Judge Serena R. Murillo, Case 20STCV40833 2023-01-10 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV40833, Date: 2023-01-10 Tentative Ruling

Case Number: 20STCV40833 Hearing Date: January 10, 2023 Dept: 29

TENTATIVE

Defendant Alexander
Shaheen Daryabary’s motion to compel the
deposition of Jos A. Bank’s deposition and production of documents is DENIED. Defendant’s request for sanctions against
Jos A. Bank is DENIED.

Defendant Alexander
Shaheen Daryabary’s motion to
compel responses to Special Interrogatories is GRANTED. Plaintiff John
Gotthardt is ordered to provide verified responses without objections to the
discovery requests served on Plaintiff within 30 days.

Defendant’s
request for sanctions against Plaintiff is GRANTED. Plaintiff John Gotthardt and
counsel of record, Jackie Rose Kruger, are ordered to pay sanctions in the
amount of $410, jointly and severally, within 30 days of this order.

Legal Standard

Compel
Non-Party Depo

Generally, proper
service of a deposition subpoena compels a non-party deponent to appear, to
testify, and to produce documents if requested. (CCP § 2020.220(c).) A
deposition can be taken of any entity by examining an officer or agent
designated to testify on its behalf. (CCP § 2025.010.) Such an individual is
often referred to as a Person Most Knowledgeable (“PMK”) or Person Most
Qualified (“PMQ”) depositions. (CCP §
2025.230.)

When a nonparty
is served with a deposition subpoena but fails to attend the deposition or
refuses to be sworn as a witness, the party that served the subpoena may move
for an order directing compliance with the subpoena and imposing other terms or
conditions as the judge considers appropriate.¿(CCP § 1987.1(a).) Unlike the
motion against a party deponent, the motion to compel a nonparty's attendance
does not require the deponent to serve objections, does not require a meet and
confer, and monetary sanctions against the losing party are not mandatory. (Id.)

Compel
Production of Documents in Deposition Subpoena

If a deponent
fails to produce any document, electronically stored information, or tangible
thing under the deponent's control that is specified in the deposition notice
or deposition subpoena, the deposing party may move for an order compelling
that production. (CCP § 2025.480(a).) However, the subpoenaing party may only
seek a court order compelling the nonparty to comply with the subpoena within
60 days after completion of the deposition record. (Id. § 2025.480(b).)

A
nonparty must comply (or not) with the subpoena on the date specified for
production, and if the subpoenaing party is not satisfied with the nonparty's
compliance, the party has 60 days in which to meet and confer with the
nonparty.¿(Board of Registered Nursing v Superior Court (2021) 59
Cal.App.5th 1011, 1034; CCP § 2025.480(b).) The meet and confer efforts,
however, do not affect the 60-day deadline for filing a motion to compel
production, which is mandatory; instead, the meet and confer process is part of
the 60-day period in which to file a motion to compel, and does not extend it.
(Board of Registered Nursing, supra, 59 Cal.App.5th at
1034–1035; CCP § 2025.480(b).) If the party is still unsatisfied with the
nonparty's compliance with any portion of the subpoena at the end of this
period because, for example, the nonparty still has not produced the requested
documents, the party must file a motion to compel, which must encompass any
issue the party wishes to raise about the nonparty's compliance. (Id.) A
party is not permitted to file multiple, piecemeal motions to compel. (Board
of Registered Nursing, supra, 59 Cal.App.5th at 1035.)

Last,
a motion to compel production of documents described in a deposition notice or
deposition subpoena must be accompanied by a showing of “good cause”—i.e.,
declarations containing specific facts justifying inspection of the documents
described in the notice. (CCP §§ 2025.450(b)(1), 2025.480(b).)

Compel
Interrogatories

If a party to
whom interrogatories are directed fails to serve a timely response, the
propounding party may move for an order compelling responses and for a monetary
sanction. (Code Civ. Proc., § 2030.290,
subd. (b).) The statute contains no time limit for a motion to compel where no
responses have been served. All that need be shown in the moving papers is that
a set of interrogatories was properly served on the opposing party, that the
time to respond has expired, and that no response of any kind has been
served. (Leach v. Superior Court
(1980) 111 Cal.App.3d 902, 905–906.)

Sanctions

Sanctions are mandatory in connection with a motion to compel
responses to interrogatories against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel unless the court “finds that
the one subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.” (Code
Civ. Proc. §§ 2030.290(c).)

