Judge Randy Rhodes, Case 20CHCV00307 2023-01-04 Tentative Ruling

Judge: Randy Rhodes, Case: 20CHCV00307, Date: 2023-01-04 Tentative Ruling

Case Number: 20CHCV00307 Hearing Date: January 4, 2023 Dept: F51

Dept. F-51

Date: 1/4/23

Case #20CHCV00307

MOTION FOR TERMINATING SANCTIONS

Motion Filed: 12/12/22

MOVING PARTY: Plaintiff/Cross-Defendant Walter Martin, Trustee for the Gesner L. Martin Living Trust (“Plaintiff”)

RESPONDING PARTY: Defendant/Cross-Complainant Anica Barbosa, an individual (in pro per) (“Defendant”)

NOTICE: OK

RELIEF REQUESTED: A terminating sanction striking Defendant’s answer, or, alternatively, an order compelling Defendant to sit for her deposition within 30 days from the date of this hearing.

TENTATIVE RULING: The motion is denied in part. Defendant is ordered to appear for the taking of her deposition on or before 2/3/23.

The parties are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

BACKGROUND

On 3/24/20, Plaintiff entered into a month-to-month lease agreement for certain premises with Defendant. According to Plaintiff, Defendant took “premature possession” of the premises on 3/28/20, and blocked Plaintiff from showing the premises to prospective buyers. Defendant also breached the lease by failing to conduct certain agreed upon tenant improvements, and failing to pay the security deposit, late charges, or the rent due in May 2020 and thereafter.

On 3/19/20, Plaintiff filed a complaint for Breach of Lease Contract. Defendant answered the complaint on 8/4/20, and filed a cross-complaint against Plaintiff for Breach of Warranty of Habitability, Negligent Maintenance of Premises, Nuisance, Breach of Quiet Enjoyment, Intentional Infliction of Emotional Distress, Intrusion into Seclusion, Violation of Privacy, Promissory Estoppel, Breach of Contract, and Fraud. On 8/24/20, Plaintiff answered the cross-complaint.

On 7/30/20, Plaintiff served a notice of deposition for 8/18/20. Plaintiff served a second notice of deposition on 11/26/21 with a deposition date of 12/30/21. No deposition occurred. On 2/22/22, Plaintiff moved to compel the deposition of Defendant. The Court granted the motion but declined to issue a monetary sanction against Defendant. Despite granting the motion to compel, no deposition occurred. On 6/6/22, Plaintiff moved to compel the deposition of Defendant. The Court denied the motion because the 2/22/22 order remained enforceable but issued a monetary sanction of $250.00 against Defendant. On 7/7/22, Plaintiff again moved to compel the deposition of Defendant. The Court took the motion off-calendar for lack of timeliness and insufficient proof of service.¿

On 9/15/22, Plaintiff filed another motion to compel the deposition of Defendant and for terminating sanctions. On 10/19/22, the Court granted the motion to compel Defendant’s deposition, and denied the request for terminating sanctions. The parties agreed for Defendant’s deposition to take place on 11/1/22.

Defendant appeared for her deposition on 11/1/22, but refused to answer any of counsel’s questions without a copy of the trust documents. On 12/12/22, Plaintiff filed the instant motion for terminating sanctions. On 12/20/22, Defendant filed her declaration in opposition. No reply has been filed to date.

ANALYSIS

The Court may issue a terminating sanction against a party who engages in the misuse of the discovery process by one of the following orders: “(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party.” (Code Civ. Proc. § 2023.030, subd. (d).)

The trial court may terminate a party’s action as a sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)¿ ¿

Here, Plaintiff has presented evidence to show that he has attempted to depose Defendant on eight occasions, including 8/18/20, 5/31/21, 12/30/21, 3/1/22, 3/25/22, 4/14/22, 7/6/22, and 11/1/22, to no avail. (Pl.’s Mot. 4:14–6:23.) Many of these attempts were willfully thwarted by Defendant. (Ibid.) Additionally, the Court has previously issued monetary sanctions against Defendant for her failure to appear for her deposition. (6/6/22 Minute Order.) Most recently, in granting Plaintiff’s motion to compel Defendant’s 11/1/22 deposition, this Court stated that “her failure to appear by 11/1/22 would warrant terminating sanctions.” (10/19/22 Minute Order.)

Here, Plaintiff argues that “if two Court orders, monetary sanctions, and the above warning were not enough to compel Barbosa’s deposition, then less severe sanctions will not produce compliance with the discovery rules.” (Pl.’s Mot., 13:19–20.) Plaintiff summarily argues that his case would be prejudiced and subject to further damage and expense in prolonging this case if Defendant is not compelled by way of terminating sanctions. (Id. at 13:21–14:2.) Plaintiff does not otherwise show the detriment he would suffer by not deposing Defendant.

