Case Name: Robert Flowers, et al. v. Vidyut Gopal, et al.
Case No.: 2014-1-CV-266515

Currently before the Court are: (1) defendants Vidyut Gopal (“Gopal”) and Parul Agrawal’s (“Agrawal”) (collectively, “Defendants”) motion to compel plaintiffs Kumaran Santhanam (“Santhanam”) and Bindu Pothen (“Pothen”) to appear for their depositions and produce documents and to appoint a discovery referee; and (2) Defendants’ motion to compel plaintiffs Robert Flowers (“Robert”) and Marci Flowers (“Marci”) to appear for their depositions and produce documents and to appoint a discovery referee.

I. Factual Background

This is an action arising from a dispute among neighbors concerning the activities of Minor, the son of Defendants. In their operative complaint, plaintiffs Marci, Robert, Pothen, and Santhanam (collectively, “Plaintiffs”) allege the following: Plaintiffs are next-door neighbors of Defendants. (Compl., ¶ 12.) From 2007 until 2014, Minor, a developmentally challenged child, engaged in a course of violent and aggressive conduct toward Plaintiffs and their children which his parents did nothing to prevent. (Compl., ¶ 21, 23-25, 31-34, and 38.) In their complaint, Plaintiffs assert eight causes of action against Minor and Defendants for: (1) abatement of public nuisance; (2) abatement of private nuisance; (3) negligence; (4) trespass; (5) battery; (6) negligence – parental liability; (7) willful misconduct; and (8) negligent infliction of emotional distress.

II. Discovery Dispute

On April 8, 2016, Defendants served notices of deposition and attendant requests for production of documents on each plaintiff, with the depositions scheduled to take place between May 13 and May 19, 2016.

On May 6, 2016, the parties appeared for a case status conference. At that time, Robert and Marci requested that Marci’s deposition be moved due to her unavailability until after June 2, 2016. In addition, Santhanam and Robert stated that their depositions could not proceed until they consulted their legal advisor. At the conclusion of the conference, Plaintiffs represented that they would provide available dates for their depositions no later than May 13, 2016. Plaintiffs, however, did not provide Defendants with their availability by that date or appear for their depositions.

After Defendants’ counsel made several attempts to reschedule Plaintiffs’ depositions, Plaintiffs sent a joint letter in response on May 27, 2016, stating that they would not appear for their depositions until Defendants provided responses to all outstanding written discovery. Despite additional efforts to meet and confer, the parties were unable to resolve the dispute informally.

On June 28, 2016, Defendants filed the instant discovery motions, in which they request monetary sanctions. On July 1, 2016, Plaintiffs filed ex parte applications to quash service of these motions. The Court denied the applications but extended Plaintiffs’ time to file their opposing papers to July 15, 2016. On July 15, 2016, Santhanam and Pothen filed their joint opposition, in which they request monetary sanctions. On July 18, 2016, Marci and Robert filed their untimely opposition, in which they request monetary sanctions. Defendants filed their replies to Plaintiffs’ oppositions on July 19, 2016. That same day, Santhanam and Pothen filed a surreply.

III. Motions to Compel Depositions

Pursuant to Code of Civil Procedure section 2025.450, Defendants move for an order compelling Plaintiffs to attend their depositions and produce the documents requested in the deposition notices.

A. Legal Standards

If, after service of a deposition notice, a party to the action, without having served a valid objection to the deposition notice, fails to appear for deposition or produce documents for inspection, the party giving the notice may move for an order compelling the deponent’s attendance and testimony. (Code Civ. Proc., § 2025.450, subd. (a).) To compel the production of documents requested in a deposition notice, the moving party is required to “set forth specific facts showing good cause justifying the production.” (Code Civ. Proc., § 2025.450, subd. (b)(1).)

B. Procedural Issue

Preliminarily, Robert and Marci claim that the motion should be denied because Defendants did not properly serve them with the motion.

Service of a motion may be accomplished by personal delivery to the party or by delivery to the party’s attorney. (Code Civ. Proc., § 1011.) Additionally, service on a party may be effectuated by leaving the motion papers with an adult at the party’s residence. (Code Civ. Proc., § 1011, subd. (b).) If no adult can be found at the residence, service may be by mail to that address. (Code Civ. Proc., § 1011, subd. (b).) If the party’s residence is unknown, then service may be made by delivering the papers to the clerk of the court. (Code Civ. Proc., § 1011, subd. (b).)

