Judge: Teresa A. Beaudet, Case: 21STCV23520, Date: 2023-08-10 Tentative Ruling

Case Number: 21STCV23520    Hearing Date: October 23, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiffs C&M Investment Group, Ltd. and Karlin Holdings Limited Partnership (jointly, “Plaintiffs”) filed this action on June 23, 2021 against Defendant Harvey Champlin, asserting causes of action for (1) intentional interference with contractual relations, and (2) intentional interference with prospective economic benefit.

On October 24, 2022, Plaintiffs served third-party witness Philip Richard Powers (“Powers”) with a deposition subpoena for personal appearance and production of documents and things. (Schweitzer Decl., ¶ 2, Ex. A.) Powers appeared for deposition on November 30, 2022. (Schweitzer Decl., ¶ 3, Ex. B.)

On January 17, 2023, Plaintiffs filed an Informal Discovery Conference (“IDC”) Statement stating, inter alia, that “Plaintiffs seek an IDC regarding third-party witness Philip Richard Powers’s deposition. Powers refused to answer on Fifth Amendment grounds virtually any of Plaintiffs’ questions aside from his name, address, and number.”

On February 17, 2023, an IDC was held. The Court’s February 17, 2023 minute order provides, inter alia, that “[t]he matter is called for hearing. The third party, Phillip Powers is not present for the Informal Discovery Conference held February 17, 2023 at 11:30 a.m. in Department 50. Plaintiff has fulfilled its Informal Discovery Conference obligation and may proceed with a Motion to Compel further regarding deposition responses by Mr. Powers.”

Plaintiffs now move “for an order compelling…Philip Richard Powers to provide responses to questions during the November 30, 2022 deposition taken pursuant to California Code of Civil Procedure Section 2025.480 et seq. on the basis that Mr. Powers’ invocations of the Fifth Amendment privilege to refuse to answer were improper.” No opposition to the motion was filed.

Discussion  

Any party may obtain discovery by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

Pursuant to Code of Civil Procedure section 2025.480, subdivision (a), “¿[i]f a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.¿”¿(¿¿Code Civ. Proc., § 2025.480, subd. (a)¿¿.)¿“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc., § 2025.480, subd. (i).) In addition, “[t]his motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under¿¿Section 2016.040¿.” (¿Code Civ. Proc., § 2025.480, subd. (b)¿.) 

As an initial matter, the Court notes that the instant motion is not “accompanied by a meet and confer declaration…” (¿Code Civ. Proc., § 2025.480, subd. (b)¿.) 

In addition, Plaintiffs do not demonstrate that this motion was “made no later than 60 days after the completion of the record of the deposition…” (¿Code Civ. Proc., § 2025.480, subd. (b)¿.) Plaintiffs do not appear to state when the record of deposition was completed. However, Powers’ deposition took place on November 30, 2022, and the Reporter’s certification attached to the transcript is dated December 1, 2022. (Schweitzer Decl., ¶ 3, Ex. B.) The instant motion was filed on March 20, 2023, over 60 days after December 1, 2022.

In addition, the Court notes that pursuant to California Rules of Court, rule 3.1346, “[a] written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” Here, the proof of service attached to the instant motion indicates that Powers was served with the motion “by U.S. Mail.” Plaintiffs do not appear to provide any evidence demonstrating that Powers agreed to accept service by mail. Thus, the Court does not find that Plaintiffs have demonstrated that the requirements of California Rules of Court, rule 3.1346 have been satisfied here.

In light of the foregoing procedural issues, the Court denies the instant motion.

Conclusion 

Based on the foregoing, Plaintiffs’ motion is denied.

Plaintiffs are ordered to give notice of this order. 

DATED:  October 23, 2023                                    ________________________________ 

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court