 2025.220, subd. (a).) In addition to the fact that “in writing” itself presumes written electronic service, electronic service is allowed for deposition notices because it is undisputed that “in writing” includes mail, express mail, overnight delivery, and facsimile transmissions. (Code Civ. Proc., § 1010.6, subd. (a)(3)(A); Cal. Rules of Court, rule 2.251(a).)

5. Good Faith Efforts

The Court has reviewed the evidence submitted by the Parties.

The Court finds that Plaintiff engaged in a good faith effort to meet and confer as to the deposition date.

Ultimately, Plaintiff has a right to depose Defendant, yet Defendant has not made himself available for the deposition despite more than adequate meeting and conferring. The Court has not been presented with a sufficient reason for why Defendant has not yet made himself available for the deposition.

The Court GRANTS the Motion. Defendant shall make himself available for deposition within seven (7) days of the issuance of this Order.

B. Sanctions

Plaintiff requests sanctions. Specifically, Plaintiff requests monetary sanctions now (against Defendant and Defense Counsel) and evidentiary sanctions later (if Defendant does not appear for a deposition before trial). (Motion, p. 10:6–13.)

At this time, the Court denies as unripe Plaintiff’s request for evidentiary sanctions. If Defendant does not appear for a deposition within seven days of the issuance of this Order, Plaintiff may file a motion in limine to exclude Defendant’s testimony and authentication of documents.

As to monetary sanctions, the Court does not have any evidence before it that would indicate Defendant timely made himself available for deposition. Further, the Court does not have any evidence before it that would indicate there is substantial justification or other circumstances that would make the imposition of a sanction unjust. Thus, the Court must impose a monetary sanction. (Code Civ. Proc., § 2025.450, subd. (g).)

Plaintiff requests $5,485.70 in monetary sanctions. According to Plaintiff’s Counsel, this accounts for: (1) twelve hours of work; (2) an hourly rate of $400.00; (3) $616.95 in court reporting costs for the deposition that Defendant and Defense Counsel did not appear for; and (4) $68.75 in filing fees. (Decl. Eballar, ¶¶ 16–21.)

The hourly rate and costs claimed are reasonable, but the number of hours is not. The Court awards four hours of work at the requested hourly rate and all of the requested costs.

III. Conclusion

The Motion is GRANTED. Defendant shall make himself available for deposition within seven (7) days of the issuance of this Order.

Monetary sanctions are AWARDED in favor of Plaintiff and against Defendant and Defense Counsel, jointly and severally, in the total amount of $2,285.70.

Evidentiary sanctions are DENIED.