Discussion

A. Motion to Compel
Deposition and Production of Documents Pursuant to Subpoena

Defendant moves an order
compelling Jos. A. Bank’s Person Most Knowledgeable (PMK) to attend deposition
and produce documents pursuant to the Deposition Subpoena. (CCP § 2025.450(a).)

To establish “good
cause,” the burden is on the moving party to show both relevance and
specific facts justifying discovery (e.g., why such information is necessary
for trial preparation or to prevent surprise at trial). (Glenfed Develop.
Corp. v. Sup.Ct. (National Union Fire Ins. Co. of Pittsburgh, Penn.) (1997)
53 Cal.App.4th 1113.) Declarations may be used to show the requisite “good
cause.” Such declarations must contain “specific facts” rather than mere
conclusions. (Fireman's Fund Ins. Co. v. Sup.Ct. (Paine Webber Real Estate
Secur.) (1991) 233 Cal.App.3d 1138, 1141.)

Defendant has not made any
attempt to meet its burden to establish good cause, as no explanation is given
whatsoever as to why Defendant seeks to compel the production of documents.

Moreover, the motion is
confusing. Parts of the motion state that Plaintiff has failed to appear for
his deposition, then the motion argues that non-party Jos. A. Bank’s PMK has
failed to appear. Moreover, in the motion and defense counsel’s declaration, it
states that the PMK’s objection is attached as Exhibit B. However, Exhibit B is
just an email by an attorney stating they will not withdraw the objection. The
objection itself is missing. Thus, in any case, the Court cannot determine the
merits of this motion without the objection itself.

Defendant
requests sanctions pursuant to Code of Civil Procedure 2023.020, which states: “Notwithstanding
the outcome of the particular discovery motion, the court shall impose a
monetary sanction ordering that any party or attorney who fails to confer as
required pay the reasonable expenses, including attorney's fees, incurred by
anyone as a result of that conduct.” However, this section refers to sanctions
for the misuse of discovery under CCP section 2023.010. In a recent case, City of
Los Angeles v. PricewaterhouseCoopers, LLC (October 20, 2022, No. B310118)
___ Cal.App.___ _____,_____ (2022 WL 12010415), the Court of appeal concluded
that: "sections 2023.010 and 2023.030 do
not independently authorize the trial court to impose monetary sanctions for
misuse of discovery.” (Id.)

Nevertheless, even if Code of Civil Procedure
2023.020 applied, it is unclear how PMK’s counsel failed to meet and confer as
she explains in her email to defense counsel that she has produced the
documents, and that Plaintiff was not employed with the Company during the
relevant dates. Thus, a showing of good cause would be important here as it is
unclear why Defendant seeks to depose Jos. A. Bank’s PMK. Further, the email by
PMK’s counsel also states that if defense counsel would like to meet and confer
further, he should let her know. (Exh. B.)

Thus, Defendant’s request for sanctions is denied
as Defendant has not identified any statute which would authorize the
imposition of sanctions here, and there is no evidence of a failure to meet and
confer by PMK’s counsel.

B.
Motion to
Compel Responses to Special Interrogatories

On March 11, 2022,
Defendant propounded Special Interrogatories (set two) on Plaintiff. (Mahlstedt
Decl. Ex. A.) The responses were due on April 12, 2022. However, Plaintiff
provided no responses. (Id., ¶ 3.)

As Defendant properly served discovery
requests and Plaintiff failed to serve responses, the Court finds Defendant is
entitled to a court order directing Plaintiff to provide verified responses without
objections to the discovery requests served on Plaintiff. Therefore, the
motion is granted.

As the motion is granted, Defendant’s
request for sanctions is also granted. However, due to the simplicity of the
motions and the concurrent facts, the Court imposes sanctions in the amount of
$410 ($175 x 2 hours, plus $60 in filing fees) in favor of Defendant and
against Plaintiff and his counsel of record, Jackie Rose Kruger, jointly and
severally, to be paid within 30 days of this order.

Conclusion

Accordingly, Defendant’s
motion to compel the deposition of Jos A. Bank’s deposition and production of
documents is DENIED. Defendant’s
request for sanctions against Jos A. Bank is DENIED.

Defendant’s motion
to compel responses to Special Interrogatories is GRANTED. Plaintiff John
Gotthardt is ordered to provide verified responses without objections to the
discovery requests served on Plaintiff within 30 days.

Moving party is ordered to give notice.