Morazan v. Morazan-Aviles		CASE NO. 112CV220779
DATE: 22 August 2014	TIME: 9:00	LINE NUMBER: 5

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 21 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 22 August 2014, the motion of plaintiff/cross-defendant Marvin Morazan (“Plaintiff”) to compel defendant/cross-complainant Janet Morazan-Aviles (“Defendant”) to produce documents requested in the deposition notice, to comply with prior court orders and for monetary sanctions was argued and submitted.  Defendant filed a formal opposition to the motion in which she also requests monetary sanctions.

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

Statement of Facts

Plaintiff and Defendant are siblings and the son and daughter, respectively, of Edgar Morazan (“Edgar”) and Teresa Morazan (“Teresa”). In 2008, Edgar and Teresa began receiving settlement proceeds from an asbestos case in which Edgar was a plaintiff. In total, Edgar and Teresa received approximately $700,000 from the settlement. Edgar passed away in October 2008. Teresa passed away in June 2011. According to Plaintiff, both before and after his parents’ deaths, Defendant took control of, managed, and ultimately misappropriated their parents’ money. Based on these allegations, in March 2012, Plaintiff filed a complaint against his sister for breach of fiduciary duties, elder abuse, fraud, breach of contract, negligence, conversion, accounting and declaratory relief. The gist of the complaint is that, by misappropriating their parents’ money, Plaintiff’s sister divested him of his inheritance. In October 2012, Defendant filed a cross-complaint against her brother alleging similar causes of action (elder abuse, fraud, breach of fiduciary duties, etc.) based upon allegations that Plaintiff misappropriated monies and property belonging to their parents when they lived in Plaintiff’s home prior to their deaths.

Discovery Dispute

On 13 January 2014, Plaintiff served Defendant with a third amended notice of deposition and attendant request for production of documents. The deposition notice required Defendant to appear on 30 January 2014 to provide testimony and specifies 120 categories of documents that Defendant was to bring to the deposition.

On 23 January 2014, Defendant served Plaintiff with an objection to the deposition notice stating that all documents requested had already been produced.

Defendant appeared for her deposition on 30 January 2014, but did not bring any of the requested documents. Given Defendants’ failure to produce the requested documents, the deposition lasted a little under 5 hours at which point Plaintiff’s counsel indicated that there was no reason to continue with the deposition until Defendant produced the documents.

On 26 March 2014, Defendant filed a motion for a protective order arguing that she had produced all bank records in her possession that were relevant and seeking an order stating that her Bank of America records, personal bills, and credit card accounts were not relevant to this action. The motion was heard on 18 April 2014. At the conclusion of the hearing, the Court adopted its tentative ruling, which granted in part and denied in part the motion for a protective order. The Court found that Plaintiff’s fifth set of special interrogatories and fifth set of requests for production of documents were duplicative of special interrogatories and document requests previously served on Defendant. Based upon that finding, the Court held that Defendant need not respond to the special interrogatories or document requests. In its ruling, the Court noted that Defendant also asked the Court to declare that Plaintiff “is not entitled to further discovery of [any of] Defendant’s financial records” through any discovery method. The Court expressly denied that request.

On 7 April 2014 Plaintiff filed a motion seeking to compel Defendant to produce the documents requested in the deposition notice among other, unsupported, requests.  The motion was heard on 1 May 2014.  The Court granted Plaintiff’s motion in part, finding that Plaintiff had demonstrated good cause concerning the 120 categories of documents requested in the deposition notice.  As to these 120 categories the Court expressly overruled Defendant’s objections on the grounds or relevance and undue burden, and expressly stated that Defendant’s objections on the grounds that these requests were unintelligible, overbroad or duplicative had been waived due to failure to assert them in written objections or at the deposition itself.   As to Plaintiff’s objection on the basis of privacy, the Court found that the already existing protective order limiting access to Defendant’s financial information to Plaintiff’s counsel and prohibiting Plaintiff from using the discovered information for any purpose other than the ensuing litigation adequately protected Defendant’s privacy. (See Order on Discovery Motion, dated 1 May 2014.)  The objections any of the 120 categories of document requests on privacy grounds were therefore overruled.   The Court ordered Defendant to appear for a continuation of her deposition and to produce all documents in her possession responsive to the 120 requests attendant to the notice of deposition at a date and time mutually agreed upon by the parties but no later than 30 days from the issuance of the written order.

