Code of Civil Procedure Section 2025.450 provides that “[i]f, 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.”

The use of the term “motion” in this statute precludes the use of an ex parte application to seek relief.  (See St. Paul Marine & Fire Ins. Co. v. Superior Court, 156 Cal. App. 3d 82, 86 (1984).)  The instant ex parte application is DENIED for this reason.

Defendant’s request for monetary sanctions is also DENIED.  “Discovery sanctions may not be ordered ex parte, and an order purporting to do so is void.”  (Sole Energy Co. v. Hodges, 128 Cal. App. 4th 199, 208 (2005).)  The requirement that sanctions requests be made via a fully noticed motion, as opposed to the exigent procedure of an ex parte motion, is grounded in constitutional due process principles.  (See, e.g., O’Brien v. Cseh, 148 Cal. App. 3d 957, 961 (1983) (holding that due process would be violated if CCP § 128.5 sanctions were awarded on an ex parte basis.).)

The denial of the ex parte application is without prejudice to relief sought by noticed motion.