Defendant argues in opposition that she opposes the taking of her deposition before she has an opportunity to review the trust documents “in order to verify that there exists a trust and verify that the property involved in this matter is actually in the name of the trust and also to verify that Walter Martin is the current trustee and authorized representative of the trust.” (Decl. of Anica Barbosa, ¶ 8.)

In balancing Defendant’s conduct against the harm to Plaintiff, the Court finds that imposition of terminating sanctions is not appropriate at this time. Accordingly, the Court denies Plaintiff’s motion for terminating sanctions. However, the Court grants Plaintiff’s alternative relief requested, and orders Defendant to appear for her deposition within 30 days from the date of this hearing.

CONCLUSION

Plaintiff’s motion for terminating sanctions is denied in part. The Court grants Plaintiff’s request to compel Defendant’s deposition within 30 days of the date of this hearing. Defendant is ordered to appear for her deposition on or before 2/3/23.

Dept. F-51

Date: 1/4/23

Case #20CHCV00307

MOTION TO COMPEL PRODUCTION OF DOCUMENTS

Motion Filed: 12/14/22

MOVING PARTY: Defendant/Cross-Complainant Anica Barbosa, an individual (in pro per) (“Defendant”)

RESPONDING PARTY: Plaintiff/Cross-Defendant Walter Martin, Trustee for the Gesner L. Martin Living Trust (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: An order compelling the production of the Gesner L. Martin Living Trust documents. Defendant also requests a protective order to prevent from being deposed before she has had an opportunity to review the requested documents.

TENTATIVE RULING: The motion to compel is denied. Defendant’s request for a protective order is denied.

BACKGROUND

Defendant appeared for her deposition on 11/1/22, but refused to answer any of counsel’s questions without a copy of the trust documents. On 12/14/22, Defendant filed the instant motion to compel. On 12/20/22, Plaintiff filed his opposition. On 12/28/22, Plaintiff filed her reply.

ANALYSIS

Timeliness

The Court observes that both Defendant’s motion and her reply were filed late under Code of Civil Procedure section 1005, subdivision (b). Under the statute, “all moving and supporting papers shall be served and filed at least 16 court days before the hearing. … However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California. … All reply papers [shall be filed with the court and a copy served on each party] at least five court days before the hearing.” (Code Civ Proc. § 1005, subd. (b).)

Here, Defendant filed the instant motion on 12/14/22, and served Plaintiff by mail. The instant motion should therefore have been filed with no court no later than 12/12/22, and served by mail no later than 12/5/22. As Plaintiff notes, “this Court did grant Defendant’s Ex Parte Application to advance the hearing date for Defendant’s Motion to Compel but the Court’s Order did not shorten the time to give notice of such motion.” (Pl.’s Opp., 2:20–22.) Therefore, Defendant’s motion was untimely filed.

Defendant’s reply papers were filed with the Court on 12/28/22, and served on Plaintiff by mail. Under Code of Civil Procedure section 1005, subdivision (b), the deadline for Defendant to file her reply was 12/27/22. Therefore, Defendant’s reply was untimely filed.

Notwithstanding the foregoing, “the law respects form less than substance.” (Civ. Code § 3528.) Additionally, the public policy of California favors adjudicating cases on the merits (Elston v. City of Turlock¿(1985) 38 Cal.3d 227, 235; Hernandez v. Superior Court¿(2004) 115 Cal.App.4th 1242, 1246.) Here, while Defendant, a self-represented litigant, filed her papers past the filing deadline, Plaintiff has not alleged any prejudice resulting from Defendant’s late filings.

The Court thus exercises its discretion, under Rule 3.110 of the California Rules of Court, to excuse the untimely filed motion and reply. Defendant is advised to take note of the filing deadlines under the statute, as future filings made past the statutory deadlines may result in the Court declining to consider the late-filed papers at the hearing.

Motion to Compel Production

A propounding party may move to compel an initial production of a document on the ground that the responding party failed to serve a timely response to its written discovery request. (Code Civ Proc. § 2031.300, subd. (b).) To establish this ground, the propounding party must show (1) proper service of the discovery request on the responding party; (2) the deadline to respond to the demand has passed; (3) the responding party did not timely respond to the request; and (4) the responding party waived any objections to the discovery request. (O'Connor's California Practice, Civil Pretrial, Ch. 9-E § 3 (2022 ed.).) “The motion should be supported by a copy of … the demand to produce and the proof of service.” (Ibid.)

Here, Defendant contends that she showed Plaintiff’s attorney “copies of the November 1 and October 19 Request for Production.” (Decl. of Anica Barbosa ¶ 2.) However, Defendant does not proffer any evidence that such a discovery request was made on those dates, as she has not attached a copy of the alleged request to her moving papers. As such, Plaintiff contends that “Defendant has never provided Plaintiff’s counsel with a written demand for production of the Plaintiff’s Revocable Living Trust which complies with the itemized statutory requirements of CCP Section 2031.030.” (Pl.’s Opp., 4:17–20.)

