Judge: Michael P. Linfield, Case: 9STCV32597, Date: 2024-03-01 Tentative Ruling

Case Number: 9STCV32597    Hearing Date: March 1, 2024    Dept: 34

SUBJECT:        Motion to Compel Deposition [and] to Compel the Production of Documents Pursuant to Notice of Deposition [and] Request for Sanctions

Moving Party: George Santopietro

Resp. Party:    James Harden

The Motion is GRANTED.

James Harden shall make himself available to sit for a deposition within 20 days of the issuance of this Order.

The Request for Sanctions is DENIED. 

BACKGROUND:

On September 12, 2019, George Santopietro filed his Complaint against James Harden, Jeff Wiseman, Patrick Michael, Lia Vasdekis, LA Estate Rentals LLC, and Solimar Management LLC. The causes of action arise from damage that allegedly occurred after these individuals and corporate entities rented George Santopietro’s real property.

On February 20, 2020, Jeff Wiseman and Solimar Management LLC filed their Cross-Complaint against George Santopietro.

On April 13, 2020, LA Real Estate Rentals LLC filed: (1) Answer to the Complaint; and (2) Joinder to the Cross-Complaint.

On July 20, 2020, the Court granted summary adjudication in favor of Solimar Management LLC and against George Santopietro as to the second cause of action (breach of the covenant of good faith and fair dealing) in the Complaint.

On April 13, 2021, Jeff Wiseman and Solimar Management LLC filed their First Amended Cross-Complaint.

On May 5, 2021, George Santopietro filed his Answer to the First Amended Cross-Complaint.

On June 30, 2023, by request of George Santopietro, the Clerk’s Office dismissed without prejudice Lia Vasdekis from the Complaint.

On January 19, 2024, James Harden filed his Cross-Complaint against Beverly Park North Homeowners Association and Vmw Trust.

On January 22, 2024, James Harden filed his First Amended Cross-Complaint.

        On January 26, 2024, George Santopietro filed his First Amended Complaint (FAC).

        On February 2, 2024, George Santopietro filed his Motion to Compel Deposition [and] to Compel the Production of Documents Pursuant to Notice of Deposition [and] Request for Sanctions (“Motion”). In support of his Motion, George Santopietro concurrently filed: (1) Memorandum of Points and Authorities; (2) Declaration of Robert H. Bisno; and (3) Proposed Order.

        On February 5, 2024, Patrick Michael filed his First Amended Answer to the FAC.

        On February 5, 2024, Capital Investment Realty Group, LLC filed its First Amended Answer to the FAC.

        On February 6, 2024, James Harden filed his First Amended Answer to the FAC.

        On February 6, 2024, Jeff Wiseman and Solimar Management LLC filed their First Amended Answer to the FAC.

        On February 20, 2024, James Harden filed his Opposition to the Motion. In support of his Opposition, James Harden concurrently filed: (1) Bekeris Declaration; (2) Exhibit Binder; and (3) Notice of Errata.

        On February 20, 2024, the Court found related cases 19STCV32597 and 23STCV19315, and designated 19STCV32597 as the lead case.

        On February 22, 2024, George Santopietro filed his Reply in support of the Motion. George Santopietro concurrently filed another Declaration of Robert H. Bisno.

        On February 26, 2024, James Harden filed his Objection to Exhibits.

On February 26, 2024, George Santopietro filed his Objection to Unauthorized Sur-Reply.

ANALYSIS:

I.          Evidentiary Objections

James Harden filed evidentiary objections to the declaration submitted in support of George Santopietro’s Reply. George Santopietro then filed an objection to these objections.

The Court OVERRULES George Santopietro’s objection.

The Court OVERRULES James Harden’s objections.

II.       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).)

III.     Discussion

A.      The Deposition and Documents Request

George Santopietro moves the Court to compel James Harden to attend a deposition and to compel him to produce documents at the deposition. (Motion, p. 7:25–27.)

Among other things, counsel for George Santopietro declares: (1) that on December 29, 2023, James Harden was noticed for a deposition on January 22, 2024; and (2) that James Harden did not appear for the deposition. (Decl. Bisno, ¶ 4.)

James Harden opposes the Motion, arguing: (1) that there should be an informal discovery conference to resolve this issue; (2) that “Santopietro has not been available, and he is responsible for any delay”; (3) that the Motion is “an unnecessary waste of time”; (4) that “Defendants have done nothing wrong”; (5) that James Harden is waiting for George Santopietro’s deposition as George Santopietro has already deposed two of three defendants and “has avoided having his own deposition taken”; (6) that “Santopietro knew there were no documents the day before he filed this motion because Harden produced discovery that showed that he had no documents”; (7) that “Santopietro is intentionally attempting to prejudice the Court against Harden”; (8) that “Santopietro feels the motion should be granted because Harden did not object”; and (9) that the Motion makes misrepresentations about a crucial fact and is mistaken on many of the facts. (Opposition, pp. 1:24–25, 2:25–26, 3:5–8, 3:21–23, 6:1, 6:5, 8:19, 9:8.)

        Counsel for both sides portray this issue as vastly more complicated (and personal) than it is. The issue is simple. Parties may obtain discovery by deposing other parties to the action. (Code Civ. Proc., § 2025.010.) The evidence presented to the Court indicates that George Santopietro noticed James Harden’s deposition for January 22, 2024. (Decl. Bisno, Exh. B.) The Court has not been presented with any evidence that would indicate James Harden attended his deposition, objected to his deposition, or has since sat for a deposition. Rather, the evidence presented to the Court indicates just the opposite. (Decl. Bisno, ¶¶ 4, 6, 7.)

