2011-00114197-CU-OR

Anna Samuylik vs. Bank of America NA

Nature of Proceeding:  Motion to Compel Deposition Attendance and Answers Regarding

Filed By: Hanecak, Daniel J.

Defendants/Cross-complainants Bills and Cesar’s motion to compel plaintiffs/cross-
defendants Samuyliks’ attendance at deposition is DENIED, as follows.

Although the notice of motion provided notice of the Court’s tentative ruling system as
required by Local Rule 1.06(D), the notice does not comply with that rule.  Moving
counsel is directed to review the Local Rules, effective 1/1/2014.

Opposing counsel is admonished failing to comply with CRC Rule 3.1110(b)(3)-(4) and
Rule 3.1113(f).

At the outset, the Court must remind both counsel but particularly moving counsel that
given the number of motions such as this which must be addressed on a daily basis,
there are simply not enough judicial resources available to resolve each and every
discovery dispute that could have and should have been resolved informally.  This
serves to highlight the critical need for counsel’s legitimate, reasonable and good faith
meet-and-confer efforts before filing any discovery motion.  Although it dealt with a
motion to compel answers to deposition questions, the decision of Townsend v.
Superior Court (1998) 61 Cal.App.4th 1431 is instructive in that it clarifies that the meet
-and-confer process is not intended to be some perfunctory formality but rather it
“requires…a serious effort at negotiation and informal resolution.” (Id., at 1438.)
Nevertheless, the Court will address what appears to be a simple issue.

The three individual plaintiffs/cross-defendants appeared for deposition on May 14 and
15, 2014 pursuant to deposition notices served by defendants/cross-defendants Bank
of America and ReconTrust Company’s (collectively “Bank”).  A few weeks prior to
these depositions, moving counsel served on behalf of defendants/cross-complainants
notices for the depositions of the same three witnesses on May 21 and 21, 2014.

Moving counsel was present at each of the three depositions which commenced on
May 14 and 15, 2014 pursuant to Banks’ notices but when Bank’s counsel finished
examining the each of the three witnesses, moving counsel declined to ask any
questions because he was “unprepared” (Mov. Memo. P&A, p.5:17-23) and believed
the witnesses would be produced again on May 21 and 21, 2014 pursuant to his
deposition notices served on April 25, 2014.  In any event, because moving counsel
did not pursue any examination of the witnesses, their depositions concluded.

Shortly thereafter, moving counsel reiterated his demand for the same three
deponents to be produced again for examination on May 21 and 21, 2014 pursuant to
his April deposition notices.  On May 16, the witnesses’ counsel served written
objections to the notices for further depositions on May 21 and 21, 2014 on the ground
that the witnesses had already appeared for their one deposition. (Code Civ. Proc.
§2025.610(a).)

The Court finds that the objections asserted on behalf of the three deponents were
timely served and valid.  The mere fact that the scope of allegations/issues raised by
moving counsel’s cross-complaint is different from the allegations asserted against the
Bank does not justify the demand here for the witnesses to be produced a second
time.  If moving counsel’s characterization of distinct allegations/issues were alone
sufficient to justify subsequent depositions of witnesses, this exception would swallow
the “one deposition” rule set forth in Code Civil Procedure §2025.610(a) in almost any
lawsuit with multiple parties or a cross-complaint.  It is also worth noting that moving
counsel has cited absolutely no legal authority for his novel theory claimed to
supersede the express statutory provision precluding subsequent depositions of
witnesses.  Similarly, moving counsel’s claim that he needed more than two days (i.e.,
May 14 and 15, 2014) to complete his examination the three witnesses is of no legal
consequence under the circumstances here.

Accordingly, the motion to compel the depositions of the Samuyliks is denied.

Opposing counsel may file and serve his request for sanctions as a separate noticed
motion.

This minute order is effective immediately.  No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)