Judge Michelle C. Kim, Case Number: 22STCV22459, Date: 2024-01-26 Tentative Ruling

On July 12, 2022, Plaintiff, German Pantoja Reyes, filed a Complaint against Defendants, Johann Peeters (“Peeters”) and Money Tax Group, Inc., alleging causes of action for (1) Violation of the Tax Preparation Act (Bus. & Prof. Code §§ 22250 et seq.), (2) Fraud, (3) Violation of Penal Code § 496, and (4) Unfair Competition.

On December 30, 2022, Plaintiff served Peeters with a Notice of Deposition for January 19, 2023. The Notice did not include a request for documents. Peeters timely served a written objection to the deposition on the grounds the deposition date was unilaterally scheduled. The parties met and conferred. Peeters’s then-counsel stated he would provide alternate dates. No new dates, however, were provided.

On February 23, 2023, Peeters substituted new counsel. On August 29, 2023, Plaintiff’s counsel contacted Peeters’s new counsel about a deposition date. Defense counsel refused to provide a date.

On September 1, 2023, Plaintiff filed this motion to compel Peeters’s deposition. Plaintiff requests sanctions against Peeters.

Any party may obtain discovery by taking in California the oral deposition of any person. (Code Civ. Proc., § 2025.010.) “If, after service of a deposition notice, a party to the action…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).)

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿¿

“If a motion under [Code of Civil Procedure section 2025.450] 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).)¿¿¿¿

Peeters argues the motion should be denied because it is untimely. In support, Peeters cites Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123 (Unzipped Apparel) for the proposition that a motion to compel a deposition must be filed within 60 days after a valid objection is served. In Unzipped Apparel, the Court of Appeal considered the issue of timeliness of a motion to compel the production of business records brought under Code of Civil Procedure section 2025.480, subdivision (b). The Appellate Court held that “objections served in response to ... business records subpoenas constituted a record of a deposition” triggering the 60-day deadline. (Unzipped Apparel, 156 Cal.App.4th at p. 136.)

Unzipped Apparel does not apply here. Unlike Unzipped Apparel, Plaintiff served, and Peeters objected to, the notice for taking Peeters’s oral deposition. Further, Section 2025.480 requires that a motion to compel a deponent to answer any question or to produce any document specified in the deposition notice or deposition subpoena be made no later than 60 days after the completion of the record of the deposition. (Code Civ. Proc., § 2025.480, subds. (a), (b).) Here, Peeters’s deposition never took place. As such, this motion does not (and cannot) seek to compel Peeters’s answer to any deposition question. Unzipped Apparel does not stand for the proposition that an objection to an oral deposition that never occurs begins the 60-day clock to bring a motion to compel.[2] The 60-day clock did not start in this case. Plaintiff’s motion is timely.

Further, it is undisputed that Plaintiff properly served Peeters with a Notice of Deposition and that Plaintiff met and conferred with Peeters’s new counsel prior to the filing of this motion. Peeters refused to provide alternate deposition dates based on an incorrect application of Unzipped Apparel. Accordingly, Plaintiff is entitled to an order compelling Peeters to appear for deposition.

Plaintiff requests sanctions against Peeters. Given the foregoing, sanctions are warranted. Indeed, in the context of a motion to compel a party’s deposition, sanctions are mandatory. (Code Civ. Proc., § 2025.450, subd. (g)(1).) Accordingly, sanctions are imposed against Peeters in the amount of $1,060, consisting of two hours at Plaintiff’s counsel hourly rate and $60 in filing fees.

The motion is GRANTED. Defendant Johann Peeters is ordered to appear for deposition.

Plaintiff’s request for sanctions is GRANTED. Sanctions are imposed against Peeters in the sum of $1,060, to be paid to Plaintiff, by and through his counsel.

Peeters is to appear for deposition and to pay sanctions within 30 days of this order.

[1] At the hearing on January 2, 2024, counsel for Plaintiff failed to appear. The court continued the motion to allow counsel to appear, and, in particular, to discuss available dates for the deposition. The matter was continued to January 26, 2024. On January 3, 2024, counsel for Plaintiff filed a declaration explaining that his failure to appear was due to a calendaring error. On January 10, 2024, counsel for Defendant filed an objection to the continuance of the hearing on the motion. Defense counsel cites to California Rule of Court 3.1304 (d) and argues the court had two options at the hearing when confronted by Plaintiff’s counsel’s failure to appear: take the motion off calendar or rule on the motion. Defense counsel cites the rule and objects but provides no remedy. If the court had adopted its tentative, the matter would have been decided against Defendant; and if the court had taken the matter off calendar, the court has the authority to put the matter on calendar on its own motion, which would lead us back to where we are now. (See R & A Vending Services v. City of Los Angeles (1985) 172 Cal.App.3d 1188, 1193 [“The court for good cause has discretion in the control and regulation of its calendar or docket. [Citation.] It is permissible for good cause to delay a trial or hearing to a later date or to drop or strike a case from the calendar, to be restored on motion of one or more of the litigants or on the court's own motion.”].) Defendant’s objection is overruled.

[2] Nor did the Notice of Deposition contain an accompanying request for documents.