2016-00203911-CU-BC

Mark III Construction, Inc. vs. DIV 15 Tech

Nature of Proceeding: Motion to Compel 1) Admissions 2) Form 3) Special

Filed By: Bailey, Landon D.

Mark III Construction, Inc.’s (“Mark III”) Motion to compel Defendants Div 15 Tech (“Div 15”) and Great American Insurance Company (“GAI”) to comply with their agreement to produce documents (Civ. Proc. Code § 2031.320) is unopposed and is granted. In GAI and Div. 15’s prior discovery responses, they agreed to produce certain documents even though they had asserted boiler plate objections. Mark III is entitled

to the documents that defendants previously agreed to produce, and those documents shall be produced without objections on or before January 22, 2018.

Mark III’s Motion to compel GAI to serve further verified responses to Requests for Admissions, Form Interrogatories, and Special Interrogatories is unopposed and is granted. Mark III has addressed each of the boilerplate objections that were asserted in the earlier responses. GAI and Div 15 are ordered to serve further verified responses, without objections, to all discovery requests set forth in Mark III’s Separate Statement, on or before January 22, 2018.

Mark III’s Motion for Monetary Sanctions against Div 15 and GAI for having to make this motion is denied because the motion was not opposed. Although CRC 3.1348(a) purports to authorize sanctions if a motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery (CCP 2030.290(c), 2031.300(c)) authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. Trans-Action Commercial Investors, Ltd. v Firmaterr Inc. (1997) 60 Cal.App.4th 352, 355. However, repeated conduct of failing to comply with discovery obligations may lead the Court to find an abuse of the discovery process and award sanctions on that basis. Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal. App. 3d 481.

Mark III’s request for monetary sanctions pursuant to CCP 2025.430 in the amount of $937.50 for defendants cancelling a deposition they had noticed without informing other counsel is unopposed and is granted.

On November 9, 2017, counsel for Div 15 and GAI served a Notice of

Deposition of Todd Alverson, a former employee of Mark III who now works for Div 15. The Notice of Deposition of Todd Alverson indicated that Div 15 would take the deposition on November 27, 2017 at 1:30 p.m. at 3437 Fitzgerald Road in Rancho Cordova, California, the address where Div 15 is located. On Wednesday, November 22, 2017, Plaintiff’s counsel Landon D. Bailey’s colleague, Tyson Shower, sent an email to counsel for Div 15 to confirm that Div 15 intended to notice a deposition of its own employee, and to confirm that the deposition would go forward on November 27, 2017, as noticed by Div 15. (Ex. O Bailey Decl.) Neither Mr. Shower nor Mr. Bailey received any response from Div 15’s counsel to this email, nor did counsel for Div 15 respond to any other attempts from our office to confirm or disconfirm that this deposition would go forward as noticed. Counsel Bailey spent 2 1/2 hours preparing for the deposition of Todd Alverson and driving to the address indicated in the Notice of Deposition of Todd Alverson. Once there, Bailey encountered the deponent, Todd Alverson, who told Bailey that he had been informed that the deposition had been postponed until December 17. In Bailey’s presence, Mr. Alverson attempted to contact Div 15’s counsel by phone at that time, but his call was not answered.

Mark III is entitled to monetary sanctions pursuant to CCP §2025.430 for the time spent in preparing for and traveling to the deposition at which defendant failed to proceed. Counsel spent 2.5 hours preparing for the deposition of Mr. Todd Alverson and transporting himself to and from the location where counsel for Div 15 noticed Mr. Alverson’s deposition. The party noticing and failing to proceed with the deposition, Div. 15 is ordered to pay reasonable attorneys fees to Mark II in the amount of $937.50 (2.5 x $375)