In Re the Matter of The Cope Trust		CASE NO. 113PR173336
DATE: 29 August 2014	TIME: 9:00	LINE NUMBER: 13

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 29 August 2014, the Motion of Petitioner Ted Thomason to Compel Deposition of Respondent William Cope and Request for Sanctions was argued and submitted.

Respondent William Cope filed formal opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[1]

I.       Statement of Facts

Petitioner is accusing Respondent of undue influence in regards to the Cope Trust, created on 17 September 2002.

The Petitioner is represented by Temmerman, Cilley & Kohlmann, LLP.  This firm has two offices.  The first is located at 140 Town & Country Drive, Danville, CA.  The second is located at 2502 Stevens Creek Blvd, San Jose, CA.  The lawyers on the case, James Cilley Esq. and Erin Kolko esq., state that they work out of the Danville office and that the multi-volume folder for the matter is located there.

The respondent lives at 402 S. Henry Ave, San Jose, CA. (Kolko Decl. ¶ 4).  The Petitioner has done a Mapquest search which indicates that this location is 41.05 miles from Petitioner’s Danville Office. (Kolko Decl. ¶ 5).

II.      Discovery Dispute

On 23 May 2014, Petitioner’s counsel noticed Respondent’s counsel to a deposition of Respondent that would take place at the Danville office on 13 June 2014.

Respondent replied to this notice with two letters, one dated 27 May 2014 and the other dated 30 May 2014.  The first letter requests that the deposition take place at Petitioner’s San Jose office so Mr. Cope can avoid missing work. (Pet. Exhibit D).  The first letter also notes that a previous deposition was held at the San Jose office.  (Id.).  The second letter asserts that the deposition is being held in Danville for purposes of harassment and state that Mr. Cope will instead appear at Petitioner’s San Jose offices at the noticed date and time. (Pet. Exhibit E).

On 30 May 2014, Respondent’s counsel served an Objection to Notice of Taking Deposition on Petitioner at the Danville office.  (Pet. Exhibit F).  This objection cites no legal authority[2] but states that the Respondent will appear at the San Jose office at the noticed date and time. (Id.)

On 10 June 2014, Petitioner’s counsel sent a letter to Respondent’s counsel indicating that Respondent’s deposition would go forward as noticed unless Respondent’s counsel provided legal support for their Objections. (Pet. Exhibit G).  The letter also states that Petitioner’s counsel works out of the Danville office. (Id.).  Respondent’s counsel replied with a handwritten note stating that they would be at the San Jose office at the noticed date and time. (Id.).

On 11 June 2014, Petitioner’s counsel faxed a letter to Respondent’s counsel with the stated purpose of meeting and conferring.  (Pet. Exhibit H).  The letter itself states that the deposition will go forward as scheduled and Petitioner’s position that Respondent unduly influenced his father in the signing of the Cope Trust.  (Id.).  The letter reiterates that the deposition will take place as scheduled unless Respondent provided legal authority as to why it should not. (Id.).  Respondent faxed back a handwritten note stating: “We will be at Stevens Creek 10A-6/13.” (Id.).  The Petitioner’s counsel responded to this note with a letter saying that they would move forward with a motion to compel and for sanctions.(Id.).  The Respondent replied by faxing another handwritten note which stated “We will be at Stevens Creek.” (Pet. Exhibit I).  There was one more letter back and forth between Petitioner and Respondent with similar content on both sides. (Pet. Exhibit J).

At the appointed date and time for the deposition, the Respondent showed up at the San Jose office at 10 AM and sat in the lobby. (Kolko Decl ¶ 16).  When asked why they were there Respondent’s counsel indicated that they were there for a cancelled deposition.  (Id.).  They left at 10AM. (Id.).

The current Compel Deposition of Respondent William Cope and Request for Sanctions was then brought by Petitioner.

III.     Analysis     

         A.  Professionalism.

Should this matter proceed to a hearing, the Court might make the following observations:

The Court takes judicial notice of the fact that since the admission of the candidates who passed the February 2014 State Bar Examination, there has been an additional line added to the Oath of Admission to the State Bar as follows:

“As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”

Business & Professions Code, § 6068(f) states: “It is the duty of an attorney to do all of the following: . . . To advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.”  “As an officer of the court the lawyer should support the authority of the court and the dignity of the trial courtroom by strict adherence to the rules of decorum and by manifesting an attitude of professional respect toward the judge, opposing counsel, witnesses and jurors.”  Hawk v. Superior Court (1974) 42 Cal. App. 3d 108, 123.

“Whenever a judge has personal knowledge that a lawyer has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action.”  Canon of Judicial Ethics,3D(2).

In proper cases, monetary sanctions may be imposed against both counsel at the same time where there is a personal dislike for each other.  Volkswagenwerk Aktiengesellschaft v. Superior Court (Golsch) (1981) 122 Cal. App. 3d 326, 331-334.

The Court might further inquire whether the teeing up of this motion, with the increased to the costs to the clients in her work for the court clerks, was more efficient then one side or the other conceding in agreeing to the opposing parties insistence on the choice of location for this deposition.

