Judge: Sarah J. Heidel, Case: 21BBCV00642, Date: 2025-04-03 Tentative Ruling
Case Number: 21BBCV00642 Hearing Date: April 3, 2025 Dept: V
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTHEAST DISTRICT
DEPARTMENT V
PACIFICA FOUNDATION INC., a California Nonprofit Public Benefit Corporation,
Plaintiff,
vs.
NEW DAY PACIFICA, an Unincorporated Association, JAN GOODMAN, NANCY
PEARLMAN, ROBERT PAYNE and ADAM WOLMAN,
Defendants.
NEW DAY PACIFICA, an Unincorporated Association, JAN GOODMAN, NANCY
PEARLMAN, ROBERT PAYNE and ADAM WOLMAN,
Cross-Complainants,
vs.
PACIFICA FOUNDATION INC., a California Nonprofit Public Benefit Corporation,
and ROES 1-200,
Cross-Defendants.
ELIZABETH JENSEN, SHEILA McCOY, MANSOOR SABBAGH,
Intervenors,
vs.
PACIFICA FOUNDATION INC., a California Nonprofit Public Benefit Corporation,
and DOES 1-200,
Defendants
Case No.: 21BBCV00642
Hearing Date: April 3, 2025
Time: 8:30 a.m.
[TENTATIVE] ORDER RE: INTERVENORS’ MOTION TO COMPEL: DEPOSITION TESTIMONY OF
DESIGNEE OF PACIFICA; PRODUCTION OF RECORDS OF THE PACIFICA FOUNDATION; FORM
INTERROGATORIES; TO DEEM REQUESTS FOR ADMISSIONS ADMITTED; AND FOR SANCTIONS
AGAISNT PLAINTIFF/AND/OR PLAINTIFF’S ATTORNEY
MOVING PARTIES: Intervenors ELIZABETH JENSEN, SHEILA McCOY, and MANSOOR
SABBAGH
RESPONDING PARTY: Plaintiff/Cross-Defendant PACIFICA FOUNDATION INC.
The court considered the moving papers and cross motion.
BACKGROUND
Plaintiff Pacifica Foundation Inc. filed the operative first amended
complaint (“FAC”) against defendants New Day Pacifica, Jan Goodman, Nancy
Pearlman, Robert Payne and Adam Wolman on August 30, 2021. Cross-complainants
New Day Pacifica, Jan Goodman, Nancy Pearlman, Robert Payne and Adam Wolman
filed the operative second amended cross-complaint on March 30, 2022.
Intervenors Elizabeth Jensen, Sheila Mccoy, and Mansoor Sabbagh filed their
complaint in intervention on April 8, 2022.
On April 24, 2023, the court granted summary judgment on plaintiff’s first
cause of action which sought a declaration that the New Day Referendum failed
and concluded that a parallel vote was needed, and the December 4th Agreement
did not alter the bylaws. On October 16, 2024, after agreement of the parties,
the court ordered mediation be completed by April 4, 2025.
Intervenors filed this motion to compel on February 28, 2025. Plaintiff
filed a notice of cross motion on March 13, 2025 and March 17, 2025. No
opposition has been received.
LEGAL STANDARD
A.
Motion to Compel Deposition
A party may obtain discovery by taking the oral deposition of any person,
including any party to the action. (Code Civ. Proc., § 2025.010.) Code of Civil
Procedure section¿2025.450(a)
provides:¿“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, or to produce for¿inspection any document . . . 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 . . . described in the deposition notice.” (Code Civ. Proc., §
2025.450(a).)
Code of Civil Procedure section¿2025.450(b)
provides:¿“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.”¿ (Code Civ. Proc., §
2025.450(b).)
B.
Motion to Compel Production of Records and Form
Interrogatories
A plaintiff may serve a request for production of documents and
interrogatories without leave of court at any time 10 days after the service of
the summons on, or appearance by, the party to whom the demand is directed,
whichever occurs first. (Code Civ. Proc., § 2031.020(b); Code Civ. Proc., §
2030.020(b).)
The party whom the request is propounded upon is required to respond within
30 days after service, but the parties are allowed to informally agree to an
extension and confirm any such agreement in writing. (Code Civ. Proc., §§
2031.260(a), 2031.270(a) - (b); Code Civ. Proc., §§ 2030.260(a),
2030.270(a)-(b).)
