Case Name:??? Paul Bains, et al. v. Sugher Singh, et al.
Case No.:??????? 2015-1-CV-285951
MOTION BY PLAINTIFFS TO COMPEL ATTENDANCE AT DEPOSITION BY DEFENDANT AND FOR MONETARY SANCTIONS
??????????? This is an action for breach of contract brought by Plaintiffs Paul Bains, Global Finance, and SGC Partners, LLC against Defendant Sugher Singh.? According to the allegations in the complaint, Plaintiffs orally agreed to loan Defendant $75,250 at an annual interest rate of 10%.? Defendant agreed to repay the loan by selling real property, but failed to do so.
Defendant filed a cross-complaint against Plaintiffs asserting causes of action for breach of contract and fraud.? Defendant alleges that Plaintiffs orally agreed to make him a business partner and pay him a salary of $3,500 per month.? Defendant claims Plaintiffs failed to pay his salary and now owe him $107,694.
The current discovery dispute currently arises out of Plaintiffs? attempts to depose Defendant.? Before noticing Defendant?s deposition, Plaintiffs? counsel emailed Defendant?s counsel memorializing previous discussions regarding discovery and requesting possible dates for Defendant to be deposed.? (Viri Decl., Exh. 1.)? There is no evidence that Defendant?s counsel responded to this email.? On February 5, 2016, Plaintiffs served Defendant with a deposition notice requiring him to appear for examination and to produce documents on February 22, 2016 in Tracy.? (Viri Decl., Exh. 2.)
On February 16, Defendant?s counsel emailed Plaintiffs? counsel proposing the parties agree to postpone the deposition until after they propounded written discovery and suggesting Plaintiffs could obtain the information they sought through interrogatories and inspection demands.? (Viri Decl., Exh. 3.)? That same day, Plaintiffs? counsel responded by rejecting this proposal and stating: ?Plenty of time has passed for propounding written discovery.? I believe that I can get the discovery I need from the deposition duces tecum.?.?.?.?? (Opp., Exh.?A.)? In response, Defendant?s counsel (1) clarified that Defendant sought to reschedule the oral deposition, (2) reaffirmed the same discovery could be obtained through other means, and (3) indicated Defendant was prepared to move to quash the deposition notice and for a protective order.? (Opp., Exh. B.)? Plaintiffs? counsel once again rejected the proposals and arguments made by Defendant?s counsel and indicated his intent to move forward with the deposition.? (Opp., Exh. C.)
The following morning, Plaintiffs? counsel and Defendant?s counsel continued to discuss possible deposition dates.? (Opp., Exh. C.)? In follow-up emails, Defendant?s counsel reiterated Defendant?s inability to appear for examination on February 22 as his wife had a biopsy, and proposed he appear for examination during the first week of March at the offices of Defendant?s counsel in Santa Clara.? (Ibid.)? Plaintiffs? counsel stated that he would await a doctor?s note confirming Defendant?s stated reason for unavailability before rescheduling the deposition.? (Opp., Exh. D.)? At some point on February 17, Defendant served Plaintiffs with objections to the deposition notice.? (Viri Decl., Exh. 4.)? Therein, Defendant indicated he could not attend the deposition on February 22 because he was responsible for the care of his ill wife, including driving her to medical appointments at Kaiser Permanente.? (Ibid.)
On the morning of February 18, Defendant?s counsel emailed Plaintiffs? counsel a note signed by William Albert Jensen, M.D. stating ?[Defendant] needs to care for his wife who has an ongoing medical problem.? He will be unable to travel or work Monday-Friday 2/22/16-2/26/16.?? (Opp., Exh. E.)? That same day, Plaintiffs served Defendant with a second deposition notice requiring him to appear for examination and produce documents on March 7, 2016 at his attorney?s office. (Viri Decl., Exh. 5.)
On February 25, 2016, Defendant?s counsel informed Plaintiffs? counsel that Defendant could no longer appear at the deposition now noticed for March 7 as his wife?s liver cancer had returned.? (Opp., Exh. F.)? Plaintiffs? counsel received confirmation from Kaiser Permanente indicating Defendant?s wife indeed had a medical appointment on March 7.? (Viri Decl., ??9.)? Accordingly, Plaintiffs? counsel took the deposition off calendar.? (Ibid.)? Defendant?s counsel indicated new proposed dates for the deposition would be forthcoming, but there is no evidence any additional dates were ever proposed.? (Opp., Exh. F.; Viri Decl., ? 10.)
On March 11, 2016, Plaintiffs served Defendant with a third deposition notice requiring him to appear for examination and produce documents on March 31 at his attorney?s office.? (Viri Decl., Exh. 6.)? On the day of the deposition, Plaintiffs? counsel traveled to the office of Defendant?s counsel.? (Viri Decl., ? 11.)? Just before the deposition was scheduled to start, Defendant?s counsel informed Plaintiffs? counsel that Defendant would not be appearing because he had taken his wife to the hospital that morning due to a medical emergency that arose the night before.? (Viri Decl., ??11.)? Consequently, on April 21, Plaintiffs filed this motion to compel compliance with the deposition notice and accompanying request for sanctions.
After Plaintiffs filed their motion, the parties continued to meet and confer.? (Opp., Exhs.?G-J.)? The most recent correspondence between Plaintiffs? counsel and Defendant?s counsel suggests they were attempting to depose Plaintiffs and Defendant on the same day.? (Opp., Exh. I.)? The parties proposed May 11 and May 17, but have not advised whether a firm date was ultimately agreed upon.??