By 7 May 2014 the parties agreed that the continued deposition would take place on 30 May 2014, although the length of time permitted was disputed.  (Decl. of Koenig, Ex. 2.)  A Fifth Notice of Deposition was served on Defendant on 19 May 2014, which included the prior 120 categories of documents already requested and already ruled on by the Court as set forth above and 19 additional requests.  (Decl. of Koenig, Ex. 3B.)

On 20 May 2014 Defendant’s Counsel stated in an email to Plaintiff’s Counsel that, because of the 19 additional requests, “[w]e are going to have to continue my client’s deposition.  . . .  Judge Manoukian’s Order did not include Requests for Production that were not part of the previous Deposition Notice.  We need time to properly respond to the original requests plus the new requests.”  (Decl. of Koenig, Ex. 6.)

Thereafter both counsel engaged in meet and confer efforts to negotiate the terms of a potential stipulation.  However, no stipulation was ever agreed to or signed by Plaintiff’s Counsel, much less presented to the Court.

On 27 May 2014 Defendant’s Counsel informed Plaintiff’s Counsel via email that “[t]he deposition is not going forward on Friday May 30^th.” (Decl. of Koenig, Ex. 8.)  The Court had ordered Plaintiff’s further deposition to take place within 30 days of the 1 May 2014 Order.

On 31 May 2014 Plaintiff’s Counsel sent an email to Defendant’s Counsel stating in part that “as of this time, we have no agreement and no court order.  Thus, as I have repeated[ly] advised you, we believe that the failure of you and your client to appear for her deposition yesterday is a violation of the Court’s order.”  (Decl. of Koenig, Ex. 18.)

On 20 June 2014 Defendant served a 253 page Response to the Fifth Notice of Deposition stating objections to all requests of documents.  (Decl. of Koenig, Ex. 30.)  Defendant purported to make both general and specific objections to all requests, despite all objections to the first 120 requests having already been either overruled by the Court or ruled to have been waived in the 1 May 2014 Order.  Defendant also claimed that without waiving the stated objections she “hereby produces all documents in her possession.”  Defendant produced a disc with copies of these documents.

On 20 June 2014 Plaintiff’s Counsel responded via email stating in part that “virtually all of the material you provided was either produced before, were depositions, and/or obtained through subpoenas, including subpoenas on Mr. Morazan’s behalf.” (Decl. of Koenig, Ex. 25.)

On 23 June 2014 Defendant’s Counsel stated in an email to Plaintiff’s Counsel that the Fifth Notice of Deposition included new Requests for Production and that “[o]bjections have not been waived.”  (Id.)

On 24 June 2014 Plaintiff’s Counsel responded that there had been no agreement to continue the deposition from 30 May 2014 and that the failure to appear for further deposition and produce documents was a violation of the Court’s 1 May 2014 Order.  (Decl. of Koenig, Ex. 26.)  Plaintiff’s Counsel specifically asked Defense Counsel to clarify that, other than three bank statements, no financial records that had not already been produced were provided and no information as to credit cards or accounts into which Defendant paid money were provided.  (Id.)  No response to this inquiry was forthcoming.

Following further unsuccessful meet and confer efforts Plaintiff filed the current motion on 31 July 2014.  Defendant filed an Opposition on 11 August 2014 and Plaintiff filed a Reply on 15 August 2014.

Discussion

I.       Requests for Judicial Notice

A.  Plaintiff’s Request

Pursuant to Evidence Code §452(d), Plaintiff requests that the Court take judicial notice of 1) The Court’s prior order of 1 May 2014, and 2) “All the other pleadings and filings in the above-entitled action.”

The prior order of 1 May 2014 is part of the Court’s file in this case and relevant to the matter presently before the Court.  Judicial Notice of the Order is therefore GRANTED.  Notice of “all other pleadings and filings” is DENIED.  Plaintiff has failed to identify any such documents or explain their relevance to the present motion.

B. Defendant’s Request

Pursuant to Evidence Code §452(d), Defendant requests that the Court take judicial notice of three documents, 1) The Court’s prior Order of 1 May 2014, 2) The Court’s prior Order of 18 April 2014, and 3) The Court’s prior Order of 10 July 2013.

These prior orders are part of the Court file and are relevant to the matter presently before the Court.  Judicial Notice of the three orders is therefore GRANTED.