Code of Civil Procedure section 2031.030 sets forth the substantive requirements of a request for the production of documents as follows:

“(a) (1) A party demanding inspection, copying, testing, or sampling shall number each set of demands consecutively.

(2) A party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced.

(b) In the first paragraph immediately below the title of the case, there shall appear the identity of the demanding party, the set number, and the identity of the responding party.

(c) Each demand in a set shall be separately set forth, identified by number or letter, and shall do all of the following:

(1) Designate the documents, tangible things, land or other property, or electronically stored information to be inspected, copied, tested, or sampled either by specifically describing each individual item or by reasonably particularizing each category of item.

(2) Specify a reasonable time for the inspection, copying, testing, or sampling that is at least 30 days after service of the demand, unless the court for good cause shown has granted leave to specify an earlier date. …

(3) Specify a reasonable place for making the inspection, copying, testing, or sampling, and performing any related activity.

(4) Specify any inspection, copying, testing, sampling, or related activity that is being demanded, as well as the manner in which that activity will be performed, and whether that activity will permanently alter or destroy the item involved.”

The record reflects that Defendant filed a declaration with the Court on 11/1/22, the date of her deposition, entitled “Objection and Opposition to Taking of Deposition and Request for Production.” As the 11/1/22 declaration is the only evidence of a written request for the trust documents, the Court focuses its analysis on this document.

As Plaintiff notes, this document, which Defendant seemingly purports to be a request for production, does not meet the procedural requirements of Code of Civil Procedure section 2031.030. The 11/1/22 declaration states, in pertinent part, “I have a right to review the trust document to verify that Walter Martin is a proper representative of the trust and that the trust is valid and proper owner of the real estate involved in this lawsuit. … I do not have any such document in my possession or under my control.” (11/1/22 Barbosa Decl.) This document does not otherwise satisfy the substantive requirements for a proper discovery request under Code of Civil Procedure section 2031.030.

Additionally, the 11/1/22 filing was not accompanied by a proof of service on Plaintiff, as required by Code of Civil Procedure section 2031.040. Moreover, “the demand for inspection, copying, testing, or sampling, and the response to it, shall not be filed with the court.” (Code Civ. Proc. § 2031.290, subd. (a).) Here, this document was filed with the Court without being served on Plaintiff. Therefore, Plaintiff has not been afforded an opportunity to respond or object to Defendant’s request pursuant to Code of Civil Procedure section 2031.210 et seq.

Based on the foregoing, the Court finds that Defendant did not timely serve a code-compliant request for production of documents as of the date of 11/1/22. Therefore, without a proper written discovery request served on Plaintiff, to which Plaintiff had an opportunity to respond, Defendant has not met the requirements necessary to file a motion to compel such a production. Accordingly, Defendant’s motion is premature, and is therefore denied.

The Court notes that Plaintiff has produced a number of documents, attached to his opposition papers, in an effort to show Defendant “that Decedent, Gesner L. Martin is truly deceased, that her Trust is the owner of the Subject Property and that Trustee, Walter Martin has the authority and power to prosecute this legal action against her.” (Pl.’s Opp. 6:16–21.) However, the Court declines to assess whether the produced documents satisfy Defendant’s concerns at this time.

Protective Order

A party or deponent may move for a protective order before, during, or after a deposition to control the deposition proceedings or the information obtained thereby. (Code Civ. Proc. § 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Id., subd. (b).)

Generally, this requires a showing that the burdens involved in the deposition proceeding clearly outweigh whatever benefits are sought to be obtained thereby. (Code Civ. Proc. § 2017.020, subd. (a).) The burden is on the moving party to establish “good cause” for whatever relief is requested: “Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in … [the discovery procedure] clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Emerson Elec. Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.)

Here, Defendant requests a protective order to prevent the taking of her deposition before she has had an opportunity to review the requests documents “in order to verify that there exists a trust and verify that the property involved in this matter is actually in the name of the trust and also to verify that Walter Martin is the current trustee and authorized representative of the trust.” (Barbosa Decl. ¶ 6.) Defendant further asserts that it was reasonable for her to object to the taking of her deposition before she has had such an opportunity because “I only have to allow the taking of my deposition to an authorized representative in good standing with the Gessner L. Martin Living Trust.” (Id., ¶ 7.)

Defendant makes no further substantive showing that her deposition is unlikely to lead to the discovery of admissible evidence, or that the burden associated with her deposition substantially outweighs its benefit to Plaintiff. As Plaintiff observes, Plaintiff has the absolute right to depose Defendant, as evidenced by the record, which includes this Court’s 10/19/22 Order compelling Defendant to appear for her 11/1/22 deposition. (Pl.’s Opp. To Def.’s Mot. For Protective Order, 3:28–4:6.) As Defendant has not met her burden to show that good cause exists for the Court to grant a protective order, her request is denied.

CONCLUSION

The motion to compel is denied. Defendant’s request for a protective order is denied.