Juan Serrato v. O’Sullivan Vending, et al.		CASE NO. 113CV253306
DATE: 22 August 2014	TIME: 9:00	LINE NUMBER: 17

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 408.882.6856 and the opposing party no later than 4:00 PM Thursday 21 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 22 August 2014, the following motions of defendants O’Sullivan Vending and O’Sullivan Enterprises, Inc. were argued and submitted: (1) to compel plaintiff Juan Serrato’s attendance at deposition and for an award of monetary sanctions; and (2) to compel further responses to special interrogatories and for an award of monetary sanctions.  Plaintiff Juan Serrato filed formal oppositions to the motions, in which he requests awards of monetary sanctions.

Statement of Facts  

This is a wage and hour class action brought by plaintiff Juan Serrato (“Plaintiff”) against defendants O’Sullivan Vending and O’Sullivan Enterprises, Inc. (collectively “Defendants”).  Defendants specialize in the provision of snacks and drinks throughout northern California and employed Plaintiff as a truck driver.  Plaintiff alleges that Defendants failed to compensate him and other similarly situated workers for all hours worked, provide them with meal and rest periods, compensate them for overtime, comply with itemized wage statements provisions, and timely compensate them at the time of the termination of their employment.

On 19 September 2013, Plaintiff filed the operative class action complaint, asserting causes of action for: (1) wage theft/time shaving; (2) failure to pay overtime; (3) failure to provide meal periods; (4) failure to authorize and permit periods; (5) knowing and intentional failure to comply with itemized employee wage statement provisions; (6) conversion; (7) fraud; (8) unjust enrichment; (9) waiting time penalties; and (10) violation of unfair competition law.

Discovery Dispute

On 12 May 2014, Defendants’ counsel sent Plaintiff’s counsel an email regarding declarations that Defendants obtained from members of the class.  (See Wilson Dec. Motion to Compel Attendance at Deposition, Ex. B.)  Defendants’ counsel proposed that Plaintiff dismiss the lawsuit based upon the class members’ declarations or postpone additional discovery until Plaintiff deposed some of the members of the class.  (See id.)  Defendants’ counsel indicated that if Plaintiff would not agree to the same then Defendants would proceed with Plaintiff’s deposition.  (See id.)  Defendants’ counsel proposed several dates for Plaintiff’s deposition and requested that Plaintiff’s counsel advise what date would be best for Plaintiff.  (See id.)

Defendants’ counsel did not receive any response to his 12 May 2014 email and, consequently, sent follow-up emails to Plaintiff’s counsel on 16 May 2014 and 22 May 2014, requesting that Plaintiff’s counsel contact him to schedule Plaintiff’s deposition.  (See id.)

On 23 May 2014, Defendants noticed Plaintiff’s deposition for 10 June 2014, and served Plaintiff with discovery requests, including special interrogatories, set one (“SI”).  (See Wilson Dec. Motion to Compel Attendance at Deposition, Ex. A; see also Wilson Dec. Motion to Compel Further Responses, Ex. A.)

Defendants’ counsel sent Plaintiff’s counsel an email on 28 May 2014, indicating that he had not heard from Plaintiff’s counsel regarding Plaintiff’s deposition, noticed for 10 June 2014, and he assumed the deposition would proceed as scheduled.  (See Wilson Dec. Motion to Compel Attendance at Deposition, Ex. B.)  Plaintiff’s counsel responded via email later the same day and advised that Plaintiff was not available on 10 June 2014.  (See id.)   Plaintiff’s counsel stated that he would “get back to [Defendants’ counsel] with available dates,” but that Defendants’ depositions would have to go forward before Plaintiff’s deposition because they were noticed three months earlier.  (See id.)   Plaintiff’s counsel further stated, “[w]hen you give me the availability for the COR/PMQ and respond to the discovery that is nearly two months outstanding, we’ll talk dates for [Plaintiff].”  (See id.)