Analysis of Motion ?
A party may move for an order compelling compliance with a deposition notice if (1)?the?party served a deposition notice, (2) the deponent did not serve a valid objection, and (3) the deponent failed to appear for examination at the deposition.? (Code Civ. Proc., ??2025.450, subd. (a).)? ?The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce documents. . . by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.?? (Code Civ. Proc., ??2025.450,?subd. (b)(2).)? ?Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue.?? (Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124.)
Here, Plaintiffs served Defendant with the third deposition notice; Defendant did not serve objections to that notice; and Defendant failed to appear at the deposition on March 31.? Plaintiffs? counsel attests that at the time he filed the motion, he had not heard anything else from Defendant?s counsel about the medical emergency that precluded Defendant from attending the deposition, which suggests that no alternative dates were offered.? While Plaintiffs? counsel might have inquired more, it was ultimately reasonable to turn to the court to secure a date for the deposition given his numerous attempts to solicit agreeable dates before serving each of the three deposition notices and the repeated cancellations by Defendant.? It is thus clear that Plaintiffs both inquired about Defendant?s nonappearance and listened to his reasons for nonappearance in a good faith attempt to find an agreeable date for his deposition.? Plaintiffs therefore met their burden to compel Defendant?s attendance for deposition.
??????????? In opposition, Defendant provides no sworn declaration.? Defendant argues that he should not be deposed at all because of his obligation to care for his ill wife, but has provided no evidence.? He relies on Code of Civil Procedure section 2019.030, subdivision (a), which allows the court to limit the frequency or use of a particular discovery method if the ?discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.?? The court may also limit discovery if the particular discovery method is unduly burdensome.? (Ibid.)
Defendant ignores subdivision (b), which states that the court ?may make these determinations pursuant to a motion for a protective order by a party or other affected person.?? Defendant?s reliance on subdivision (a) is misplaced as he has not made a motion for a protective order, and cites no authority permitting a request for a protective order pursuant to Code of Civil Procedure section 2019.030, subdivision (a) to be raised in opposition to a motion to compel.? He otherwise offers no justifiable reason for avoiding deposition altogether.
Defendant also objects to the document requests in the deposition notice and complains that there were no meet and confer efforts regarding the same.? Such objections are premature.
Service of a deposition notice is effective to require any witness to appear and testify at a deposition ?as well as to produce any document . . . or tangible thing for inspection.? ?(See Code Civ. Proc., ? 2025.280, subd. (a).) ?The statute contemplates that when a deponent is required to produce documents at the deposition, the deponent may object to the production of such documents at the deposition itself. ?(See Carter v. Superior Court (1990) 218?Cal.App.3d 994, 997 [noting difference between written inspection demands and demands for inspection contained in a deposition notice].)
Accordingly, Defendant may object to the inspection demands when he attends the deposition.? The parties would then be required to meet and confer as to the merits of any objections raised at the deposition before Plaintiffs could move to compel production of documents.? (See Code Civ. Proc., ??2025.480, subd. (b).)
In conclusion, Plaintiffs? motion to compel Defendant to attend a deposition is GRANTED.? Defendant shall appear for his deposition at the office of Plaintiffs? counsel at 9:00 a.m. on Monday, May 23, 2016, unless the parties agree in writing to a different time and place.
Request for Monetary Sanctions
??????????? The statutory default is that when a motion to compel is granted, monetary sanctions are imposed. Plaintiffs request an award of monetary sanctions in the amount of $3,157.50 against Defendant and his counsel pursuant to Code of Civil Procedure section 2025.450, which provides: ?If a motion [to compel attendance or production] is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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., ??2025.450, subd. (g)(1).)
The statute does not authorize an award of monetary sanctions against the deponent?s attorney.? Accordingly, Plaintiffs? request is improper to the extent it seeks an award against Defendant?s counsel.? As to Defendant, he has not explained how he was substantially justified in opposing the motion or that circumstances would make the imposition of sanctions unjust.
The amount Plaintiffs request includes a $60 filing fee, $215 for the court reporter?s attendance at the deposition on March 31, and $82.50 in vehicle expenses (at?a rate of 55 cents per mile), which Plaintiffs? counsel incurred traveling to the deposition.? Plaintiffs? counsel states it took him 4 hours to travel to and from the deposition and 4 hours to prepare the motion.? After accounting for the itemized costs, the balance of Plaintiffs? request is $2,800.00, which reflects 8 hours of attorney time at a rate of $350.00 per hour. Plaintiffs? counsel?s claimed hourly rate of $350.00 is reasonable.
Plaintiffs are entitled to the expenses incurred in going to the deposition in the amount of $1,697.50.? This includes the court reporter fee, vehicle expenses, and 4 hours of attorney time at a rate of $350.00 per hour.? Plaintiffs could not avoid incurring these expenses as there is no evidence that they were given prior notice of Defendant?s nonappearance sufficient to avoid these expenses.
Four hours of attorney time is reasonable to prepare both the moving papers and the reply.? Accordingly, the remaining $1,460.00 requested by Plaintiffs is also reasonable.
??????????? Plaintiffs? request for sanctions is therefore GRANTED.? Defendant shall pay $3,157.50 to Plaintiffs? counsel within 10 calendar days of notice of this order.? This amount does not include fees incurred in connection with any hearing on this motion.