II.      Plaintiff’s Motion to Compel Compliance with Orders, Compel Production and Further Deposition

Plaintiff seeks 1) an order compelling Defendant to produce all documents requested in the Fifth Notice of Deposition; 2) an order holding that a. Defendant is in violation of the Court’s 1 May 2014 Order, and b. the Court’s 10 July 2013 Order; 3) orders “to clarify and eliminate” Defendant’s “evasive arguments,” including that “Defendant’s obligation and responsibility to produce such information , records and documents is not limited to those in her personal physical possession . . .  That the documents and records requested include all those on computers, back-up storage, and/or in any other electronic form.  That Defendant be ordered to appear and testify at her continued deposition . . .  That the deposition of Defendant . . . not be limited to 7 hours . . . That, to make such deposition more efficient, Defendant . . . be ordered to provide all of the information and records set forth in the Fifth Notice of Deposition . . .; 4) an order that Defendant and her counsel pay sanctions and attorney fees and costs “in the sum of at least $13,000,” and; 5) That the Court “advise Department 2 of the problems caused by Defendant and request further continuance of Defendant’s motion for summary judgment.”  (Pl.’s Notice of Mot. To Comply with Orders, etc.)

A. Legal Standard

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. [“CCP”], § 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.” (CCP, § 2025.450(b)(1).)

Code of Civil Procedure section 2025.480 provides that, if a deponent fails to answer any question or to produce any document specified in a deposition notice, the party seeking discovery may move the court for an order compelling an answer or production of documents described in the notice. (CCP, § 2025.480 (a).)  Section 2025.480 is silent as to which party carries the burden of persuasion. As a general rule, the party objecting to discovery bears the burden of defending its objections. (See Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; see also Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:814 [“A deponent who has objected to a question and refused to answer bears the burden of justifying such refusal on the motion to compel”].) However, “[a] motion to compel production of documents described in a deposition notice must be accompanied by a showing of ‘good cause’—i.e., declarations containing specific facts justifying inspection of the documents described in the notice.” (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:801.2; see also CCP, § 2025.450(b)(1).)

Where the party seeking discovery has already brought a motion to compel that was granted by the Court, and the opposing party continues to refuse to comply by appearing for deposition, producing further documents as ordered and/or without any assertion of overruled/waived objections, etc. despite the Court’s order, sanctions are available above and beyond those that may be imposed on the initial motion to compel.  (CCP, §2023.030(b)-(d).)  Disobeying a court order to provide further discovery is itself a “misuse of the discovery process” pursuant to CCP §2023.010(g).  Sanctions available in such circumstances above and beyond monetary sanctions include issue and evidentiary sanctions.  Willful failure to comply with an order of the Court (such as by continuing to assert objections that have already been overruled and/or denied waived by the Court and failing to appear for a deposition the Court ordered to take place) is also punishable as contempt of court.  (CCP, §§2023.030(e), 2025.480(k).)

B.  Preliminary Matters

1.            Nature of Motion and Permissible Requested Relief

Plaintiff’s requests that the Court issue an order to “clarify and eliminate” arguments and to “advise Department 2” of the status of discovery (requested orders 3 and 5 above) are not supported by any citations to authority authorizing the Court to enter such orders and are DENIED.  (See Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal App 4^th 927, 934 [court may deny motion not accompanied by a memorandum setting forth the legal basis for the relief.]  The Court does not issue advisory opinions, departments of the Superior Court do not advise each other on how to deal with matters before them and Plaintiff is not only free to inform Department 2 of the status of discovery himself, but the summary judgment statute specifically provides that a party opposing such a motion may assert the status of discovery as a reason why such motion should be denied or continued. (CCP §437c(h).)

What is properly before the Court and supported by argument is Plaintiff’s request for an order stating the Defendant is in violation of the Court’s prior Orders by refusing to appear for her continued deposition as ordered and by continuing to assert objections either overruled or ruled to have been waived; to compel production of all documents and items requested in the Fifth Deposition Notice; to allow the continued deposition already ordered to continue beyond the usual seven hour limit; and for monetary sanctions.

C.  Analysis

1.            Defendant is in violation of the Court’s 1 May 2014 Order

The Court’s Order of 1 May 2014 clearly stated that “Defendant shall appear for the continuation of her deposition and produce all documents in her possession responsive to the requests attendant to the notice of deposition at a date and time mutually agreed upon by the parties but no later than 30 days from the issuance of the written order on this matter.”  The email correspondence between counsel for the parties demonstrates that the parties initially agreed to the date of 30 May 2014 for the continued deposition.  Plaintiff’s Fifth Amended Notice of Deposition, setting that continued deposition for 30 May 2014, was a valid notice of deposition and, contrary to Defendant’s argument, no agreement to continue the further deposition beyond 30 May 2014 was ever formalized between counsel much less presented to or approved by the Court. Accordingly, Defendant’s refusal to appear for continued deposition on 30 May 2014 constitutes a willful disobedience of the Court’s 1 May 2014 Order.

