Judge Randolph M. Hammock, Case Number: 22STCV22933, Date: 2023-11-22 Tentative Ruling

Plaintiff’s Motion to Compel Defendant’s Deposition is DENIED without prejudice.

Plaintiff’s request for monetary sanctions is DENIED.

Defendant’s request for monetary sanctions TO BE ARGUED AT THE HEARING.

(a) 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.

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) 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.

This Court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)] or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

As such, this court respectfully declines to rule on these objections. This court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.

Plaintiff filed his first motion to compel Defendant’s deposition on September 21, 2023. On October 6, 2023, Plaintiff unilaterally withdrew the motion apparently in view of a lack of timely notice issue raised in the opposition thereto.

Importantly, in this court’s October 9, 2023, Minute Order noting withdrawal of that motion, the court stated, in part, that if there was “any future filing of a motion to compel deposition, the parties and their respective counsel are reminded to comply with the ‘meet and confer’ requirements of CCP § 2025 (b) (2), and that it is required to be ‘meaningful’ from both sides.” (10/09/23 Minute Order.)

Plaintiff simply appear to ignore that Minute Order, and instead, on October 12, 2023, Plaintiff filed a second motion to compel Defendant’s deposition. On October 27, 2023, Plaintiff unilaterally withdrew that motion in a pleading bizarrely entitled “Notice Taking Motion to Comple Off Calendar Due Oppositions [sic] Complaint of Desire and Their Saying Inability to Do So While Limited Scope Counsel’s Work Remains Pending.” This Court assumed that pleading was filed in late recognition of the October 9th Order.

Plaintiff now brings this third motion to compel Defendant’s deposition. Plaintiff contends “the depo was duly noticed,” that Defendant “refused and failed to appear,” and that Defendant “failed to engage in good faith meet and confer.” (Mtn. 2: 7-10.)

Defendant opposes the motion to compel. First, Defendant argues that Plaintiff’s limited scope attorney Craig Aronson has failed to meet and confer with Defense counsel. Defendant states that Attorney Aronson has not provided Defendant with any contact information that would allow Defendant to communicate with him. This Court agrees with both points.

It is painfully clear that despite the applicable law, and moreover, this Court’s October 9th Minute Order, neither the Plaintiff nor his Limited Scope Attorney, Mr. Aronson, has even attempted to have a meaningful “meet and confer” since the first motion to compel was filed in early September 2023. There simply is no declaration from Mr. Aronson attesting to any such efforts since he has appeared in this case in this limited capacity concerning the pending motion to compel. This fact, in and of itself, is a fatal flaw to this motion.

It is also troubling that the contact information on Plaintiff’s various motions to compel for Mr. Aronson includes the same identical address and telephone number listed on the motions that Plaintiff files in pro per. None of those pleadings include a separate and distinct email address for Mr. Aronson. Thus, it appears there is no reasonable way for Defendant to communicate directly with Mr. Aronson. This raises further concerns about a lack of any substantive “meet and confer” between the parties as required.

Simply put, Mr. Aronson will not be allowed to appear in this case as a “limited scope” attorney or otherwise, until and unless he provides a separate and distinct email address for himself. He may use Plaintiff’s regular mailing address [which appears to be a post office box] and phone number at his own choice and peril, but this Court expressly orders that he immediately provide his own email address which may and will be used for service and/or contact purposes in this case, as may be needed and warranted. See, e.g., CCP § 1010.6 (b)(1) [“The court may order electronic service on a person represented by counsel who has appeared in an action or proceeding.”].

Second, and relatedly, Defendant asserts that she offered dates of November 28th, 29th, or 30th for her deposition, but that counsel Aronson was not responsive. (McCarthy Decl., Exh. 14.)

Third, Defendant asserts the motion is untimely because Plaintiff filed the instant motion more than sixty days after the Defendant’s objection was served and more than sixty days after the scheduled date for the deposition. Section 2025.480(a) provides:

(a) If 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.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.

Regarding the timing of Plaintiff’s motion, it is true that this motion comes more than 60-days after the set date of the deposition. It is unclear, however, when the “completion of the record of deposition” occurred here, if at all, to start the running of the 60-day clock.

Setting aside the timing issue, the motion is still without merit. Simply put, Defendant is not refusing to appear for her deposition. As the lone Defendant in this action, Defendant understands that Plaintiff is entitled to take her deposition. The issue arises over the scope of the deposition, given the potential confidentiality of the underlying state bar proceedings and any related attorney-client privilege issues. Defendant only seeks to limit the scope of the deposition, which under the circumstances, is a reasonable position. Thus, because Defendant is not refusing to appear, there is no need to order her deposition.

Plaintiff may certainly re-notice the Defendant’s deposition in a code-compliant manner. If there are objections thereto, the parties are required to have a meaningful “meet and confer” prior to any motions being filed in connection thereto.

It is really that simple.

IV. Requests for Monetary Sanctions

Plaintiff’s request for monetary sanctions of $8,000 (or more) is DENIED based upon the simple reason that the underlying motion to compel was denied. Alternatively, the request is also denied since the Defendant has acted with “substantial justification.”

Defendant’s request for monetary sanctions of $1,300 against both Plaintiff and Mr. Aronson appears to be reasonable and well justified. Plaintiff’s rambling and semi-coherent reply papers of 212 pages did not adequately address that request. Be that as it may, since Plaintiff did not prevail on the motion to compel, it is incumbent upon Plaintiff and his attorney to demonstrate that they each acted with “substantial justification” and/or the imposition of sanctions would be unjust, per CCP § 2025.410 (d).

This Court will invite oral argument at the hearing from counsel on this issue.