Judge: Yolanda Orozco, Case: 21STCV05818, Date: 2023-03-15 Tentative Ruling
Case Number: 21STCV05818 Hearing Date: March 15, 2023 Dept: 31
MOTION
TO COMPEL FURTHER PRODUCTION
REGARDING DEPOSITION NOTICE
TENTATIVE RULING
Plaintiff’s Motions to Compel and Request for Sanctions are DENIED.
The Court also DENIES
Defendant’s request for sanctions.
Background
On February 11, 2021, Manuel M. Mora (“Plaintiff”) a
Complaint against Arrow Disposal Services, Inc., Kirk Tahmizian (collectively
“Defendants”), and Does 1 to 20 for:
1)
Employment Discrimination
Based on Disability and Age in Violation of FEHA (Gov. Code §12940(a));
2)
Failure to Provide Reasonable
Accommodation, Pursuant to Government Code §12940(m);
3)
Failure to Engage in a Timely
and Good Faith Interactive Process, Pursuant to Government Code §12940(n);
4)
Retaliation, Pursuant to
Government Code §§12940(h) and 12940(m);
5)
Failure to Prevent
Discrimination and Retaliation, Pursuant to Government Code §12940(k);
6)
Harassment in Violation of
Government Code §12940(h);
7)
Failure to Pay Overtime Wages
(Labor Code §510);
8)
Failure to Pay Minimum Wages
(Labor Code §1197);
9)
Failure to Provide Meal
Periods (Labor Code §226.7);
10)
Failure to Provide Rest
Periods (Labor Code §226.7);
11)
Failure to Provide Accurate,
Itemized Wage Statements (Labor Code §226);
12)
Failure to Pay All Wages Due
Upon Termination (Labor Code §203);
13)
Retaliation in Violation of
Labor Code §1102.5;
14)
Wrongful Discharge in
Violation of Public Policy;
15)
Violation of Business and
Professions Code §§17200, et seq.; and
16)
Private Attorney General Act
(Labor Code § 2699, et seq.)
On November 15, 2022, Plaintiff filed a Separate Statement
in support of its Motion to Compel.
On February 27, 2023, an Amended Motion to Compel the
Depositions of (1)Defendants Custodians of Record; (2) Persons Most
Knowledgeable; (3) Employee Rachel Sanchez; (4) Employee Saul Aguilar; and
Employee Paul Kawarski and Request for Sanctions was filed.
Plaintiff submitted an amended Exhibit List on March 01,
2023.
Defendant filed opposing papers on March 01, 2023.
Plaintiff filed a reply on March 08, 2023.
Legal Standard
“If a deponent fails to answer any question . . . 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.” (Id., subd. (i).)¿¿
A motion to compel under Code Civ. Proc., section 2025.480,
“…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(b).) The 60-day deadline
is mandatory. (Unzipped Apparel, LLC v. Bader (2007)¿156 Cal.App.4th
123, 136.)¿¿
Monetary sanctions are mandatory
against an unsuccessful moving or opposing party unless they acted with
substantial justification or imposition of sanctions would be unjust. (Code
Civ. Proc., § 2025.480, subd. (j).)
To prevail, a party moving for an order compelling further
responses to deposition questions must make “a fact-specific showing of
relevance.”¿ (TBG Ins. Servs. Corp. v. Superior Court (2002) 96
Cal.App.4th 443, 448 [analogous rule for document production].) If “good cause”
is shown by the moving party, the burden shifts to the responding party to
justify any objections made.¿ (Kirkland v. Superior Court (2002) 95
Cal.App.4th 92, 98 [analogous rule for document production].)¿
Discussion
Plaintiff’s Amended Motion is DENIED as it is untimely and procedurally defective.
First, Plaintiff’s motion violated the notice of hearing requirements under the Code of Civil Procedure section 1005, subdivision (b). The original motion is not filed with the Court. However, Plaintiff’s Amended Motion was filed on February 27, 2023, and the Motion was served by email on Defendant on February 24, 2023. Section 1005(b) requires that “all moving and supporting papers” be filed “at least 16 days before the hearing.” (Code Civ. Proc., § 1005 subd. (b).) Since Plaintiff’s supporting papers (Separate Statements) were not filed and served on Defendant until March 01, 2023, the same day Defendant filed its opposition, Plaintiff’s motion was untimely since it only afforded Defendant 14 calendar days to reply. (See Weinstein v. Blumberg (2018) 25 Cal.App.5th 316 [finding that a party who files a notice of a motion but fails to serve supporting papers until 15 days before the hearing makes the motion untimely and prejudicial to the opposing party].)
Even more egregious, Plaintiff’s motion failed to contain a notice of motion as required by Section 1010, which states, in part:
“Notices must be in writing, and the notice of a motion, other than for a
new trial, must state when, and the grounds upon which it will be made, and the
papers, if any, upon which it is to be based. If any such paper has not
previously been served upon the party to be notified and was not filed by him,
a copy of such paper must accompany the notice.”
(Code Civ. Proc., § 1010)
For the same reason, the Court cannot award Plaintiff sanctions since no notice was filed with the Amended Motion:
“A request for a sanction shall, in the
notice of motion, identify every person, party, and attorney against whom the
sanction is sought, and specify the type of sanction sought. The notice of
motion shall be supported by a memorandum of points and authorities, and
accompanied by a declaration setting forth facts supporting the amount of any
monetary sanction sought.”
(Code Civ.
Proc., § 2023.040.)
Prior notice of imposition of sanctions is not only a statutory requirement but also mandated by the due process clause of the state and federal constitutions. (See In re Marriage of Fuller (1985) 163 Cal.App.3d 1070, 1077; see also Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 320.)
Without the notice of the motion, the Court cannot ascertain upon what grounds Plaintiff seeks relief or the basis for its sanctions request. Plaintiff asserts that it is seeking motions to compel depositions because although the deponents were deposed in January of 2023, no documents were produced in response to the deposition notice.
Code of Civil Procedure section 2025.480 provides for the compelling of answers and documents in response to a deposition notice or subpoena. The Court in Weinstein characterized such a motion as a motion to compel further: “Section 2025.480, subdivision (b) provides that any motion to compel further production regarding a deposition notice or subpoena . . . .” (Weinstein, supra, 25 Cal.App.5th at 320.) This Court’s Standing Order requires that an Informal Discovery Conference (“IDC”) be held prior to the hearing on a party’s motion to compel further.
Lastly, Plaintiff improperly combined five (5) motions to compel into a single motion. (See Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011) [“Motions to compel compliance with separate discovery requests ordinarily should be filed separately.”]) Filing multiple motions as a single motion negatively impacts the Court’s calendar by placing more motions on the calendar than slots have been provided by the online reservation system and unfairly jumps ahead of other litigants. In addition, combining discovery motions allows the moving party to avoid paying the requisite filing fees required for each motion. Statutorily required filing fees are jurisdictional and “it is mandatory for the court clerks to demand and receive statutorily required filing fees.” (See Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 460.)
Based on the foregoing, Plaintiff’s Motion and Request for Sanctions is DENIED.
Defendant’s request for Sanctions is also DENIED.
Conclusion
Plaintiff’s Motions to Compel and Request for Sanctions are DENIED.
The Court also DENIES Defendant’s request for Sanctions.
Moving party to give notice.