Judge: Richard Y. Lee, Case: 30-2020-01138245, Date: 2022-09-15 Tentative Ruling

Plaintiffs Michael Tang and Candice Tang seek an order compelling Defendant Frank Berry to attend his deposition, and for an order imposing monetary sanctions in the amount of $2,047.50 against Berry and his counsel of record. (ROA 141)

Plaintiffs also seek an order compelling the Person Most Knowledgeable of Defendant The Nursery to attend its deposition, and order an order imposing monetary sanctions in the amount of $2,047.50 against The Nursery and its counsel of record. (ROA 142)

Moving party cites to Code Civ. Proc. §2025.450(a) as enabling authority for the relief requested.

Section 2025.450(a) states, in relevant part, “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, …, the party giving the notice may move for an order compelling the deponent's attendance and testimony….”

In this instance, on March 8, 2022, Plaintiffs served the Third Notice of Deposition of Frank Berry. The deposition was set for April 12, 2022. (Declaration of Jaclyn C. French ¶10, ROA 137). On the same date, Plaintiffs served the Third Notice of Deposition for the Deposition of Person Most Knowledgeable for The Nursery. (Decl. of French ¶13, ROA 139)

On April 11, 2022, Plaintiffs sent correspondence to defense counsel for Frank Berry and the Nursery confirming the deposition of Frank Berry the next day, and defense counsel responded that he thought the depositions were off calendar and Frank Berry could not make it. Thereafter, in June 2022, counsel for moving party attempted to meet and confer in an effort to obtain deposition dates. (See Declarations of French)

Defendant Berry and the PMK are silent as to whether they failed to appear at the April 12, 2022 deposition. Rather, they argue the motion is untimely pursuant to Code Civ. Proc. §2024.020(a).

Section 2024.020(a) provides, “Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.”

These motions are untimely for two reasons:

First of all, the Motions are set for September 15, 2022, which is less than 15 days before trial. When the Motions were filed on June 28, 2022, the trial was set for September 6, 2022. (See ROA 132), which means they were set for a hearing after trial. Although the Court subsequently granted an ex parte to continue trial, the trial is now set for September 26, 2022; meaning this motion is set to be heard just 11 days before trial.

Second, even if the Court were to grant the requested relief on September 15, 2022, the depositions would not be “completed” 30 days preceding trial as required by Code Civ. Proc §2024.020(a).

Plaintiffs actively opposed the ex parte request to continue the September 6, 2022 trial date.  “Plaintiffs are prepared to go forward with trial on September 6, 2022 . . . . Plaintiffs will be prejudiced if the trial does not go forward on September 6, 2022.”  (Opposition Brief (ROA 180), pp. 2-3). 

Therefore, the Motions are DENIED as untimely.

Defendant Berry and Defendant The Nursery seek sanctions and cite to Code Civ. Proc. §§2023.010(h) and 2023.030(a) as basis for such.

Section 2023.10(h) provides that misuses of discovery includes, “Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.”

Section 2023.030(a) provides, “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.”

Here, it was a misuse of discovery to file untimely motions. As such, sanctions in the amount of $544.50 are warranted against Plaintiff and Counsel of Record, jointly and severally, to be paid within 20 days after serving the Notice of Ruling. The sum represents 1.1 hour of attorney time at $495 an hour. [See Decl. of Cottone¶8. ]

Defendant Berry to give notice.