Stanley Kramer v. Floyd Gerhardt, et al.		CASE NO. 112CV236626
DATE: 29 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 28 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 28 August 2014, the motion of Defendants Floyd Gerhardt and Sabrina Saucedo (collectively “Defendants”) to compel attendance at a deposition and for monetary sanctions was argued and submitted.  Plaintiff Stanley Kramer filed formal opposition to the motion.

I.       Background

This matter arises out of a dispute regarding a remodeling project in Santa Clara. Plaintiff seeks recovery on his contract with Defendants, while Defendants allege they suffered damages due to Plaintiff’s allegedly defective work.

II.      Discovery Dispute

On 17 May 2014, Defendants served, by mail, a deposition notice seeking to depose Stanley Kramer on 17 June 2014. On 13 June 2014, counsel for Plaintiff indicated he was unavailable for the deposition and sought to reschedule. On 17 June 2014, after discussion between counsel, Defendants served an amended deposition notice setting the deposition for 24 June 2014. On 1 July 2014, Defendants served an amended deposition notice setting 15 July 2014 as the deposition date. On 14 July 2014, after being on vacation, Plaintiff’s counsel informed Defendants’ counsel that Plaintiff was unavailable for that date. On 22 July 2014, Defendants’ counsel attempted to confer with Plaintiff’s counsel about setting a new date, but Plaintiff was unreachable by counsel.

On 1 August 2014, Defendants’ filed the instant motion.

III.     Analysis

A.  Formatting a Motion

A motion, including a discovery motion, must include the notice of the motion, the motion itself, a memorandum of points and authorities in support of the motion. Cal. Rules of Court, rule 3.1112(a). The memorandum of points and authorities must state facts relevant to the instant issue, provide a concise statement of the law, evidence, and arguments relied upon, and a discussion of the statutes, casebooks, and other cited authority that supports the memorandum writer’s position. Cal. Rules of Court, rule 3.1113(b). The court may, in its discretion, deny a motion on procedural grounds if the memorandum is defective. Quantum Cooking Concepts, Inc. v. LV Assoc., Inc. (2d Dist. 2011) 197 Cal.App.4th 927, 933 (citing Chavez v. Netflix, Inc. (1st Dist. 2008) 162 Cal.App.4th 43, 52).

       B. Defendants’ Motion to Compel Plaintiff To Attend His Deposition

Defendants’ memorandum of points and authorities includes a long statement of facts. Defendants’ argument, as to the motion to compel itself, is that failing to respond to or submit to an authorized method of discovery is prohibited as a misuse of the discovery process under Code of Civil Procedure Section 2023.010. This is an accurate statement of the law. Defendants then state that Plaintiff refused to sit for deposition twice. But Defendants fail to address the necessary link in the memorandum: depositions are authorized methods of discovery. Nowhere do Defendants indicate upon what authority they bring the instant motion.

The Court is inclined to deny the motion for that defect. However, Plaintiff’s opposition did not address this issue and the Court is not inclined to raise an argument that the other side has waived.[1] The Court assumes the motion was filed under Code of Civil Procedure Section 2025.450 and treats the motion as such.

To compel attendance at a deposition, after a party failed to appear, the moving party must show that the deponent was properly served with a deposition notice. Code Civ. Proc. §2025.280(a). The moving party must then show that the deponent did not appear for the deposition. Code Civ. Proc. §2025.450(a). Finally, the moving party must show that follow-up contact was made. Code Civ. Proc. §2025.450(b)(2); Leko v. Cornerstone Home Inspection (2d Dist. 2001) 86 Cal.App.4th 1109, 1124. While not as formal as a meet-and-confer requirement, the moving party still must make a good-faith attempt to resolve the issue before bringing the matter before the Court. See Code Civ. Proc. §2025.450(b)(2); Leko, supra, 86 Cal.App.4th at 1124; Sears, Roebuck & Co. v. National Un. Fire Ins. Co. (2d Dist. 2005) 131 Cal.App.4th 1342, 1351-52.