Shortly thereafter, Defendants’ counsel sent Plaintiff’s counsel a lengthy reply email addressing the deposition notices issued to Defendants and requesting that Plaintiff’s counsel provide him with the earliest date on which Plaintiff and Plaintiff’s counsel would be available for Plaintiff’s deposition.  (See id.)   Later that evening, Plaintiff’s counsel responded via email and indicated that he would discuss Plaintiff’s deposition with Defendants’ counsel during a telephone conference the following week.  (See id.)

The following day, 29 March 2014, Defendants’ counsel and Plaintiff’s counsel exchanged further emails.  (See id.)   Defendants’ counsel asked Plaintiff’s counsel to provide dates for Plaintiff’s deposition and Plaintiff’s counsel stated that he would not discuss the matter any further until the telephone conference that was scheduled for the following week.  (See id.)

Defendants’ counsel also sent Plaintiff’s counsel an email on 7 June 2014, regarding multiple discovery issues and indicating that Plaintiff still refused to provide Defendants with any dates for his deposition.  (See id.)

On 27June 2014, Plaintiff served Defendants with objection-only responses to the SI.  (See Wilson Dec. Motion to Compel Further Responses, Ex. B.)

Defendants’ counsel sent Plaintiff’s counsel an email on 1 July 2014, requesting that Plaintiff’s counsel advise as to the legal authority upon which Plaintiff based his objections and refused to respond to SI Nos. 1 and 2, which asked for the identity of the class members with whom Plaintiff had spoken and for information about the substance of the communications.  (See Wilson Dec. Motion to Compel Further Responses, Ex. C.)  Defendants’ counsel also requested that Plaintiff’s counsel provide him with dates for Plaintiff’s deposition.  (See id.)  On the same day, Plaintiff’s counsel replied via email, stating: “I’ll get back to you. I don’t have the time right now. If that means file your [sic] going to file your motion, go ahead. Otherwise, I will respond to you this week.”  (See id.)   Defendants’ counsel replied via email and indicated that it was fine if Plaintiff’s counsel responded to his email later that week.  (See id.)

On 11 July 2014, Defendants’ counsel and Plaintiff’s counsel exchanged multiple emails about various outstanding discovery matters, but the scheduling of Plaintiff’s deposition remained unresolved.  (See Wilson Dec. Motion to Compel Further Responses, Ex. C.)  On the same day, Defendants filed the instant motion to compel Plaintiff’s attendance at deposition.  On 17 July 2014, Defendants filed the instant motion to compel further responses to SI Nos. 1 and 2.  On 11 August 2014, Plaintiff filed papers in opposition to Defendants’ motions.  Defendants filed reply papers on 15 August 2014.

Discussion

I.             Motion to Compel Plaintiff’s Attendance at Deposition

Defendants move for an order compelling Plaintiff to attend his deposition.

               A.           Legal Standard

Code of Civil Procedure section 2025.450, subdivision (a) provides that if, after service of a deposition notice, a party to the action without having served a valid objection fails to appear for examination or to proceed with it, the party giving the notice may move for an order compelling the deponent’s attendance and testimony.  (See Code Civ. Proc., § 2025.450, subd. (a).)  The moving party is not required to demonstrate good cause for an order compelling a party to attend a deposition and provide testimony in accordance with a deposition notice.  (See Code Civ. Proc., § 2025.450, subd. (b)(1).)  Thus, the moving party need only show that he or she served the responding party with the deposition notice and that the party failed to appear.  (See Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124.)  The motion must be accompanied by a meet and confer declaration or a declaration that the moving party contacted the deponent to inquire about the nonappearance.  (See Code Civ. Proc., § 2025.450, subd. (b)(2); see also Leko v. Cornerstone Bldg. Inspection Service, supra, at p. 1124.)

               B.           Analysis

Defendants argue that the Court should order Plaintiff to attend his deposition because Plaintiff ignored Defendants’ initial requests that he provide dates on which he was available for his deposition, after Defendants noticed Plaintiff’s deposition for 10 June 2014, Plaintiff refused to attend, and Plaintiff ignored Defendants’ subsequent requests for dates on which Plaintiff would be available for his deposition.

