Case Number: BC485782 Hearing Date: May 08, 2014 Dept: 34

Moving Party: Defendants L&B Real Estate and William Little (“defendants”)

Resp. Party: Plaintiffs Samuel Rayon, et al. (“plaintiffs”)

Defendants Motions to Compel Plaintiffs Samuel Rayon and Eulogio Pat to Answer Deposition Questions is DENIED as untimely.

PRELIMINARY COMMENTS:

The Court has previously indicated to counsel that it is available for informal resolution of discovery issues. (See, e.g., the Court’s Trial Orders, ¶3, available in Dept. 34 and online at https://www.lasuperiorcourt.org/courtroomInformation/UI/resultpopup.aspx?value=LAM/34. Had the parties made use of the Court’s informal resolution procedures, these two motions could have been avoided.

Further, the Court would appreciate all parties complying with Cal. Rules of Court, rule 3.1110(f), which requires that exhibits be separated with hard tabs. Defendant’s failure to do so simply creates more work for the Court.

BACKGROUND:

Plaintiffs commenced this action on June 1, 2012. After the Court, the Honorable David L. Minning presiding, sustained defendants’ demurrer to the first and fourth causes of action in the complaint, plaintiffs filed a first amended complaint on September 21, 2012, alleging causes of action for: (1) failure to pay overtime; (2) failure to provide rest and meal periods; (3) failure to accurately record hours worked; (4) waiting time penalties; (5) liquidated damages; (6) failure to pay minimum wage; and (7) violation of Business & Professions Codes § 17200. After the Court, the Honorable Ralph W. Dau presiding, sustained defendants’ demurrer to the first amended complaint, plaintiffs filed a second amended complaint (“SAC”) on May 8, 2013, alleging the same seven causes of action.

On 11/14/13, a hearing was held on defendants’ demurrer to the SAC. The Court sustained the demurrer to the first, second, fourth, fifth, sixth, and seventh causes of action, as they pertain to plaintiffs Rayon, Pat, Vasquez, Martinez, and Perez, without leave to amend. The Court overruled the demurrer to the third cause of action. The Court overruled the demurrer to the SAC as it pertains to plaintiff Mendez.

On 2/5/14, the Court denied plaintiffs’ motion for reconsideration of the 11/14/13 order. The Court, on its own motion, reconsidered and vacated the 11/14/13 order.

On 2/24/14, plaintiffs filed a third amended complaint.

ANALYSIS:

“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.” (Code Civ. Proc., § 2025.480(a).) The motion must be made within 60 days of the completion of the deposition record and must contain a meet and confer declaration. (Code Civ. Proc., § 2025.480(b).)

Defendants’ motions relate to depositions that were taken in September and November 2012. Defendants provide no case law as to when the completion of the deposition record occurs; it appears that there is no case law on this point. The relevant portion of the Rutter Guide states: “It is unclear whether the deposition record is ‘completed’ when the reporter sends notice that the transcript is available for review (see ¶ 8:769) or only after the expiration of time to sign or correct the transcript (see ¶ 8:770.3 ). The safer course is to use the date of the reporter’s notice.” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 8:801.)

The depositions occurred approximately 1½ years ago, in September and November 2012. Defense counsel states that she intentionally “delayed ordering the completion of the deposition record.” (Calvert Declarations, ¶¶5.) According to counsel, this was done “to minimize expenses which might be unnecessary depending on the Court’s ultimate rulings,” concerning various demurrer is an motions to strike. (Id.)

Ultimately, defense counsel declares that the reporter gave notice that the record was complete in January 2014 (Rayon deposition) and February 2014 (Pat deposition). (See Calvert Decls., ¶¶ 6, Exh. B.) Defendants fail to establish that this was the first notice that the transcripts were available for review. The correspondence in exhibits B merely states that an original of the deposition is enclosed. (See id., Exhs. B.) Nothing in these letters establishes that the transcripts were not available for reading, correcting, or signing at any point prior to January or February 2014.

Although defense counsel states that defendants “delayed ordering the completion of the deposition record to minimize expenses,” it is unclear how delaying the completion would have reduced expenses since the depositions had already been taken. Moreover, defense counsel implies that she delayed ordering the completion of the deposition record because she expected their demurrers to end the case. But the chronology of the case calls that claim into question. On Nov. 14, 2013, the Court ruled on Defendant’s demurrer, sustaining much of the demurrer. One week later, on Nov. 22, 2013, Plaintiffs moved for reconsideration. The hearing on plaintiffs motion was set for Feb. 5, 2014. Yet, according to defense counsel, she ordered that the deposition record be completed while the Court’s Nov. 14, 2013 order was still in effect, and prior to the Court ruling on plaintiff’s motion for reconsideration.

More than 18 months ago, defendant took plaintiffs’ depositions. At the time of the depositions, defense counsel knew that the plaintiffs had refused to answer various questions. Defendant could have moved for an order compelling further answers. Instead, defendant intentionally chose to wait over 18 months before bringing this motion. The motion is untimely.

In their opposition, plaintiffs request sanctions against defendants in the amount of $5,425.00 (consisting of 7.5 hours of legal research and drafting of oppositions, 2.0 hours to travel to file the opposition, and 6.0 hours to appear at the hearing on the motions. (See Lee Declarations.) While the court finds Mr. Lee’s hourly rate of $350 to be reasonable, the court finds the time requested to be excessive.

“‘If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful . . . .’ (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, quoting Brown v. Stackler (7th Cir. 1980) 612 F.2d 1057, 1059.) “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137; Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

The Court therefore declines to award sanctions.