Case Number: BC594170??? Hearing Date: May 31, 2016??? Dept: O
Palmer, et al. v. Cordova (BC594170)
1. Plaintiffs R. and K. Palmer?s MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO SECOND SET OF FORM INTERROGATORIES
Respondent: Defendant Cordova
2. Plaintiffs R. and K. Palmer?s MOTION FOR ORDER COMPELLING DEFENDANT TO ATTEND AND TESTIFY AND TO PRODUCE DOCUMENTS AT HIS DEPOSITION
Respondent: Defendant Cordova
TENTATIVE RULING
1-2. Plaintiffs R. and K. Palmer?s motion for order compelling further answers to second set of form interrogatories is MOOT.
Plaintiffs R. and K. Palmer?s motion for order compelling defendant to attend and testify and to produce documents at his deposition is GRANTED. Defendant is ordered to appear at the next properly noticed deposition.
Sanctions as to both motions are imposed against Defendant and counsel, jointly and severally, in the reasonable sum of $3,210.00 payable within 30 days.
The court critically notes that Defendant filed a late opposition only 5 court days before hearing, instead of the required 9 court days, per CCP 1005(b).
CCP 2030.300 allows a party to file a motion compelling further answers to interrogatories if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. The motion shall be accompanied with a meet and confer declaration. (CCP 2030.300(b).)
If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice. (CCP 2025.450(a).) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document or tangible thing described in the deposition notice; and shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (CCP 2025.450(b).)
The motion to compel further responses to form interrogatories is MOOT. Supplemental responses were served on 5/13/16.
As to the motion to compel Defendant?s deposition, the court finds that Defendant did not adequately serve a valid objection under CCP 2025.410. Instead, defense counsel?s ?objection? was buried in a fax transmittal dated 3/21/16, concerning a separate issue (i.e. motion to strike the FAC). In the last paragraph of that letter, counsel stated that she would be unavailable on 3/24/16, and she would ?be in contact with a proposal for alternative dates.?
Even if this paragraph was construed to be a formal ?objection,? it was not ?personally served? pursuant to CCP 2025.410(b), and therefore, untimely. Further, Plaintiffs? counsel did not receive any further communication from defense counsel prior to the deposition regarding alternative dates.
After Defendant?s failure to appear, Plaintiffs attempted to meet and confer again, and notified Defendant that if the parties could not agree to a new date by 3/28/16, then Plaintiffs would have to file a motion. Defense counsel telephoned Plaintiff?s counsel, and promised that she would supply alternative dates ?before the end of the day and certainly by your deadline? of 3/28/16. After waiting, but not hearing from counsel by the deadline, Plaintiffs filed the instant motion.
In opposition, defense counsel contends that she attempted to meet and confer on 3/28/16, but the motion was filed the very next day. However, Defendant?s attempt to meet and confer was by correspondence, and not by telephone nor in person. Given the fact that the deadline had come and gone that very day, such letter attempt is unreasonable. Counsel should attempt to contact opposing counsel via a more expedient method such as the telephone.
Given Defendant?s initial failure to appear, and lack of response regarding alternative deposition dates, the court finds that the motion is necessary and proper. Motion is GRANTED. Defendant is ordered to appear at the next properly noticed deposition.
Sanctions:
CCP 2030.300(d) authorizes the court to impose a sanction against any party/attorney who unsuccessfully makes or opposes a motion to compel further responses, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. If a motion under subdivision (a) is granted, the court shall impose a monetary sanction 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. (CCP 2025.450(c)(1).)
Here, sanctions are appropriate because Defendant failed to serve timely and complete responses to discovery, and failed to appear at a properly noticed deposition without having served a valid objection. The court finds Plaintiffs? total request of $3,210.00 is reasonable. Sanctions are imposed against Defendant and counsel, jointly and severally, in the reasonable sum of $3,210.00 payable within 30 days.