In his opposition, Plaintiff argues that he “took the very reasonable position that Defendant’s unfinished PMK deposition should be completed before [his] deposition went forward.”  (Opp’n., p. 2:26, 3: 1-2.)  Plaintiff also contends that his counsel “has not been able to keep up with Defendant’s numerous and ever changing emails” because Defendants’ counsel sent multiple emails discussing various outstanding discovery matters instead of meeting and conferring via the telephone, which is more efficient and productive.  (See Opp’n., p. 3:13-27.)  Plaintiff further argues that the instant motion is moot because he “has offered a date prior to the hearing date of this motion and dates beyond August 22, 2014, for Defendant to proceed with [his deposition].”  (Opp’n., p. 1:23-25.)

Defendants have met all of the requirements to compel Plaintiff’s deposition under Code of Civil Procedure section 2025.450.  As indicated above, the moving party need only show that he or she served the responding party with the deposition notice, show that the party failed to appear, and submit a meet and confer declaration or a declaration that he or she contacted the deponent to inquire about the nonappearance.  (See Code Civ. Proc., § 2025.450, subd. (b)(2); see also Leko v. Cornerstone Bldg. Inspection Service, supra, at p. 1124.)

Here, Defendants served Plaintiff with notice of deposition on 23 May 2014.  Plaintiff was legally obligated to attend on the date specified in the notice, 10 June 2014.  Plaintiff did not serve any objections to the deposition notice.  While Plaintiff’s counsel indicated on 28 May 2014, that Plaintiff was unavailable for that date, Plaintiff did not file a motion for a protective order under section 2025.420.  (See Code Civ. Proc., § 2025.420, subd. (b).)  Defendants’ counsel exchanged multiple emails with Plaintiff’s counsel, attempting to find an alternative date for Plaintiff’s deposition, but Plaintiff refused to cooperate.  Plaintiff then failed to attend the deposition on 10 June 2014, even though he was obligated to appear.

In addition, the Court notes that Plaintiff refused to attend his deposition or provide Defendants with any alternative dates for his deposition on the ground that Defendants’ depositions needed to go forward first because they were noticed three months earlier.  There is no legal authority for Plaintiff’s contention that he can refuse to attend his deposition until he has completed his own noticed depositions of Defendants.  Parties may notice depositions at any time and use discovery methods in any sequence.   (See Code Civ. Proc., §§ 2025.210 and 2019.020, subd. (a).)  Moreover, there is no rule that prohibits scheduling a deposition prior to depositions already scheduled by opposing counsel.  While there may be a tactical advantage to taking the deposition of one individual prior to another, “the existence of such advantages alone will ordinarily not constitute good cause for changing the normal timing of discovery or justify a conclusion that such timing will result in ‘annoyance, embarrassment or oppression.’”  (Rosemont v. Super. Ct. (1964) 60 Cal. 2d 709, 714.)  Moreover, Plaintiff did not move for a protective order establishing the sequence of the depositions.  (See Young v. Rosenthal (1989) 212 Cal.App.3d 96, 106 [a protective order may be granted to prevent a party from unilaterally altering the sequence of depositions].)

Plaintiff’s argument that his counsel’s inability to “keep up with” the numerous emails from Defendants’ counsel somehow justifies his failure to attend his duly noticed deposition or provide alternative deposition dates is without merit.  Notwithstanding the number of emails sent or the number of discovery issues that were addressed in the emails, Plaintiff’s counsel’s own emails demonstrate that Plaintiff was well aware that Defendants noticed his deposition for 10 June 2014, and after he indicated that he could not attend, were requesting alternative dates on which he was available.  (See Wilson Dec. Motion to Compel Attendance at Deposition, Ex. B; see also Wilson Dec. Motion to Compel Further Responses, Ex. C.)

Additionally, while Plaintiff argues that the instant motion is moot because he has provided Defendants with dates for his deposition, it appears from his opposition papers that the parties have yet to agree upon a set date for his deposition.  In light of the same and Plaintiff’s earlier refusal to attend his duly noticed deposition, the Court finds that it is appropriate to order Plaintiff to attend his deposition.

Accordingly, Defendants’ motion to compel Plaintiff’s attendance at deposition is GRANTED.

II.            Motion to Compel Further Responses to SI Nos. 1 and 2

Defendants move for an order compelling Plaintiff to provide further responses to SI Nos. 1 and 2.