Defendants provide a declaration from counsel stating that Plaintiff was served with two deposition notices.[2] The first deposition notice at issue was served by mail on 17 May 2014 for 17 June 2014. See Code Civ. Proc. §§ 1013(a), 2016.050, 2024.020(a), 2025.270(a). The notice indicated that Plaintiff Kramer would be deposed. It provided the location of the deposition. The deposition notice was properly served.

Defendants’ amended notice was served less than 10 days prior to the date of deposition. Plaintiff did not object to this timing and conceded in his reply that he cancelled it at the last minute.

Defendants’ second amended notice was served by mail on 1 July 2014 with the deposition to take place on 15 July 2014. This service was not proper and Plaintiff objects to the date in his opposition. Defendants state that Plaintiff agreed to that date and point to an e-mail dated 24 June 2014 from Plaintiff’s counsel where Plaintiff states, “Your office earlier mentioned July 15 and July 16 as other potential dates for the deposition. Are those dates still open for your offices?” followed by an e-mail dated 25 June 2014 stating that Plaintiff’s counsel would be unavailable for service from 28 June to 8 July. Defendants do not present any evidence in their correspondence indicating that Defendants agree to July 15 and putting Plaintiff’s counsel on notice as to that date.

There was no agreement as to the second amended notice’s deposition date. While not fatal in itself, service of the second amended notice was improper because it did not give 15 days notice as required for service by mail. The second amended notice is the operative one, as it amends the initial deposition notice. Defendants’ notice was defective.

Defendants’ motion to compel the deposition of Stanley Kramer is DENIED WITHOUT PREJUDICE to serving a new, proper deposition notice.

However,  although not included as a formal part of this Order,  this Court would be most pleased to see Plaintiff stipulate to having his deposition taken at a code-compliant location within 45 days of the date of the filing of this Order.

         C.  Request 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.

Defendants make a request for monetary sanctions citing Code of Civil Procedure Section 2025.440(a). Defendants state that Section 2025.440(a) stands for the proposition that if a deponent fails to appear at a properly noticed deposition, “the court shall impose monetary sanctions.” Section 2025.440(a) says nothing of the sort.

Section 2025.440(a) states that if a deponent fails to appear due to improper service, the Court shall award a sanction against the noticing party in favor of any other party to reimburse costs received as a result of the noticing party’s defect. The Court assumes that Defendants are not arguing that they improperly served Plaintiff and should therefore be subject to sanctions in favor of Plaintiff.  The proper citation of authority for the motion and for the imposition of sanctions in this matter would have been Code of Civil Procedure, §§ 2025.450(a), (b) and (g).

Defendants’ request for monetary sanctions is DENIED.

Conclusion and Order

Defendants’ motion to compel the deposition of Stanley Kramer is DENIED WITHOUT PREJUDICE to serving a new, proper deposition notice.

However,  although not included as a formal part of this Order,  this Court would be most pleased to see Plaintiff stipulate to having his deposition taken at a code-compliant location within 45 days of the date of the filing of this Order.

Defendants’ request for monetary sanctions is DENIED.

 

 

________________­­­____________ DATED:

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

 

[1] Ordinarily, if an argument is not presented, it will not be considered.  (See Shoemaker v. County of Los Angeles (1995) 37 Cal. App. 4th 618, 634, n.17, citing Cox Cable San Diego, Inc. v. City of San Diego (1987) 188 Cal. App. 3d 952, 968.)

[2] The Court reminds counsel that declarations are for stating facts not argument. Paragraph 12’s statement that Plaintiff’s conduct is disrespectful of the discovery process and that it suggests Plaintiff is not taking his case seriously is argument, not fact. Paragraph 13’s statement that “[m]onetary sanctions against Plaintiff is [sic] appropriate at this time” is a legal conclusion and not fact.  “[The inclusion of argument in declarations] is a sloppy practice which should stop. Even at its most benign, it is a practice that forces the trial and appellate courts, and opposing counsel, to sort out the facts that are actually supported by oath from material that is nothing more than the statement of an opinion ostensibly under oath. More fundamentally, however, it makes a mockery of the requirement that declarations be supported by statements made under penalty of perjury. The proper place for argument is in points and authorities, not declarations.”  (In re Marriage of Heggie (2002) 99 Cal. App. 4^th 28, 30, fn. 3.)