Case Name:??? Natalie Michelle Cunha v. Bich-Ha Nguyen, et al.?? ?????????????
Case No.:??????? 2012-1-CV-218582
Factual and Procedural Background
The operative first amended complaint (?FAC?) alleges claims for Violation of Uniform Trade Secrets Act and Conversion.? According to the FAC, Victor Cunha (?Victor?),[1] the father of plaintiff Natalie Michelle Cunha (?Plaintiff?), died intestate on October 29, 2011.? (See FAC at ? 5.)? Plaintiff was appointed Administrator of Victor?s Estate in October 2012 by the Probate Court.? (Ibid.)? One of the assets of the probate estate is the tax preparation business known as ?Vic?s Tax Service? which was owned and operated by Victor.? (Ibid.)? Since her appointment as Administrator of Victor?s Estate, Plaintiff has been prosecuting this action on behalf of the probate estate of Victor and no longer in her individual capacity.? (Ibid.)
Defendant Bich-Ha Nguyen, also known as Sheila Nguyen dba Vics? Tax Services (?Nguyen?), previously worked for ?Vic?s Tax Service? for a few months before Victor?s death.? (See FAC at ? 6.)? Shortly after his death, Nguyen began operating a tax preparation business under the name ?Vics? Tax Services? in San Jose, California, utilizing the common law name rights, service mark rights, client list, client files, computer equipment, fax machine, telephones, business telephone number and other property belonging to Vic?s Tax Services without the consent of Victor?s heirs.? (Ibid.)? Plaintiff alleges that Nguyen, operating under the name ?Vics? Tax Services? and using the trade secrets and property of Vic?s Tax Services was a direct and intentional infringement of the rights of Victor?s heirs.? (Ibid.)? Plaintiff also claims that Nguyen?s wrongful acts substantially interfered with her ability to operate Vic?s Tax Service for the benefit of herself and her siblings.? (Id. at ? 11.)
The trial date was initially set for February 16, 2016.? The parties stipulated to continue the trial date to June 6, 2016.? (See Declaration of Charles W. Wagner at Exhibit B.)? The stipulation also continued the Mandatory Settlement Conference to June 1, 2016 ant the discovery cut off was extended to May 10, 2016.? (Ibid.)
On April 22, 2016, Plaintiff served Nguyen with a Re-Notice of Deposition along with a Request for Production of Documents.? (See Declaration of Charles W. Wagner at Exhibit A.)? The deposition was scheduled for May 4, 2016.? (Ibid.)? Neither Nguyen nor her counsel appeared for deposition.? (Id. at ? 7.)? Thereafter, Plaintiff informed Nguyen that she would appear ex parte and request an order shortening time to file and serve a motion to compel Nguyen?s deposition and produce documents as well as monetary sanctions.? (Id. at Exhibit F.)? The Court granted the relief and the instant motion followed.
Currently before the Court is Plaintiff?s motion to compel deposition and for production of documents.? (See Code Civ. Proc., ? 2025.450.)? Plaintiff seeks an award of monetary sanctions in conjunction with the motion.? Nguyen filed written opposition.? No reply papers were filed.
Motion to Compel Deposition and for Production of Documents
Plaintiff seeks an order from the Court to compel Nguyen to appear, testify and produce documents at deposition as she failed to appear and respond to the deposition notice.? Nguyen argues that the motion should be denied as discovery is closed and Plaintiff has not moved to reopen discovery in the case.
Legal Standard
If after service of a deposition notice, the party fails to appear for examination, without having served a valid objection under Code of Civil Procedure Section 2025.410, the party giving the deposition notice may move for an order compelling the deponent?s attendance and testimony.? (Code Civ. Proc., ? 2025.450.)
Analysis???????
The critical issue in this case is whether Plaintiff?s motion to compel Nguyen?s deposition and produce documents is timely.? Plaintiff argues that she has 15 days before the new trial date to file any motion to compel.? Nguyen claims that discovery closed on May 10, 2016 and thus Plaintiff was required to move to reopen discovery.? Having failed to do so, Nguyen argues that the motion should be denied.
Discovery proceedings must be completed 30 days before the date initially set for trial, and discovery motions must be heard no later than 15 days before the date initially set for trial. (Code Civ. Proc., ? 2024.020, subd. (a).)? Discovery proceedings are deemed completed on the day a deposition begins, and other discovery proceedings (interrogatories, requests for admissions, etc.) are deemed completed the day the response is due. ?(Code Civ. Proc., ? 2024.010.)? A continuance or postponement of trial does not operate to automatically reopen discovery proceedings.? (Code Civ. Proc., ? 2024.020, subd. (b).)
However, ?[o]n motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.? This motion shall be accompanied by a meet and confer declaration under [Code of Civil Procedure] Section 2016.040.?? (Code Civ. Proc., ? 2024.050, subd. (a).)
As stated above, trial was initially set for February 16, 2016.? The parties stipulated to continue the trial date to June 6, 2016.? The stipulation also extended the discovery cut off to May 10, 2016.? Plaintiff now moves to compel Nguyen to testify and produce documents at deposition at a time following the discovery cutoff.? Plaintiff claims that her motion is proper as she has 15 days before trial to file the motion.? This argument is misplaced as the 15 day cutoff is measured from the date initially set for trial.? (See Code Civ. Proc., ? 2024.020, subd. (a).)? Nor did the parties stipulate to have 15 days before the new trial date to file any motion to compel.? As a new trial date has been set, Code of Civil Procedure Section 2024.050, subdivision (a) applies and Plaintiff was required to file a noticed motion to reopen discovery.? Plaintiff did not make a motion to reopen discovery and thus discovery remains closed and the Court cannot entertain Plaintiff?s motion to compel deposition.? (See Pelton-Shepherd Indus., Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586-1587 [holding trial court abused its discretion in hearing belated motion to compel discovery without first deciding whether to reopen discovery].)
Accordingly, the motion to compel deposition and for production of documents is DENIED.
Request for Monetary Sanctions?
Plaintiff?s request for monetary sanctions is DENIED on the following grounds: (1) Plaintiff did not prevail on the motion; and (2) the Notice of Motion fails to request sanctions against Nguyen or her counsel.? (See Code Civ. Proc., ? 2023.040 [?A request for 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.?].)
Footnotes:
[1] The Court refers to Victor Cunha by his first name for purposes of clarity.? No disrespect is intended.? (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)