Judge Randolph M. Hammock, Case BC709106 2023-03-22 Tentative Ruling

Joseph Leonard Moore v. Kathy Ann Moore Sausedo et al.

PLAINTIFF’S MOTION TO COMPEL DEFENDANTS KATHY MOORE SAUSEDO AND ROBERT SAUSEDO TO BE DEPOSED AND FOR KATHY MOORE SAUSEDO TO PRODUCE DOCUMENTS WITHOUT OBJECTION IMMEDIATELY

MOVING PARTY: Plaintiff Joseph L. Moore

RESPONDING PARTY(S): Defendants Kathy Moore Sausedo and Robert Sausedo

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff is the son of Bereanice B. Moore, who died intestate in 2004. Plaintiff’s sister, Kathy Moore Sausedo, and her husband Robert Sausedo, are trustees of the Sausedo Trust. Defendant K. Sausedo is also the executor of the Estate of Bereanice B. Moore. The decedent had properties in California and Nevada. Plaintiff alleges that despite administering the Nevada property in probate, Defendants did not open a probate proceeding in California. Plaintiff alleges that Defendant K. Sausedo repeatedly assured him that their mother’s probate matter was pending. However, Plaintiff alleges that in August 2016, he learned that Defendant K. Sausedo had transferred title to the Orange Drive property to herself in 2003, and had in fact never started the probate process. Plaintiff’s SAC included causes of action against Defendants for (1) fraud, (2) intentional interference with expected inheritance, (3) intentional interference with prospective economic advantage, (4) conversion, (5) declaratory relief, (6) quiet title, and (7) cancellation of instruments. The court sustained a demurrer to the third and fifth causes of action on August 23, 2019. Subsequently, the court granted summary judgment as to Defendant Paula Marie Moore only on June 9, 2021. Accordingly, the operative SAC contains causes of action for (1) fraud, (2) intentional interference with expected inheritance, (4) conversion, (6) quiet title, and (7) cancellation of instruments against Defendants Kathy Moore Sausedo and Robert Sausedo.

Plaintiff Joseph L. Moore now moves to compel the depositions of Defendants Kathy Moore Sausedo and Robert Sausedo, and to compel Defendant Kathy Moore Sausedo to produce documents. Plaintiff also seeks sanctions in the amount of $7,579.60. Defendants opposed.

Plaintiff’s Motion to Compel is DENIED WITHOUT PREJUDICE. Any and all requests for sanctions is DENIED, as the motion is denied, and the Plaintiff acted with “substantial justification” in filing same.

Moving party to give notice, unless waived.

Where, as here, a party deponent has not appeared for his or her deposition, CCP § 2025.450 applies:

(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.

(b) A motion under subdivision (a) shall comply with both of the following:

(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.

(CCP § 2025.450(a),(b) [emphasis added].)

On January 31, 2023, Plaintiff noticed Defendant Kathy Moore Sausedo’s deposition for February 23, 2023, and made 20 demands for inspection. (Armstrong Decl. ¶ 7.) Plaintiff also noticed Defendant Robert Sausedo’s deposition for the same date. (Id. ¶ 16.) Plaintiff contends Defendants objected to the February 23, 2023, deposition dates but failed to offer any other availability. With the trial date then set for April and with the discovery cut-off looming, Plaintiff filed this motion.

In opposition, Defendants first contend the motion is procedurally deficient because it “did not provide proper notice as required by law.” (Opp. 3: 13.) That is because “[t]his motion was filed on February 28, 2023, which means it would have needed to be served on defendants by February 24, 2023, for it to be timely.” (Opp. 3: 13-15.) Under Code of Civil Procedure section 1005(b), “all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” Where, as here, service occurs be email, the 16-court-days notice period is extended by 2 court days. (CCP § 1010.6(a)(4).)

Thus, Plaintiff’s motion needed to be served on Defendants 18 court days before the March 22, 2023, hearing—or by February 24, 2023. Plaintiff filed the motion and provided notice to Defendants on February 28, 2023. Plaintiff therefore failed to give the requisite notice. Plaintiff does not argue otherwise, or even address the untimeliness in its motion or reply. A trial court has discretion to deny a motion that fails to comply with the notice requirements in section 1005. (People v. Am. Contractors Indem. (1999) 74 Cal. App. 4th 1037, 1049.)

The Motion is therefore DENIED on these procedural grounds.

Be that as it may, the result is the same if addressed on the merits. It appears the parties agree that Defendants should be deposed—they only cannot agree on a date. Defendants also state in their supplemental filing that they are willing to stipulate to Defendants’ depositions. As such, there is no need for any motion or order to “compel” this deposition.

Finally, it should be noted that because the trial date has been continued to October 30, 2023, much of the urgency in compelling the depositions has now been eliminated. (See 03/08/2023 Minute Order.)

Moving party to give notice.

Dated: March 22, 2023 ___________________________________

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.