A.           Legal Standard

A party propounding interrogatories may move for an order compelling further responses if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. (See Code Civ. Proc., § 2030.300; Coy v. Super. Ct. (1962) 58 Cal.2d  210, 220-221.)  The burden is on the responding party to justify any objections or failure to fully answer. (See Coy v. Super. Ct., supra, at p. 220-221.)

B.           Objections

SI No. 1 asks Plaintiff to identify every putative class member with whom he or his agents have communicated in connection with his claims.  (See Wilson Dec. Motion to Compel Further Responses, Ex. A, p. 2.)  In his objection-only response to SI No. 1, Plaintiff objected to the request as overbroad, vague, ambiguous, and seeking information protected by the attorney-client privilege and work product doctrine.  (See Wilson Dec. Motion to Compel Further Responses, Ex. B, p. 2.)

SI No. 2 asks Plaintiff to state the date and substance of each communication that occurred between him or his agent and each putative class member identified in response to SI No. 1.  (See Wilson Dec. Motion to Compel Further Responses, Ex. A, p. 2.)  In his objection-only response to SI No. 2, Plaintiff objected to the request as violating the attorney-client privilege and work product doctrine.  (See Wilson Dec. Motion to Compel Further Responses, Ex. B, p. 2.)

In his opposition, Plaintiff attempts to justify only his objections based upon the work product doctrine.[1]  Since Plaintiff does not attempt to defend the remaining objections, the Court finds that the undefended objections are without merit and, therefore, overruled.  (See Coy v. Super. Ct., supra, at p. 220-221.)

Plaintiff argues that the information sought by SI No. 1—the identity of the putative class members with whom he or his agents have communicated—and SI No. 2—the dates and substance of each communication—are entitled to absolute work product protection or, in the alternative, qualified work product protection.  In support of his position, Plaintiff cites Coito v. Super. Ct. (2012) 54 Cal.4th 480 (“Coito”) and Nacht & Lewis Architects v. Super. Ct. (1996) 47 Cal.App.4th 214 (“Nacht”).

“California’s civil work product privilege is codified in section 2018.030.  Subdivision (a) provides absolute protection to any ‘writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.’  Such a writing ‘is not discoverable under any circumstances.’”  (Coito, supra, at p. 488.)  “Section 2018.030 subdivision (b) provides qualified protection for all other work product.  Such material ‘is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.’”  (Id.)  The work product protection against disclosure extends to both written and unwritten work product.  (See Fireman’s Fund Ins. Co. v. Super. Ct. (2011) 196 Cal. App. 4th 1263, 1281.)   The protection of work product is not absolute and is determined on a case-by-case basis.  (See Coito v. Super. Ct., supra, at p. 488, citing City of Long Beach v. Super. Ct. (1976) 64 Cal.App.3d 65, 71.)

In Coito, the California Supreme Court significantly limited the holding in Nacht that a party could not be compelled to respond to form interrogatory No. 12.2 because the information it seeks—a list of witnesses whom counsel interviewed—is attorney work product.  (See Nacht, supra, at p. 217.)  The California Supreme Court held that the identity of witnesses from whom a party’s counsel has obtained statements “is not automatically entitled as a matter of law to absolute or qualified work product protection.”  (Coito, supra, at p. 486.)  “In order to invoke the privilege, [the party] must persuade the trial court that disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts (qualified privilege).”  (Coito, supra, at p. 486.)  Thus, an objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts.   Upon such a showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute or qualified work product protection applies to the identities of the witnesses.  (See id. at p. 504.)

The California Supreme Court in Coito provided a hypothetical to illustrate the difference between a discoverable and a work-product-protected list of witnesses.  In a case involving a bus accident involving 50 surviving passengers and an allegation that the driver fell asleep at the wheel, if an attorney for one of the passengers took recorded statements from only 10 individuals, disclosure of the list may well indicate the attorney’s evaluation or conclusion as to which witnesses were in the best position to see the cause of the accident and such information may be entitled to absolute privilege.  (See id. at pp. 496 [“in some cases, the very fact that the attorney has chosen to interview a particular witness may disclose important tactical or evaluative information, perhaps especially so in cases involving a multitude of witnesses”] and 501.)