Here, Robert and Marci are unrepresented parties. As such, Defendants needed to personally serve the motion on them, leave the motion with an adult at their residence, serve the motion to the residence by mail, or deliver the papers to the clerk of court. Since Defendants instead left the papers with an attendant at a private mailbox service, they did not properly serve the motion on Robert and Marci. (See Robert Decl., ¶¶ 3, 6.)

Nevertheless, Robert and Marci submitted an opposition addressing the merits of Defendants’ motion. Opposing a motion on its merits constitutes a waiver of any defect in service. (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Accordingly, the motion will not be denied on this basis.

C. Evidentiary Objections

In connection with their reply, Defendants assert several objections to the evidence submitted by Pothen and Santhanam in support of their opposition. There is no authority, however, holding that a court must rule on an evidentiary objection made in connection with a discovery motion. Accordingly, the Court decline to rule on these objections.

D. Attendance at Deposition

Defendants contend that the motion to compel Plaintiffs’ attendance at deposition should be granted because they failed to appear at the time and place provided in the deposition notices. In this respect, they submit evidence indicating that: they served the deposition notice on each plaintiff; they agreed to reschedule the depositions if Plaintiffs provided available dates in early June 2016; Plaintiffs did not provide new dates for their depositions; and Plaintiffs did not appear at their previously scheduled depositions. (McWilliams Decl., ¶¶ 23, 32, 40, 43.)

In their opposing papers, Plaintiffs argue that they did not fail to appear for their depositions because Defendants agreed to withdraw their notices of deposition on May 6, 2016. In this respect, they rely solely on the declaration of Anne McWilliams (“McWilliams”), Defendants’ attorney. However, the declaration makes clear that the withdrawal of the notices of deposition was contingent on Plaintiffs’ provision of new dates for their deposition in June 2016. (McWilliams Decl., ¶ 40.) Plaintiffs do not dispute that they never provided alternative dates for their depositions to Defendants. As such, Defendants were not obligated to withdraw the notices of deposition.

Next, Santhanam and Pothen contend that they should not have to appear for their depositions because Defendants refuse to provide dates for their own depositions. This argument is not well-taken. Defendants’ apparent refusal to comply with their own discovery obligations does not excuse Santhanam and Pothen from participating in discovery. (See Weldon v. Dyer (E.D. Cal., Apr. 9, 2015, No. 1:13-CV-00540-LJO) 2015 WL 1606966, at *5 [rejecting argument that a plaintiff need not fulfill their discovery obligations due to the defendants’ bad faith conduct because “[a]s the adage goes, ‘two wrongs do not make a right’”]; JSR Micro, Inc. v. QBE Ins. Corp. (N.D. Cal., Apr. 5, 2010, No. C-09-03044 PJH (EDL)) 2010 WL 1338152, at *7 [providing that allegedly improper discovery conduct by one party does not permit the opposing party to act in the same manner].)

In light of the foregoing, Defendants’ motions to compel Plaintiffs’ attendance and testimony at deposition are GRANTED. Accordingly, within 20 calendar days of the filing of the Court’s order, Plaintiffs shall appear for their depositions at a time and place mutually agreed upon by the parties.

E. Production of Documents

Defendants’ motions as they pertain to Plaintiffs’ production of the documents requested in their deposition notices are premature. The service of a deposition notice is effective to require the deponent to appear and testify at a deposition at the location, date, and time specified in the notice. (Code Civ. Proc, § 2025.280, subd. (a).) The statute contemplates that a deponent asked to bring documents to the deposition for inspection may object to the production of such documents at the deposition itself. (Carter v. Sup. Ct. (1990) 218 Cal.App.3d 994, 997 [noting that procedure relating to ordinary inspection demands “is quite different from a deposition at which a party is required to bring documents”].) Once the party appears for the deposition and either objects to the document requests or simply fails to produce them, the requesting party then may file a motion to compel production. (See Carter, supra, 218 Cal.App.3d at p. 997.)

Accordingly, Defendants’ motions to compel the production of documents described in Plaintiffs’ deposition notices are DENIED without prejudice.

IV. Motions for an Order Appointing a Discovery Referee

Defendants ask the Court to appoint a discovery referee to oversee Plaintiffs’ depositions under Code of Civil Procedure section 639.

