Fry’s Electronics, Inc. v. Maurice Davis		CASE NO. 114CV263303
DATE: 29 August 2014	TIME: 9:00	LINE NUMBER: 19

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 28 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 6 June 2014, the motion of Plaintiff to Compel Deposition of Defendant, for the Production of Documents, and for Sanctions were argued and submitted.

Defendant did not file formal opposition to the motion.[1]

Statement of Facts

Plaintiff filed the complaint on 4 April 2014, asking for a permanent injunction against Defendant.  Plaintiff alleged that beginning around 2004 Defendant began soliciting monetary donations from Plaintiff’s customers on Plaintiff’s premises.  His behavior escalated (such as death threats to employees and urinating on the parking lot), and Defendant was arrested and removed from the premises in 2005.

In 2010, Defendant resurfaced, returned to the premises, and assaulted one of Plaintiff’s employees.  A 3 year restraining order was granted by Judge Huber on 8 June 2010.

Discovery Dispute

On 17 May 2014 Plaintiff served Defendant Fry’s Notice of Deposition of Maurice Davis And Request For Production of Documents, set for 29 May 2014, at Fry’s corporate headquarters in San Jose.

On 22 May 2014 Defendant telephoned Plaintiff and stated he would not appear at the deposition location because he feared for his safety.

On 24 May 2014, Defendant faxed a letter to Plaintiff stating he would be deposed at Fry’s corporate headquarters, but he would be perfectly willing to be deposed in another location.  Plaintiff contends that Plaintiff never agreed to fax service, and this fax is not a valid objection.

Nonetheless, on 27 May 2014, Plaintiff attempted to call Defendant twice.  On 28 May 2014, Plaintiff faxed a letter stating that Plaintiff was willing to rent a conference room for the 29 May 2014 deposition, and gave the location.  The letter stated that if Plaintiff received no response, Plaintiff would hold the deposition at the original location.

On 29 May 2014, Plaintiff waited half an hour, then commenced Defendant’s deposition at the original location, and made a record of nonappearance.  The court reporter telephoned the alternate deposition location to confirm that Defendant had not shown up at that location either.

Analysis

1. Plaintiff’s Motion to Compel Deposition of Defendant and Production of Documents

Plaintiff motions to compel the deposition of Defendant, and for production of documents. In support of the motion to compel, Plaintiff cites in the notice of the motion Code of Civil Procedure sections 2023.010, 2023.030, 2025.280, and 2025.450.

In Section III.  A.  3. ff the Memorandum of Points and Authorities, Plaintiff does not cite any authority for a party to move for order compelling Defendant’s attendance and production of documents.  However, Code of Civil Procedure section 2025.450 provides that, “[i]f, after service of a deposition notice, a party to the action . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . 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.” (Code Civ. Proc. § 2025.450(a).) The section further provides that “[t]he motion shall set forth specific facts showing good cause justifying the production for inspection of any document.” (Code Civ. Proc. §2025.450(b)(1).) There must also be a meet and confer attempt. (Code Civ. Proc. §2025.450(b)(2).)

Here, the Notice of Deposition of Maurice Davis And Request For Production of Documents was properly served, and Defendant did not properly object.  Plaintiff’s notice set forth specific facts showing good cause for the production of documents.  Plaintiff has also shown several attempts to contact and work with Defendant.  However, Defendant has not appeared for deposition, nor responded to the most recent attempts at contact.

Therefore, Plaintiff’s Motion to Compel Deposition of Defendant and for the Production of Documents is GRANTED.  Defendant shall appear at a code compliant location for a deposition and shall provide code-complaint responses to the request for production of documents within 20 calendar days of the date of the filing of this Order.

1. Plaintiff’s Request for Monetary Sanctions

Plaintiff makes a request for monetary sanctions.  The request is not code-compliant.

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  (See Rule of Court 2.30).  The party’s motion must also state the applicable rule that has been violated. (Id.).

Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.”  As such, section 2023.030 does not provide an independent basis for an award of sanctions and thus is not self-executing.  In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

However, Plaintiff does cite Code Civ. Pro. § 2025.450.  Subsection (g)(1) authorizes the imposition of monetary sanctions if a motion to compel attendance or production is granted.

In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case.  (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49).  Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551).

Here, Plaintiff has succeeded on a motion under section 2025.450(a).  Therefore, Plaintiff is entitled to monetary sanctions under 2025.450(g)(1).

However, the claimed amount of time and hourly rate is excessive for this fairly simple motion.  The court will allow for three hours of time at $350 an hour for the preparation of the motion and the $90 filing fee.  Plaintiff will not be allowed to claim the 2 hours of prospective costs in Plaintiff’s calculation at this time.  However, the Court will revisit the award of sanctions should the matter appear to be contested.

Therefore, Plaintiff’s request for monetary sanctions is GRANTED but the sum shall be reduced to $1,140.00 and GRANTED. [2]  Defendant shall pay the sum of $1140 to counsel for Plaintiff within 20 days of the date of the filing of this Order.

Order

Defendant shall appear at a code compliant location for a deposition and shall provide code-complaint responses to the request for production of documents within 20 calendar days of the date of the filing of this Order.

Plaintiff’s request for monetary sanctions is GRANTED.  Defendant shall pay the sum of $1140 to counsel for Plaintiff within 20 days of the date of the filing of this Order.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] See “Civil Discovery Sanctions in California Courts–“The 3:10 to Discoveryville”  http://www.abtl.org/report/nc/abtlnorcalvol23no1.pdf