Defendant’s continued assertion of various objections to the first 120 requests for documents attached to the Fifth Amended Notice, all of which were already ruled on in the Court’s 1 May 2014 Order, also constitutes willful disobedience of the 1 May 2014 Order.  Defendant in her opposition claims that the Court’s 1 May 2014 Order only related to requests for documents in Plaintiff’s Third Amended Notice of Deposition and that as “the Court had not previously seen, or been aware of Plaintiff’s fifth amended notice of taking deposition, the Court could make no Order regarding such notice, and therefore Plaintiff’s argument that Defendant is in violation of this Court’s Order must fail.”  Opp. at 6:22-25.  This argument that a mere change in caption from third amended notice to fifth amended notice renders the Court’s Order void as to these 120 document requests is unsupported by citation to any authority, is unpersuasive, and absurd.

Defendant shall provide further responses to the first 120 document requests in the Fifth Amended Notice either at or prior to her continued deposition.  These responses, whatever they may be, shall be made without any objection as all objections to these 120 requests have either already been overruled (including privacy objections, as the Court previously found that the existing protective order offers sufficient protection) or ruled to have been waived as stated in the Court’s 1 May 2014 Order.

Defendant shall appear for the continuation of her deposition and produce further responses to the first 120 requests in the notice of deposition at a date and time mutually agreed to by the parties but no later than 10 days from the issuance of the written order on this matter.

Plaintiff Marvin Morazan may attend Defendant’s continued deposition.  The argument made by Defense Counsel in meet and confer correspondence that the existing protective order bars Plaintiff from attending Defendant’s deposition is incorrect  Defendant has not sought, and the Court in any event has no power to grant, a protective order barring a party from attending another’s deposition.  (See Willoughby v. Superior Court (Lui) (1985) 172 Cal App 3d 890, 892.)  As it appears to be Defendant’s position that no additional documents will be produced at the continued deposition this concern may be moot.  In any event Plaintiff’s Counsel is instructed to bear in mind the terms of the existing protective order and ensure that if Plaintiff chooses to attend the deposition he is situated in such a way that he may not see or review the contents of documents subject to the protective order that may be shown to Plaintiff’s Counsel.

Defendant has failed to establish that Plaintiff is in violation of any specific terms of the Court’s prior order of 10 July 2013.

2.            Plaintiff’s Motion to Compel Production of Documents in the Fifth Deposition Notice

This Motion is largely rendered MOOT by the Court’s ruling above that Defendant shall appear for continued deposition and shall further respond to the first 120 requests for production in the Fifth Notice of Deposition that were previously ruled on by the Court without asserting any objections.

As to the additional 19 requests for production of documents at deposition (nos. 121-139) included in the Fifth Amended Notice, this motion is premature as Defendant did not appear for her continued deposition and the Court has not previously ruled on these additional requests or on Defendant’s objections to them.

The service of a deposition subpoena is effective to require any witness to appear and testify at a deposition at the location, date, and time specified in the subpoena “as well as to produce any document . . . or tangible thing for inspection.” (See CCP, § 2025.280, subd. (a).) The statute contemplates that a deponent asked to bring documents to the deposition for inspection may object to the production of such documents at the deposition itself. (See Carter v. Superior Court (1990) 218 Cal.App.3d 994, 997 [noting that procedure relating to inspection demands “is quite different from a deposition at which a party is required to bring documents”].)  Once the party appears for the deposition and either objects to the document requests or simply fails to produce them, the requesting party then may file a motion to compel production. (See Carter, supra, 218 Cal.App.3d at p. 997.) This procedure is also consistent with California Rule of Court, rule 3.1345(a)(5), which requires a motion to compel production of documents or tangible things at a deposition to be accompanied by a separate statement setting forth the particular documents or demands at issue, the responses received, and the reasons why production should be compelled.  No such statement was filed by Defendant as to these additional requests.

3.            Request for Relief from Seven Hour Time Limit for Deposition

Under Code of Civil Procedure section 2025.290, “a deposition examination of [a] witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony.” The section goes on to state, however, that “[t]he court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” (CCP, § 2025.290(a).)

Defendant’s willful disobedience of the Court’s 1 May 2014 Order has clearly impeded and delayed the completion of Defendant’s deposition.  It was established at the prior hearing that the initial session of Defendant’s deposition lasted at little under 5 hours.  Therefore, without any further order, Defendant’s continued deposition could last slightly more than 2 hours.  Given the demonstrated unwillingness of Defendant to comply with the Court’s 1 May 2014 Order the Court finds that additional deposition time is warranted.  As Plaintiff has not requested a specific amount of additional time the Court hereby orders that Defendant’s continued deposition may last up to five hours total; the slightly more than two hours Plaintiff is already entitled to plus just under three additional hours.

