Judge: Peter Wilson, Case: 2019-01059680, Date: 2023-08-17 Tentative Ruling

Defendants and Cross-Complainants Butterfly Pavillion, LLC, Butterfly Palladium, LLC, Lila Stahl, and Estate of Rubin Stahl (collectively Defendants) seek (1) to compel Non-party Deponent James Vanderpool (Vanderpool) to produce documents pursuant to a Subpoena for Business Records and (2) monetary sanctions in the amount of $1,750 against Vanderpool and/or his counsel, Blank Rome LLP and Alvarez-Glasman & Golvin for the attorney fees and costs incurred by Defendants.

For the reasons which follow, the Motion is DENIED.

Pursuant to Code of Civil Procedure § 2025.480, when “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.”

In this case, there is nothing to compel. Defendants do not argue that Vanderpool failed to provide Code-compliant responses to the requests for production of documents in the Records Deposition Subpoena. Instead Defendants argue Vanderpool’s response that he no longer has any responsive records in his possession, custody or control is not credible. But Defendants do not present any evidence to contradict Vanderpool’s representations. 

Defendants are incorrect that Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566 (Lopez) permits the Court to simply disbelieve Vanderpool’s uncontroverted representations. Contrary to Defendants’ arguments, the trial court in Lopez did not merely decline to credit defendant’s representations that it would take years to find responsive documents. The Lopez court found the trial court reasonably rejected defendant’s arguments because defendant admitted there were responsive documents, there was evidence that defendant segregated the responsive documents in “Special Blue envelopes” that were to be kept “indefinitely”, and defendant made no effort to identify any responsive documents. (Id. at 595.) Moreover, defendant’s PMQ admitted that documents could be recovered quickly and all documents had been scanned into a program with a search function. (Id.)  Thus, there was ample evidence, including the defendant’s own admissions, that contradicted its representations that the manual search through its files would be impractical, time-consuming, and disrupt its operations. (Id. at 580–587.)

Absent any evidence contradicting Vanderpool’s representations, there is no basis for this Motion.

As Defendants acknowledge, monetary sanctions shall be imposed against a party who unsuccessfully makes or opposes a motion to compel further responses to demands for production of documents unless the one subject to sanction acted with substantial justification or other circumstances make the imposition of sanctions unjust. ROA 1483, Mem. Supp., pp. 8-9. (See also, Code Civ. Proc. § 2025.480(j).)

Defendants’ actions were not substantially justified and there are no circumstances that make the imposition of sanctions unjust. Vanderpool is awarded monetary sanctions in the total amount of $3,700 against Butterfly Pavillion, LLC, Butterfly Palladium, LLC, Lila Stahl, and Estate of Rubin Stahl, jointly and severally. 

Defendants are ordered to give notice.