A. Legal Standard

A discovery referee may be appointed by two methods under the Code of Civil Procedure. Under Code of Civil Procedure section 638, a “referee may be appointed upon the agreement of the parties filed with the clerk, or judge or entered into the minutes….” When such an agreement has not been reached, a motion to appoint a discovery referee may be made pursuant to Code of Civil Procedure 639, subdivision (a), which provides: “[w]hen the parties do not consent, the court may, upon the written motion of any party … appoint a referee … [w]hen the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” Motions pursuant to section 639 are not granted lightly. Implicit in the statutory requirement that the reference be “necessary” is the notion “that there ought to be a finding of something out of the ordinary before the services of a referee are forced upon a nonconsenting party.” (Hood v. Sup. Ct. (1999) 72 Cal.App.4th 446, 449.) As such, courts may not appoint a discovery referee to hear “run-of-the-mill” discovery disputes. (Id. at p. 449, fn. 4.)

B. Analysis

Defendants argue that a discovery referee is necessary because they are concerned that Plaintiffs will make long-winded and unmeritorious objections or fail to answer the questions posed. In this respect, they contend that Santhanam and Robert’s purportedly accusatory tone and tendency to assert unsupported legal positions make it likely that they will obstruct Defendants’ ability to complete discovery absent the appointment of a discovery referee. Defendants’ argument is not persuasive. As an initial matter, a review of the evidence Defendants submit in support of the motions does not clearly support these contentions. While the e-mail correspondence does indicate that the parties often disagree, it does not establish that Santhanam and Robert adopted a particularly accusatory tone or consistently assert unsupported legal positions. As such, Defendants fail to establish clearly that a discovery referee should be imposed. In any event, a discovery referee is not necessary to prevent a deponent from making long-winded, unmeritorious objections or refusing to answer the questions posed. Resolving such a dispute may be accomplished via a run-of-the-mill discovery motion easily resolved by a court. (See Hood, supra, 72 Cal.App.4th at p. 449, fn. 4.) Accordingly, Defendants’ motions for an order appointing a discovery referee are DENIED.

V. Monetary Sanctions

Both Defendants and Plaintiffs request monetary sanctions in connection with these motions.

A. Defendants’ Requests

Defendants seek monetary sanctions in the amount of $3,865 against Santhanam and Pothen and $3,865 against Robert and Marci under Code of Civil Procedure section 2025.450, subdivision (g)(1). That section provides that, if a motion to compel a deponent’s attendance and testimony is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, 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. (Code Civ. Proc., § 2025.450, subd. (g)(1).) Here, the motions to compel Plaintiffs’ attendance and testimony are granted, Plaintiffs did not act with substantial justification, and no other circumstances make the imposition of sanctions unjust. Therefore, Defendants are entitled to an award of monetary sanctions against Plaintiffs.

In support of Defendants’ request for monetary sanctions, their counsel, McWilliams, states that she spent 15 hours drafting each motion at $165 per hour and anticipates spending an additional 5 hours reviewing the opposing papers and appearing for the hearing. She further states that Defendants incurred or anticipates incurring the following costs for each motion: (1) a $60 filing fee; (2) a $30 court reporter fee; (3) a $70 court call fee; and (4) an estimated $400 attorney service fee.

The Court does not award sanctions for estimated expenses or expenses not yet incurred. (See Code Civ. Proc., § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551, 1564 [court may not award monetary sanctions for costs not yet incurred].) As such, the anticipated attorney’s fees, the court call fee, and estimated attorney service fees are not compensable at this time. In addition, while counsel’s hourly rate is reasonable, the amount of time spent preparing each motion is not. Given the relatively uncomplicated nature of these motions, the Court finds 5 hours is a reasonable amount of time to draft each motion. Therefore, Defendants’ requests for monetary sanctions are GRANTED IN PART in the amount of $915 per motion. Accordingly, within 20 days of the filing of the Court’s order, Santhanam and/or Pothen shall pay $915 to Defendants’ counsel and Marci and/or Robert shall pay $915 to Defendants’ counsel.

B. Plaintiffs’ Requests

In connection with their oppositions to the motions, Plaintiffs request monetary sanctions against Defendants because they forced them to file needless oppositions. Plaintiffs’ requests are DENIED because they do not provide the required “declaration[s] setting forth facts supporting the amount of any monetary sanction sought.” (Code Civ. Proc., § 2023.040.)