III.     Requests for Monetary Sanctions

A.  Plaintiff’s Request

Plaintiff has substantially prevailed on his motion to compel and seeks monetary sanctions against Defendant and her attorney.  Defendant objects that Plaintiff has failed to identify any specific statutory basis for this request but this is immaterial as the Court has found that Defendant willfully disobeyed the Court’s 1 May 2014 Order and this constitutes an abuse of the discovery process for which the Court may impose monetary sanctions pursuant to CCP §2023.030(a).  Such sanctions may be imposed to compensate the reasonable expenses, including attorney’s fees, incurred as a result of Defendant’s conduct.

Counsel for Plaintiff states that his hourly rate is $325.  This hourly rate is reasonable.  In the “updated” request for sanctions and attorney’s fees in his declaration submitted with Plaintiff’s Reply, Counsel states that he spent “[o]ver 15 hours” emailing and communicating with Defendant’s Counsel, drafting proposed stipulations and reviewing objections for which he requests $4,875 in sanctions.  As the Court stated in the prior order, expenses stemming from time spent as a part of the meet and confer process (which would include the unsuccessful negotiations on a possible stipulation) cannot be said to have been “incurred” as a result of sanctionable conduct.  This amount is not recoverable as sanctions.

Counsel further declares that he spent “[o]ver 20 hours” researching and preparing this motion.  This is the same amount of time Counsel claimed to have spent preparing the prior motion, which the Court found unreasonable.  Given Plaintiff’s clear failure to comply with the 1 May 2014 Order this is also an unreasonable amount of time to have spent preparing this more straightforward motion.  Half of that amount of time, 10 hours, is reasonable.  Counsel also seeks to recover the $90.00 filling fee for the motion.

Counsel states that he “expended over 12 hours” to review the opposition and prepare the Reply.  Half of that amount, 6 hours, is reasonable.  He states that if an appearance is required at a hearing on this motion he further expects to spend 4 hours making such an appearance.  Sanctions are not awarded for anticipated expenses as they have not been “incurred.”  Also for the first time in the Reply Declaration Counsel for Plaintiff seeks to recover as sanctions his costs and fees incurred in opposing Defendant’s 6 August 2014 ex parte application for a continuance of this motion (which was denied).  Plaintiff has failed to establish that seeking such a continuance was sanctionable conduct by Defendant.

Accordingly, Plaintiff’s request for monetary sanctions against Defendant and her counsel is GRANTED IN PART in the amount of $5,290.00 (10 hours for original motion x $325/hr + $90 filing fee + 6 hours for reply x $325/hr)

B. Defendant’s Request

Defendant requests monetary sanctions against Plaintiff and his counsel in the amount of $2,606.00 for time spent opposing the motion.  As Defendant did not successfully oppose Plaintiff’s motion to compel her request for sanctions is DENIED.

Defendant’s request that the Court vacate all prior awards of sanctions against Defendant and her counsel is also DENIED.

Conclusion and Order

Plaintiff’s request for judicial notice is GRANTED IN PART and DENIED IN PART.

Defendant’s request for judicial notice is GRANTED.

Plaintiff’s motion to compel compliance with the Court’s prior orders is GRANTED in part.  Plaintiff has established that Defendant in violation of the Court’s order of 1 May 2014.  Accordingly, Defendant shall appear for the continuation of her deposition and produce all documents in her possession responsive to the requests attendant to the notice of deposition at a date and time mutually agreed upon by the parties but no later than 10 days from the issuance of the written order on this matter.  As to the first 120 requests for documents in the deposition notice already ruled on by the Court, Defendant shall produce further responses by no later than the date of the continued deposition without any objections.  Plaintiff may attend this continued deposition.  The continued deposition may last for up to five hours.

Plaintiff’s motion to compel Plaintiff to produce all documents requested in the Fifth Notice of Deposition, to the extent it is not rendered moot by the order above compelling Defendant to provide further responses to the first 120 requests, is DENIED without prejudice as premature.

Plaintiff’s request for monetary sanctions is GRANTED IN PART in the amount of $5,290.00.  Defendant and her counsel shall pay $5,290.00 to counsel for Plaintiff within 20 calendar days of the filing of this Order.

Defendant’s request for monetary sanctions is DENIED.

 

 

 

________________­­­____________ 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.”