Even if absolute privilege were inapplicable, such a list may still be entitled to qualified privilege to the extent it reflects the attorney’s industry and effort in selecting which witnesses to ask for a recorded statement.  For example, the attorney may have “devoted significant effort to tracking down bus tickets and passenger logs in order to determine which passengers sat in which seats, and then decided to take recorded statements from the 10 passengers closest to the driver.  Even without obtaining the witness statements themselves, the bus company’s lawyer would gain valuable information by free riding on the attorney’s identification of the most salient witnesses. Such undue advantage taking is precisely what the Legislature intended the work product privilege to prevent.”  (See id. at 501.)

With respect to the actual witness statements that were obtained by counsel, the California Supreme Court held that witness statements created from an interview conducted by an attorney are entitled to qualified work product protection as a matter of law.  (See id. at p. 486.)  The California Supreme Court reasoned that failing to apply qualified work product protection to witness statements obtained by an interview conducted by an attorney would allow an adversary to free-ride off opposing counsel’s industry and efforts and impede the Legislature’s intent to encourage attorneys to prepare their cases thoroughly and to investigate not only the favorable, but also the unfavorable, aspects of those cases.  (See id. at pp. 496-497.)

In addition, the California Supreme Court noted that “a recorded witness interview may, in some instances, reveal the ‘impressions, conclusions, opinions, or legal research or theories’ of the attorney and thus be entitled to absolute protection. … This may occur not only when a witness’s statements are ‘inextricably intertwined’ with explicit comments or notes by the attorney stating his or her impressions of the witness, the witness’s statements, or other issues in the case. … It also may occur when the questions that the attorney has chosen to ask (or not ask) provide a window into the attorney’s theory of the case or the attorney’s evaluation of what issues are most important. Lines of inquiry that an attorney chooses to pursue through followup questions may be especially revealing.”  (Id. at 496.)

However, witness statements procured by an attorney will not always reveal the attorney’s thought process, as in the scenario in which an attorney collects statements from witnesses to an accident with no particular foresight, strategy, selectivity, or planning is not uncommon.  (See id. at p. 496 [“What, for example, of the situation in which an attorney sends an investigator to interview all witnesses listed in a police report, and the investigator asks few if any questions while taking the witnesses’ statements? Clearly, these statements would reveal nothing significant about the attorney’s impressions, conclusions, or opinions about the case”].)

Here, Plaintiff states that he was provided with a list of putative class members by Defendant and a “substantial amount of witness declarations,” but was not provided with their contact information.  (See Opp’n., p. 3:27-28, 4:17-18.)  Plaintiff also states that “all interviews with putative class members were arranged, taken and procured through the efforts of Plaintiff’s counsel.”  (Opp’n., p. 3:19-20.)  Plaintiff further states that “no written or recorded statements were taken” from the putative class members.  (Opp’n., p. 3:20-21.)

With respect to the list of the putative class members with whom Plaintiff or Plaintiff’s agents communicated, Plaintiff argues that the list is entitled to absolute protection because “[he] has interviewed less than 10 witnesses out of a possible 100 witnesses” and “[he] chose to interview those individuals [his] counsel thought to be the most salient witnesses.”  (Opp’n., 4:2, 4:8-9.)  Plaintiff contends that “[his] counsel used selectivity, industry and effort in locating and choosing whom to interview; therefore, compelling [him] to disclose whom [his] counsel chose to interview would reveal the strategy, impressions, conclusions and theories of [his] counsel.”  (Opp’n., p. 4:2-4.)

With respect to contents of the communications at issue, Plaintiff contends that the substance of the communications is entitled to absolute privilege, but he does not specifically explain how disclosing the contents of the particular communications at issue would reveal his counsel’s impressions, conclusions, opinions, or legal research or theories.  Plaintiff merely asserts in a conclusory manner that, as no written or recorded statements were taken, “[d]isclosure would force [his] counsel to respond based on mental impressions, conclusions, or opinions derived from such communications.”  (Opp’n., p. 6:3-12.)

