Judge: Walter P. Schwarm, Case: 30-2022-01260098, Date: 2023-08-01 Tentative Ruling

Moving Party’s (Juan Carlos Orellana) Motion for Order Compelling Production of Documents from Defendant’s Deposition and for Another Deposition of Defendant (Motion), filed on 11-28-22 under ROA No. 178, is DENIED.

Code of Civil Procedure section 2025.480 states in part, “(a) If 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. [¶] (b) This 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. . . .”

It is somewhat unclear as to the relief that Plaintiff seeks.  The Motion states that Plaintiff seeks “. . . an order compelling Defendant Victor Manuel Orellana . . . to produce documents that were to be produced at his deposition and request for sanctions in the amount of $4,560.00 against Defendant and his counsel.” (Motion, 2:5-7.) Although the caption to the Motion indicates Plaintiff requests another deposition of Defendant (Victor Manuel Orellana), the Motion does not mention a request for a second deposition.  Plaintiff’s Reply to Opposition (Reply), filed on 4-11-23 under ROA No. 280, states, “Plaintiff is limiting this Motion to only the production of the old cell phone.” (Reply; 1:13.)

Based on the above, it appears that Plaintiff is seeking an order compelling production of documents responsive to Plaintiff’s “Notice of Continuance of Deposition of Defendant Victor Manuel Orrelana” (Notice) Since the Motion does not request a second deposition, the court construes the Motion as not seeking a second deposition. Plaintiff does not brief request for a second deposition, the Court will treat the request as waived.   (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (Quantum) (2011) 197 Cal.App.4th 927, 934, explains “Rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide. On the record in this case, the trial court was justified in declining to look beyond that failure.”)

Responding Party’s (Victor Manuel Orrellana) Opposition to Motion to Compel Further Production of Documents and for Leave to Conduct a Second Deposition (Opposition), filed on 4-5-23 under ROA No. 270, states, “On December 13, 2022, Defendant's counsel wrote again to Plaintiffs counsel and enclosed a verified supplemental written response to Request for Production of Documents Nos. 1-9 in the deposition notice . . . .” (Opposition; 5:1-3.)  The declaration in support of the Opposition states, “On December 13, 2022, I wrote once again to Plaintiffs counsel concerning these issues. A copy of that letter is attached hereto as Exhibit "F". That letter enclosed a copy of my prior correspondence as well as a verified written response from defendant Victor Orellana confirming that he had made a subsequent search for documents dating from January 1, 2016 and that he was unable to further respond because there were no responsive documents within his possession, custody or control.” (Shields Decl., ¶ 11; Emphasis in Decl.) 

Code of Civil Procedure section 2031.230 states, “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

On 12-13-22, Defendant served a Supplemental Response to the Notice. (Shields Decl., ¶ 11 and Exhibit F.)  The Supplemental Response states in part, “Respondent has already complied with this request as to all documents within Respondent's possession, custody, or control and dated from December 1, 2016 to present. Those documents bear control numbers VIC000l - VIC0279. As to documents dating from January 1, 2016 to December 1, 2016, Respondent has made a diligent search and reasonable inquiry to comply with the requests. Respondent is unable to comply further with these requests because any such documents (to the extent any exist which is unknown) are no longer available within the possession, custody or control of Respondent. Respondent believes that any additional documents would be within the possession, custody or control of plaintiff Juan Carlos Orellana.”

The verified Supplemental Response contains a statement of inability to comply that complies with Code of Civil Procedure section 2031.230.  Since Defendant has served a Code of Civil Procedure compliant response, there is nothing for the court to compel.

Therefore, the court DENIES  Moving Party’s (Juan Carlos Orellana) Motion for Order Compelling Production of Documents from Defendant’s Deposition and for Another Deposition of Defendant filed on 11-28-22 under ROA No. 178.  The court awards a monetary sanction against Moving Party in the amount of $1,800 because the court finds that Moving Party was not substantially justified in bringing this Motion. (Code Civ. Proc., § 2025.480, subd. (j); Shields Decl., ¶¶ 13-17.)  Responding Party had offered to “. . . provide a verified supplemental response to the request for production of documents at the deposition . . .” on 10-27-22. (Shields Decl., ¶ 9 and Exhibit D.)  In light of the offer to provide a supplemental response on 10-27-22, Moving Party was not substantially justified in bringing this Motion.

Responding Party is to give notice.