Case Number: BC631612 Hearing Date: March 08, 2018 Dept: 46

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Case Number: BC631612
PEYMAN BROUKHIM ET AL VS CRAIG C KARR

Filing Date: 08/23/2016
Case Type: Other Real Property Rights Case

03/08/2018
MOTION – COMPEL FURTHER RESPONSES
MOTION FOR LEAVE

TENTATIVE RULING

D/X-C Karr’s successor-in-interest, Donna T. Saeman (hereinafter “Saeman”) motion, per CCP §§473(a)(1) and 576, for an order granting her leave to file a First Amended Cross-Complaint (hereinafter “FACC”), substituting herself for Karr, who is now deceased, and adding two new parties is GRANTED. Saeman to file a free-standing copy of the FACC within 5 days for scanning purposes. The FACC is deemed filed and served as to existing Cross-Defendants. Saeman is ordered to serve new cross-defendants and file proof of service within 30 days as required by CRC 3.110(b).

Relative to the Motion to Compel Further Deposition, the motion is incomplete; even if a meet and confer declaration were provided, it cannot be determined whether this motion is appropriate under CCP Section 2025.450 or Section 2025.480. However, both sections require meet and confer declarations, and the Shabel Dec. shows no meet and confer attempt after the second deposition session. Therefore, the motion is DENIED. Because there was no meet and confer, sanctions are appropriate in favor of Cross-Defendant (“X-D”) Jo in the amount of $700. Sanctions to be paid by Defendant and Cross-Defendant Saeman within 30 days.

Motion for Leave

The form and content of a notice of motion for leave to amend are governed by the rules governing motions generally (CCP § 1010).” Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 6:669. As well, the motion must comply with the requirements set forth in Rules of Court Rule 3.1324, which states as follows:

“(a) Contents of motion

A motion to amend a pleading before trial must:

Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1) The effect of the amendment;

(2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

The reasons why the request for amendment was not made

earlier…” (emphasis added).

“[J]udicial policy favors resolution of all disputed matters between the parties in the same lawsuit.” Weil & Brown, supra, ¶ 6:638, p. 6-163. Indeed, “[t]he policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified: ‘If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.’ [Morgan v. Sup. Ct. (1959) 172 C.A.2d 527, 530 (emphasis added); see Mabie v. Hyatt (1998) 61 C.A.4th 581, 596.” Id. at ¶ 6:639, pp. 6-163 & 6-164.

“Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. [Magpali v. Farmers Group, Inc. (1996) 48 CA4th 471, 486-488, 55 CR2d 225, 236-237; see P & D Consultants, Inc. v. City of Carlsbad (2010) 190 CA4th 1332, 1345, 119 CR3d 253, 263; Fisher v. Larsen (1982) 138 CA3d 627, 649, 188 CR 216, 232—leave to amend properly denied where P knew for over five months claims had not been properly pleaded and took no action to amend until after summary judgment granted against it].” Id. at ¶ 6:656.

“If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case, even if sought as late as the time of trial. [Higgins v. Del Faro (1981) 123 CA3d 558, 564-565, 176 CR 704, 707-708].” Id. at ¶ 6:653; c.f. P & D Consultants, Inc. v. City of Carlsbad (2010) 190 C.A.4th 1332, 1345 (leave properly denied where it was sought after the final status conference on a theory of which the moving party was apprised ten months previously, with no explanation for the delay); Fisher v. Larsen (1982) 138 C.A.3d 627, 649 (amendment to add previously-known theory attempted only upon loss of summary judgment motion).

CCP § 377.31 provides that, “on motion,” the court “shall allow” a pending action to be continued by the decedent’s successor in interest. CCP § 377.33 empowers this court to “make any order concerning parties that is appropriate” in this situation. Saeman has filed the required statement under CCP § 377.32. The court has already ordered Saeman substituted for Karr. (Order signed 10/18/17).