In the alternative, Plaintiff argues that, at the very least, the lists of putative class members with whom he or his agents communicated and the substance of those communications are entitled to qualified work product protection.  (See Opp’n., 4:14-15.)  Plaintiff again points out that he “only interviewed a very small fraction of the witnesses.”  (Opp’n., p. 4:26-27.)  Plaintiff contends that Defendants’ counsel is not seeking to take “advantage of [his] counsel [sic] industry and/or efforts’” and “gain valuable information by free riding on [his] identification of salient witnesses.” (Opp’n., p. 5:1-3, 5:22-28.)  Plaintiff further contends that Defendants have not demonstrated that a denial of discovery would be unfairly prejudicial because Defendants have the identities and contact information of every putative class member, since the individuals are their current and former employees, and Defendants are free to interview the putative class members for themselves.  (See Opp’n., p. 6:13-23.)  Finally, Plaintiff asserts that “this motion should be denied on equitable grounds of fundamental fairness alone … because, Defendant has and continues to refuse to provide the contact information of the putative class.”  (Opp’n., p. 1:28, 2:1-2.)

In their motion, Defendants do not address Plaintiff’s objections other than to argue in a conclusory manner that the identity of the putative class members with whom Plaintiff or his agents communicated and the substance of those communications are relevant and relevant information is generally discoverable.  In their reply papers, Defendants contend only that Plaintiff can not establish that the substance of the communications are entitled to absolute work product protection (i.e., that the will reveal Plaintiff’s counsel’s tactics, impressions, or evaluation of the case).  In support of their position, Defendants submit the declaration of Curt Shelton (“Mr. Shelton”), an employee of Defendants, in which Mr. Shelton declares that he was contacted by a gentleman who stated he was a lawyer and was going to file a class action suit against Defendants.  (See Shelton Dec., p. 1.)  Mr. Shelton further declares that he told the individual that he always got his meal breaks.  (See Shelton Dec., p. 2.)   Mr. Shelton also declares that the individual asked if he could call Mr. Shelton again and told him that if the lawsuit was successful he would receive about $26,000.  (Id.)

The Court finds that Plaintiff has made a preliminary showing that answering SI Nos. 1 and 2 may reveal Plaintiff’s counsel’s tactics, impressions, or evaluation of the case, or would result in Defendants’ counsel taking undue advantage of Plaintiff’s counsel’s industry or efforts.   Plaintiff points out that his counsel was not provided with the contact information of the putative class members and has located and interviewed 10 out of 100 class members whom he believed were the most salient witnesses.  (Opp’n., 4:2, 4:8-9.)   Thus, this case is similar to the hypothetical discussed by the California Supreme Court in Coito involving the bus accident as there are a multitude of potential witnesses and the mere disclosure to the list of the putative class members interviewed by Plaintiff’s counsel may well indicate Plaintiff’s counsel’s evaluation or conclusion as to which witnesses are the most valuable to the case.  (See Coito, supra, at pp. 496 and 501.)   Additionally, the substance of any communications that the putative class members made to Plaintiff’s counsel are entitled to qualified work product protection as a matter of law.  (See id. at p. 486.)

While the Court is unable to determine whether the list of putative class members interviewed and the contents of those communications are entitled to absolute work product protection without reviewing the substance of the communications, Plaintiff has made a preliminary showing that answering SI Nos. 1 and 2 may result in the disclosure of information that is entitled to, at the very least, qualified work product protection.  Nonetheless, since Defendants have not established that denial of discovery will unfairly prejudice them in preparing their defenses or result in an injustice, the qualified work product protection protects the information sought by SI Nos. 1 and 2 from disclosure.(See Coito, supra, at p. 488.)  Thus, Plaintiff’s objection to SI Nos. 1 and 2 based on the work product doctrine is sustained.

Accordingly, further responses to SI Nos. 1 and 2 are not warranted and Defendants’ motion to compel further responses to the same is DENIED.

III.           Requests for Monetary Sanctions 

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.

A.           Defendants’ Requests

Defendants request awards of monetary sanctions in connection with both of their motions.