Where there has been no timely response to a request for the production of
documents or to interrogatories, the demanding party may seek an order
compelling a response. (Code Civ. Proc. § 2031.300(b); Code Civ. Proc., §
2030.290(b).) If a party fails to timely respond to a request for production of
documents, the party to whom the request is directed waives any objection,
including one based on privilege or on the protection for work product. (Code
Civ. Proc., § 2031.300(a); Code Civ. Proc., § 2030.290(a).)
C.
Motion to Deem Requests for Admission Admitted
Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), a
“party may move for an order that the genuineness of any documents and the
truth of any matters specified in the requests be deemed admitted, as well as
for a monetary sanction under Chapter 7 (commencing with section 2023.010).”
The court “shall” grant the motion to deem requests for admission admitted
“unless it finds that the party to whom the requests for admission have been
directed has served, before the hearing on the motion, a proposed response to
the requests for admission that is in substantial compliance with Section
2033.220.” (Code Civ. Proc. § 2033.280(c).)
DISCUSSION
A.
Plaintiff’s Cross Motion
Plaintiff filed a cross motion to dismiss the counterclaims and intervenors’
complaint. Plaintiff also argue that the motion to compel is untimely, and move
for a protective order. The court will consider the cross motions only to the
extent that they raise arguments that oppose the motion to compel. The
remainder of plaintiff’s cross motion, the motion for a protective order and
the arguments in support of its request to dismiss the counterclaims and
complaint in intervention, are substantively two new motions for which
plaintiff must reserve hearing dates. The court has not considered those
arguments in deciding this motion. The court has reviewed the record and has
not found any order staying discovery pending mediation.
B.
Motion to Compel Deposition
Intervenors move for an order to compel plaintiff to produce a
representative to appear on its behalf for a deposition within 20 days. The
meet and confer requirement is satisfied. (Vallette Decl., ¶¶ 3,4; Exh. A, B.)
Plaintiff argues that the motion to compel deposition is untimely pursuant
to Code of Civil Procedure section 2025.480. Code of Civil Procedure section
2025.480 relates to a motion to compel a deponent to answer a question or
produce a document specified in the deposition notice. (Code Civ. Proc.,
2025.480(a).) Such a motion shall be made no later than 60 days after the
completion of the record of the deposition. (Code Civ. Proc., 2025.480(b).)
Because plaintiff refused to attend the deposition this motion is brought
under Code of Civil Procedure section 2025.450(a). Pursuant to Code of Civil
Procedure section 2025.010, a party may obtain discovery by taking the oral
deposition of any party to the action.
The court orders plaintiff to make available a representative to appear on
its behalf for a deposition. Although intervenors have attempted to meet and
confer and find mutually agreeable dates for the deposition, plaintiff has not
been willing to meet and confer or offer dates of availability. The court
orders the parties to meet and confer via telephone or videoconference to find
a mutually available date for the deposition of plaintiff’s representative. The
court also grants the motion to compel responses to production of documents.
C.
Requests for Admission and Form Interrogatories
Intervenors served Requests for Admissions, Set One and Form Interrogatories
on October 4, 2024. (Vallette Decl., ¶ 3; Exh. A.) Plaintiff’s counsel has
expressed it will not comply with intervenor’s discovery requests. (Vallette
Decl., ¶ 4; Exh. B.) As plaintiff has not served responses to either requests
for admission or form interrogatories, the court deems the requests for
admission admitted and grants the motion to compel responses to form
interrogatories.
D.
Sanctions
Intervenors request sanctions. As intervenors have failed to provide proper
notice and the the court denies the request for sanctions. (Code Civ. Proc., §
2023.040.)
E.
Filing Fees
Intervenors filed a single motion for what should have been three separate
motions: motion to compel deposition and production of documents, motion to
compel responses to form interrogatories, and motion to deem requests for
admission admitted. Combining discovery motions allows the moving party to
avoid paying the requisite filing fees. Filing fees are not jurisdictional and
it is mandatory for court clerks to demand and receive them. (See Duran v. St.
Luke’s Hospital (2003) 114 Cal.App.4th 457, 460.) Intervenors are ordered to
pay two additional filing fees.
Based on the foregoing, the court GRANTS the motion to compel deposition and
orders the parties to meet and confer via telephone or videoconference to find
a mutually available date.
The court GRANTS the motion to compel responses to request for production of
documents and form interrogatories and orders plaintiff to provide responses by
April 21, 2025.
The court deems requests of admissions admitted.
The court DENIES intervenors’ request for sanctions.
Intervenors are ordered to pay two filing fees within 5 days of notice of
this ruling. Intervenors are ordered to give notice of this ruling.