X-Ds Jo and Unity complain that Saeman has already been substituted into the action. But they give no sound reason that the fact of substitution should bar an amendment to the Cross-Complaint formally switching the names and removing the claims which are abated due to Karr’s death. X-Ds suggest that this filing will disrupt their motion for summary judgment. Yet no reason appears for thinking this should be so. A simple switch of names does not affect X-Ds’ arguments, and the addition of other parties on the same side of the case has nothing to do with X-Ds’ liability to X-C. No proper showing of prejudice has been made.

For the foregoing reasons, Saeman’s motion for leave is GRANTED.

Motion to Compel Continued Deposition

Saeman next moves per CCP §2025.480, for an order compelling X-D Jo to continue with her deposition, to produce documents included in the notice for deposition, and for sanctions in the amount of $2,310.00 (calculated as 4 hours preparing motion + 1 hour attending hearing @ $450/hour + $60 filing fee). X-D Jo also requests sanctions in the amount of $1500 (calculated as 2.5 hours preparing opposition + 1 hour attending hearing @ $400/hour) [Note: at the stated hourly rate, counsel’s fees for 3.5 hours would actually be $1400].

D Jo was first deposed on 12/12/17; she made an incomplete production of documents, and was deposed for 2 hours, 11 minutes. (Declaration of Scott Lee Shabel [hereinafter “Shabel Dec.”] ¶¶ 5-6, Exhibit 2). The deposition was continued to 1/5/18, by which time further document productions were to have been made. (Id. ¶ 7). On that date, the document production still appeared deficient to Saeman’s counsel, but the deposition still went forward for 2 hours, 23 minutes. (Id. ¶¶ 8-10, Exhibit 3). The deposition was adjourned again at lunchtime, subsequent to a testy exchange in which counsel dared each other to terminate the deposition on the record. (Id. Exhibit 3). There has been no further deposition.

CCP § 2025.450 reads in relevant part:

(a) 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, electronically stored information, 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, electronically stored information, or tangible thing described in the deposition notice.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) 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 the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

…

(g)(1) If a motion under subdivision (a) 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.”

CCP § 2025.480 reads in relevant part as follows:

“(a) If a deponent fails to answer any question…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.

…

(h) Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion.

(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.”

This situation is something of an anomaly. The typical motion to compel a deposition arises when a party has used all of its deposition time and wants more, when the deponent does not appear at all, or when the deponent refuses to answer certain questions. Here, none of those situations applies, so it is difficult to determine whether this motion is properly under Section 2025.450 or Section 2025.480. However, both sections require meet and confer declarations, and the Shabel Dec. shows no meet and confer attempt after the second deposition session. Therefore, the motion must be DENIED.

That said, the court should offers the following: CCP § 2025.290 entitles Saeman to 7 hours of deposition time with X-D Jo. Saeman has used 4 hours, 34 minutes of that time, leaving her with a statutory right to 2 hours, 26 more minutes. No motion for extension of time under Section 2025.290(a) will be entertained until the statutory time has been exhausted.

Saeman’s RFPs seek documents from 1/1/16 “through and including the present.” (See generally Saeman’s Separate Statement). The words, through “the present” is imprecise given the fact that the delays make this a moving target. Saeman must give a specific end date for the range of documents sought, and the most reasonable one would appear to be the date this action was filed, 8/23/16.

Third, X-D Jo represents that the documents responsive to Saeman’s RFP have already been produced three times. If X-D Jo wanted to stand on that point, she should have made the appropriate objection to the deposition notice. Saeman has no way to be sure that her request is duplicative until she makes it. On the other hand, if X-D Jo has no more documents to produce, then she has no more documents to produce. Saeman may be entitled to a verified statement specifying whether the documents never existed, or were destroyed, or were moved (CCP § 2031.230), but that may be the best she can do.

Because there was no meet and confer, modest sanctions are appropriate. Sanctions are awarded to X-D Jo in the amount of $700 (calculated as 2.5 hours preparing opposition + 1 hour attending hearing @ $200/hour).

IT IS SO ORDERED:

Frederick C. Shaller, Judge