         B.  Meet and Confer

A code-compliant attempt to meet and confer is an explicit prerequisite to compelling attendance at/compliance with a deposition. (Code Civ. Proc. § 2025.450(b).)  Under California Code of Civil Procedure (CCP) § 2016.040, “a meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  However, where a deponent fails to attend a deposition, a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance is also sufficient. (Code Civ Proc. § 2025.450(b)(2)).   “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue.” (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124).[3]

There is no evidence in the provided declaration or any of the available exhibits that Petitioner has attempted to meet and confer regarding the present motion to compel.  However, there are numerous emails back and forth between counsel on both sides regarding the position of Respondent as to this deposition.  The Respondent made clear in these the reason behind the non-appearance in these emails and remained intractable in their position on the issue of the location of the deposition despite numerous emails.  The tone and content of Respondent’s replies also make it clear that they are not interested in rescheduling the deposition to a later time, as was the case in Leko v. Cornerstone.  This evidence, included in Petitioner’s declaration and exhibits, is sufficient to satisfy the inquiry requirement of § 2025.450(b)(2).

         C.  Motion to Compel Deposition

Petitioner is entitled to depose any natural person, organization such as a public or private corporation, partnership, association, or governmental agency under CCP § 2025.010.  Upon receipt of service, Respondent was required to appear and testify under § 2025.280(a).  Mr. Cope’s failure to appear makes Defendant’s motion to compel Plaintiff’s appearance appropriate under § 2025.450(a).

CCP § 2025.250(a) states: “Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the deponent’s residence.”  The purpose of §2025 is revealed, through examination of legislative history, to be to set outside limits on the distance a defendant has to travel.  This is considered fair due to the greater control the Plaintiff has over the forum of the action.[4]  It stands to reason that anything within the distance provided in § 2025.250(a) would be a reasonable distance to travel.

The Respondent objects that this deposition is a misuse of discovery under Code of Civil Procedure § 2023.010(c).  This section states that it is a misuse to discovery to employ “a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc § 2023.010(c)).

The Petitioner’s attached declaration states that the Danville office is 41.05 miles away from the residence of the Respondent.  This court’s independent investigation of the matter shows that the distance is, in fact, slightly less than this.  This distance is acceptable as per § 2025.250(a) and does not rise to the level of conduct described in § 2023.010(c).  The deposition was noticed in a code-compliant location and that was all that was required.  Therefore, absent a cognizable and credible objection, appearance was required.[5]

It is also unlikely that requiring the Respondent to drive approximately 40 minutes, one time, rises to the level of ethical misconduct, as the Respondent’s counsel implies in its opposition to this motion.

The Respondent’s failure to appear at the appropriate location of a noticed deposition makes Petitioner’s motion appropriate.

Accordingly, Petitioner’s Motion to Compel Deposition of Respondent William Cope is GRANTED.

         D.  Monetary Sanctions

CCP § 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).

Petitioner is seeking monetary sanctions in the amount of $1,560 against Respondent for his failure to show up for a noticed deposition. In support of this request, Petitioner cites Code Civ. Proc. § 2025.450(g)(1).  CCP § 2025.450(g)(1) provides that a court shall grant monetary sanctions to a party that brings a motion to compel deposition.  The only exception to this is where the noticed party acted with substantial justification.

Here, Petitioner has made a code-compliant request for sanctions and has succeeded on their motion to compel deposition.  What’s more, the actions of Respondent were not sufficiently justified in this case.

Accordingly, Petitioner’s request for monetary sanctions is GRANTED.

IV.     Conclusion and Order

Petitioner Ted Thomason’s Motion to Compel Deposition of Respondent William Cope is GRANTED.

Petitioner Ted Thomason’s request for monetary sanctions in the amount of $1,560 is GRANTED.

 

 

________________­­­____________ DATED:

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

 

 

[1] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[2] The Court is not required to find the legal authorities substantiating and unsupported legal argument. (See Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934 [indicating that court may deny motion that does not set forth the legal basis for the relief requested].

[3] In Leko v. Cornerstone, the counsel for the cross-defendants (Pyfrom) noticed a number of depositions.  There was a misunderstanding as to when the depositions were and it was not properly calendared by opposing counsel.  When Pyfrom called the day before, opposing counsel informed him that neither he nor his clients would be available.  After some particularly vitriolic letters on the part of Pyform, Pyform brought a motion to compel deposition.  The court held that where the failure to appear was due to oversight and opposing counsel expressed a willingness to reschedule the depositions at a mutually convenient date. The trial court did not abuse its discretion when it determined that Pyfrom did not comply with his obligations under § 2025(j)(3)(b).

[4] This is indicated by Resolution 11-11-05 of the California Resolutions Committee.  In this resolution the Conference of Delegates of California Bar Associations discusses the pros and cons of amending 2025.250(a) to its current format.  They discuss the reasoning behind their ultimate decision to recommend amending this statute.

[5] “The Court is unpersuaded by this argument because it is not this Court’s concern how Plaintiff gets here, whether it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas jackrabbit, as long as Plaintiff is here at the proper date and time.”  Smith v. Colonial Penn Ins. Co., 943 F. Supp. 782, 784 (S.D. Tex. 1996).