Case Number:??BC598021
THAKOR I. PATEL, ET AL VS 8300 SOUTH VERMONT, L.P., ET AL
7/25/2017
Motion to Compel Production of Documents Per Notice of Deposition
Future Hearings:
8/11/2017?Conference-Post Mediation/ Further Status Conference
8/24/2017?Motion to Compel
10/05/2017?Motion for Summary Adjudication
10/10/2017?Final Status Conference
10/25/2017?Jury Trial
TENTATIVE RULING
Motion per CCP ?2025.480(b) For Order Compelling Production of Documents Requested in Deposition Notice for PMQ for Defendant FOS, LLC, and for sanctions, is DENIED. As FOS, LLC takes the position that it cannot find the responsive documents, and there is insufficient documentation of its actual attempts to do so, in order to protect against later surprise discovery of such documents, Plaintiff should serve a Demand for Production to secure a verified response to the Demand to Produce. Defendant?s request for sanctions is also DENIED.
DISCUSSION
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Plaintiff alleges that Defendants induced Plaintiff to purchase a commercial property located at 6401 Haven Avenue, Rancho Cucamonga by concealing certain material facts, which has caused Plaintiff damages.
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The PMQ deposition was noticed on 3/13/17. (Declaration of Eugene S. Suh [hereinafter ?Suh Dec.?] Exhibit A). Document production was requested as part of the deposition notice.
The time for objections was extended by stipulation up to the date of the deposition, 3/21/17. (Id. Exhibit B).
No objections were served, and no documents referred to in the deposition notice were produced at the deposition. (Id. ??5, Exhibit C).
Extensive further efforts to meet and confer produced no results. (Id. Exhibits D-F).
CCP ??2025.480 states in relevant part as follows:
?(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.
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(i) 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.
(j) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, 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.?
FOS, LLC represents that it cannot produce responsive documents because it has nothing left to produce which has not already been produced. FOS, LLC correctly points out that there is no statutory requirement that it respond to a deposition notice with either objections or a specific statement of inability to produce. Such a requirement exists only in reference to Requests for Production served in the alternate course of discovery authorized by CCP ?2031.210.
The PMQ in the deposition informed P?s counsel that he could not produce documents because he could not find them. (Suh Dec. Exhibit C).
Understandably unimpressed with this response, Plaintiff?s counsel attempted to meet and confer and determine when the documents might be produced. (Id. Exhibit D). During the meet and confer correspondence, which largely consisted of reasonable scheduling issues, counsel for Defendant FOS, LLC never raised the point that it has no more responsive documents to produce. Now that counsel has done so, it appears that there is nothing for this court to order produced. If counsel for Plaintiff wishes to know where the documents are or what his chances are of obtaining them, he will have to resort to the ordinary course of discovery.
Sanctions are DECLINED. D FOS, LLC is not required to produce documents it does not have, or to produce a response stating what it does not have and why in response to a deposition notice with demand to produce documents. FOS, LLC?s failure to produce is therefore sufficiently justifiable, especially in light of the fact that its PMQ told opposing counsel that D FOS, LLC did not have the documents. The concern of counsel for Plaintiff over the imprecision of the answer of the PMQ that the documents could not be found is likewise understandable. Therefore, both parties acted with substantial justification.