Judge: Michael Shultz, Case: 23STCV25758, Date: 2025-04-25 Tentative Ruling
Case Number: 23STCV25758 Hearing Date: April 25, 2025 Dept: 40
23STCV25758 MARK A. SPIEGEL, et al. vs
JEFFREY SELTZER, et al.
Friday,
April 25, 2025
[TENTATIVE]
ORDER
I.
BACKGROUND
This
action is a dispute between neighbors concerning whether Civil Code §841, the
“Good Neighbor Fence Act,” is applicable at all, and whether either neighbor
has one or more easements by prescription or by implication over the property
of the other. Plaintiffs Mark Spiegel and Linda Spiegel (collectively,
“Plaintiffs”) filed the Complaint on October 23, 2023, against Defendants
Jeffrey Seltzer, individually and as Trustee of the Seltzer Family Trust dated
June 13, 2011; Mortgage Electronic Registration Systems, Inc.; Old Republic
Title Company; and DOES 1 through 20 (collectively, “Defendants”) seeking quiet
title, declaratory relief, and injunctive relief.
On
August 26, 2024, Cross-Complainant Jeffrey Seltzer filed a Cross-Complaint
against Plaintiffs and Roes 1 through 5 alleging trespass and seeking
declaratory relief.
II.
ARGUMENTS
A.
Motion filed April 01, 2025.
Defendant/Cross-Complainant Jeffrey Seltzer
(“Seltzer”) move for an order from the Court compelling the depositions of
Plaintiffs/Cross-Defendants Mark Spiegel and Linda Spiegel, pursuant to Civil
Procedure Code §§2024.050(a) and 2025.450(a), and further ordering Plaintiffs
to appear for deposition by Seltzer’s counsel during the week beginning on
Monday, April 28, 2025, and ending on Friday, May 2, 2025. (Not. of Mot. 1:4-10.)
Seltzer further argues that good cause exists for the order even though the
initial discovery cut-off was March 8, 2025, because Plaintiff’s counsel agreed
to waive the discovery cut-off for those depositions. (Id. at 2:11-15.)
Moreover, the Plaintiffs’ depositions were stonewalled on five different
occasions prior to the discovery cutoff date. (Id. at 2:15-21.) Also,
when settlement efforts did not succeed, the Plaintiffs’ counsel objected to
the notice of deposition served immediately afterward on the ground that the
depositions were set for dates after the discovery cutoff. (Id.)
B.
Opposition filed April 16, 2025.
The
Court notes that the opposition is untimely as it was not filed within nine court
days before the hearing. (See Cal. Code of Proc. § 1005.)
Plaintiffs
argue that the motion is untimely because there was no agreement for a
discovery motion extension. (Opp. 2:4-7.) Plaintiffs further argue that
Defendant’s counsel did not make a meaningful meet and confer effort. (Id.
at 2:9-10.) Plaintiffs further argue that Defendant Seltzer would not authorize
his counsel to enter into the written stipulation required by the code to
extend the discovery cutoff date which was to be made in conjunction with a
trial continuance. (Id. at 2:11-14; Garcia Decl. ¶¶ 9-12.) Plaintiffs
also argue that even if the Court were to find an agreement existed for a
discovery extension, it was conditioned on the taking of deposition of Seltzer
between the depositions of Plaintiffs. (Id. at 2:15-18.) Lastly, Plaintiffs
argue that Plaintiff Mark Spiegel’s health issues prevent him from being
deposed. (Id. at 2:18-20.)
C.
No Reply Filed As of April 23, 2025
III.
LEGAL STANDARDS
California
Code of Civil Procedure § 2025.450(a) provides the following: “If, after
service of a deposition notice, a party to the action . . . without having
served a valid objection . . .fails to appear for examination, or to proceed
with it, . . . the party giving notice may move for an order compelling the
deponent’s attendance and testimony. . ..” (California Code of Civil Procedure
§ 2025.450(a).)
IV.
DISCUSSION
A. Timeliness
The motion is timely. Here, the Court
notes that the initial discovery cut off was March 8, 2025, as trial was set
for April 8, 2025. On March 26, 2025, upon Plaintiffs’ counsel orally requested
a trial continuance which the Court granted. Trial is now set for May 12, 2025.
The Court notes that it did not extend the discovery cut-off, however, on
February 27, 2025, Plaintiffs’ counsel agreed to an extension. (Yates Decl.
¶12; Ex. 9 [February 27, 2025, Email Correspondence].) Specifically,
Defendant’s counsel asked “I noted this morning that the Spiegel depositions
are currently set for March 3 and March 4. Given that we are meeting on March 7
to try to resolve this dispute, it seems to me that these depositions should be
continued in the hope that they will not be needed. The only problem is that the
discovery cutoff in this case is March 8. Will you agree to waive the discovery
cutoff as to these depositions, in case we are unable to resolve the matter
next Friday?” (Id.) Plaintiffs’ counsel responded “I would
agree to that. Mary, we have more written discovery responses due next week.
Would you be willing to agree to continue them as well? We may need to submit a
stipulation to the Court to continue the trial for a short time, although both
sides have been resistant to that until now.” (Id.) Therefore,
Plaintiffs’ Counsel’s argument that this agreement was a conditional offer
based on a trial continuance is unpersuasive. Counsel fails to provide evidence
showing that his written response on February 27, 2025, was conditional upon a
Stipulation for a trial continuance. Rather his response, “I would agree to
that” shows that he was explicitly agreeing to the cutoff date extension
because in the next sentence he requests an extension for discovery responses
and asks whether Defendant’s counsel would be willing to “continue them as
well.” (Id.) Plaintiffs argument that no cut-off
waiver exists because Defendant Seltzer did not authorize his counsel to waive
the discovery cut-off date is without merit. (Opp. 3:21-23.) The Court is
unable to locate any legal authority requiring a personal waiver and Plaintiffs
failed to provide any legal authority for such claim. Therefore, the motion is
timely.
B. Meet and Confer
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. Here, Defendant’s counsel submits his declaration
showing that he emailed Plaintiffs’ counsel after reserving a hearing date for
the motion reminding him about the discovery extension. (Yates Decl. ¶5.)
Although Plaintiff argues that the meet and confer efforts were not meaningful
because Defendant’s counsel was aware that he was in trial, he fails to provide
any authority showing that being in trial prevents a meaningful meet and confer
from taking place. Thus, the Court finds the meet and confer efforts were
sufficient.
C. Good Cause Exists to
Compel Depositions of Plaintiffs Mark Spiegel and Linda Spiegel
Defendant has shown good
cause to compel the depositions of both Plaintiffs Mark Spiegel and Linda
Spiegel. Here, Defendant’s Counsel submitted copies of the six deposition
notices served from November 2024 to March 2025 for both Plaintiffs. (Yates
Dec. ¶¶ 7- 13, Ex. 1, 4 – 9.) Further, Defendant’s Counsel presented evidence
showing that Plaintiffs’ Counsel waived the discovery cut-off so that
Plaintiffs could be deposed in case the settlement negotiations were
unsuccessful. (Yates Decl. ¶12; Ex. 9
[February 27, 2025, Email Correspondence].) The Court further notes that
Plaintiffs have not submitted any evidence showing that Plaintiff Mark Spiegel
is currently unable to attend a deposition due to his illness. Moreover,
Plaintiffs fail to provide any evidence showing that Linda Spiegel is also
unavailable for the deposition. Based on the foregoing, Defendant is entitled
to take Plaintiffs’ depositions.
V.
CONCLUSION
The Court GRANTS Defendant’s
Motion to Compel Plaintiffs Mark Spiegel and Linda Spiegel’s Depositions.