1.            Motion to Compel Attendance at Deposition

Defendants request an award of monetary sanctions in the amount of $2,895 against Plaintiff and his counsel under Code of Civil Procedure sections 2025.480, subdivision (j) and 2025.450, subdivision (g)(1).[2]

As a preliminary matter, Code of Civil Procedure section 2025.480, subdivision (j) is inapplicable to the instant case because it provides for an award of monetary sanctions in connection with a motion to compel an answer to a deposition question or to produce a document specified in a deposition notice, and the instant motion is one to compel Plaintiff’s attendance at deposition.

Code of Civil Procedure section 2025.450, subdivision (g)(1) provides that the court shall impose a monetary sanction 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.

Here, Defendants were successful on their motion to compel Plaintiff’s attendance at deposition.  The Court does not find that Plaintiff acted with substantial justification and there are no other circumstances that make the imposition of the sanction unjust.

Defendants’ counsel declares that he spent 5.6 hours on the instant motion at his hourly rate of $425.  Defendants’ counsel anticipates spending an additional hour preparing for and attending the hearing on the motion.  Defendats also seek to recoup $90 in filing fees.

The Court does not award sanctions for expenses not yet incurred. (See Code Civ. Proc., §2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Consequently, the 1 hour of anticipated attorney fees is not compensable. The hourly rate, amount of time spent on the motion, and the filling fee are otherwise reasonable.

Accordingly, Defendants’ request for monetary sanctions against Plaintiff and his counsel is GRANTED IN PART in the amount of $2,470.

2.            Motion to Compel Further Responses to the SI

Defendants request an award of monetary sanctions in the amount of $1,500 against Plaintiff and his counsel under Code of Civil Procedure section 2030.300.

Code of Civil Procedure section 2030.300, subdivision (d) provides that the Court may impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.

Here, Defendants were not successful on their motion to compel further responses to SI Nos. 1 and 2 and therefore are not entitled to an award of monetary sanctions.  Accordingly, Defendants’ request for monetary sanctions is DENIED.

               B.           Plaintiff’s Requests

Plaintiff requests awards of monetary sanctions in connection with both of Defendants’ motions.

1.            Motion to Compel Attendance at Deposition

Plaintiff requests an award of monetary sanctions in the amount of $1,100 in his opposition to the motion to compel his attendance at deposition.  However, Plaintiff does not cite any statutory authority whatsoever in support of his request.  Accordingly, Plaintiff’s request for monetary sanctions is DENIED.

2.            Motion to Compel Further Responses to the SI

Plaintiff requests an award of monetary sanctions in the amount of $1,800 in his opposition to the motion to compel further responses to SI Nos. 1 and 2.  However, Plaintiff does not cite any statutory authority whatsoever in support of his request.  Accordingly, Plaintiff’s request for monetary sanctions is DENIED.

Conclusion and Order

Defendants’ motion to compel further responses to SI Nos. 1 and 2 is DENIED.

Defendants’ motion to compel Plaintiff’s attendance at his deposition is GRANTED.  Accordingly, Plaintiff is required to submit to a deposition within 20 calendar days of the date of the filing of this order, on a date and time mutually agreed upon by the parties.

Defendants’ request for monetary sanctions against Plaintiff and his counsel in connection with the motion to compel Plaintiff’s attendance at deposition is GRANTED IN PART in the amount of $2,470.  Accordingly, Plaintiff and his counsel shall pay $2,470 to Defendants’ counsel within 20 calendar days of the filing of this Order.

Defendants’ request for monetary sanctions in connection with the motion to compel further responses to SI Nos. 1 and 2 is DENIED.

Plaintiff’s requests for monetary sanctions are DENIED.

 

 

 

________________­­­____________ DATED:

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

 

[1] Interestingly, it seems that Plaintiff served the identical interrogatory upon Defendants.  See moving papers, exhibit C., e-mail of 1 July 2014 from Mr. Wilson to Mr. Mara.

[2] In their motion, Defendants cite Code of Civil Procedure section 2025.450, subdivision (j)(1) in support of their request for monetary sanctions.  It is clear to the Court that this is a typographical error as the correct subdivision of Code of Civil Procedure section 2025.450 is (g)(1).