The Court briefly addresses the remaining arguments. The brevity of the Court’s responses to these arguments is proportionate to their relevance.

(1)       While parties are allowed to engage in informal discovery conferences, there is no requirement in Department 34 that informal discovery conferences be held on this type of matter.

(2)       George Santopietro’s availability for a deposition is not at issue regarding this Motion, and there is no rule that says George Santopietro must be deposed before James Harden is deposed.

(3)       Whether an act or an omission is a “waste of time” is subjective and irrelevant. At the end of the day, when a party files a motion, the Court must consider it and rule on it.

(4)       When faced with a motion, the Court does not opine on whether acts (or their omissions) are “wrong” or “right”; the Court only considers the question of whether something has occurred (or, as in this case, not occurred) and what, if anything, should be done about it.

(5)       If there are no documents to produce, James Harden may so declare that at his deposition.

(6)       The Court is not prejudiced against any party or their counsel.

(7)       Counsel is allowed to object to deposition notices pursuant to Code of Civil Procedure section 2025.410, et seq. Failing to appear at a deposition without a valid objection can lead to a motion to compel the deposition. (Code Civ. Proc., § 2025.450, subd. (a).)

(8)       Counsel are allowed to file evidentiary objections to evidence that they believe is inadmissible, and the Court will rule on evidentiary objections prior to considering evidence. As all of the evidentiary objections made regarding the Motion were overruled, the Court considered all of the arguments and evidence presented to it.

        In short, the arguments made in Opposition to the Motion are unavailing. The Court has not been presented with any reason or evidence that would support further delaying George Santopietro’s right to depose James Harden.

        The Court GRANTS the Motion.

        James Harden shall make himself available to sit for a deposition within 20 days of the issuance of this Order.

B.      The Sanctions Request

George Santopietro also requests a monetary sanction. (Motion, p. 7:25–28.)

        The Court has considered the circumstances and does not find that a monetary sanction is appropriate here.

        First, although there have been significant delays in this case, the fact is that James Harden was only recently served properly, and his subsequent demurrer was overruled on December 20, 2023. Counsel for George Santopietro noticed the deposition on December 29, 2023, and, based on the evidence presented to the Court, it seems that James Harden missed a deposition date that neither he nor his counsel agree to. The Motion was filed eleven days after the missed deposition. The evidence presented to the Court at this time does not indicate undue and/or prejudicial delay. Thus, while there has been delay in this matter, the issuance of a monetary sanction given these circumstances would be unjust.

        Second, the language used by both George Santopietro’s counsel and James Harden’s counsel in their respective filings and underlying emails has not been civil or courteous. (See, for example, Decl. Bisno, Exh. A.)

“Counsel should at all times be civil and courteous in communicating with adversaries, whether in writing or orally.” (Los Angeles Super. Ct., Local Rules, App. 3.A [Guidelines for Civility in Litigation], subd. (d)(1).”

“The timbre of our time has become unfortunately aggressive and disrespectful. Language addressed to opposing counsel and courts has lurched off the path of discourse and into the ditch of abuse. This isn’t who we are.” (In re Mahoney (2021) 65 Cal.App.5th 376.)

"We close this discussion with a reminder to counsel — all counsel, regardless of practice, regardless of age — that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive."¿ (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537.)

Given Counsels’ apparent incivility and own role in causing the litigation delay of which they both complain, monetary sanctions are not appropriate here. (Snoeck v. ExakTime Innovations, Inc. (2023) 96 Cal.App.5th 908, 911, holding that civility is an aspect of an attorney’s skill and “a trial court may consider an attorney’s pervasive incivility in determining the reasonableness of the requested fees.”) The Court would have held the same had James Harden’s counsel requested monetary sanctions.

Finally, George Santopietro requests $10,330.00 in monetary sanctions. (Motion, p. 7:25–28.) According to Counsel Bisno, this is based on thirteen hours of work done at $795.00 per hour, with an additional two hours expected. (Decl. Bisno, ¶¶ 14–15.) (The Court notes that fifteen hours at that rate is actually $11,925.00.) This is an unreasonable amount of attorney time to have been expended on what should have been a simple matter of offering and accepting dates for a deposition. Yet Defense Counsel claims in opposition that they have spent “well over 100 hours on this opposition.” (Decl. Bekeris, ¶ 7.) It is difficult to overstate how unreasonable all of this excess work was.  The Court has two comments:  1)  this motion could have been written by a first year associate billing less than $300/hour; 2) the Court does not believe either counsel statement of the hours expended.

“If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, cleaned up.)¿

“A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137; Serrano, supra, 32 Cal.3d at p. 635.)

That is the case here. In addition to the other reasons previously stated, the amount of the requested monetary sanction is outrageously unreasonable.

The Court DENIES the Request for Sanctions.

        Although informal discovery conferences are not mandatory in Department 34, the Court does encourage Counsel to voluntarily participate in them if discovery issues emerge in the future.

IV.      Conclusion

The Motion is GRANTED.

James Harden shall make himself available to sit for a deposition within 20 days of the issuance of this Order.

The Request for Sanctions is DENIED.