Bria Hebert vs. Bonnie Adams

Motion to Compel Deposition (Oral or Written)

Cal. Super. - 4th Dist.May 23, 2017

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEX OPUS Mohammed K. Ghods (SBN 144616) mghods@lexopusfirm.com Jeremy A. Rhyne (SBN 217378) irhyne@lexopusfirm.com Sandra J. Vivonia (SBN 175930) svivonia@lexopusfirm.com 2100 N. Broadway, Suite 210 Santa Ana, CA 92706 Telephone: (714) 558-8580 Facsimile: (714) 558-8579 Attorneysfor Plaintiff BRIA HEBERT SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE BRIA HEBERT,an individual, Plaintiff, V. BONNIE ADAMS,an individual, TROTT USA, an unknown entity, Does 1-25. Defendants. Case No. 30-2017-00922018 Assigned for All Purposes to Judge Derek Hunt NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA [Filed concurrently with Declaration of Jeremy A. Rhyne; and [Proposed] Order] Date: January 2,2017 Time: 8:30 a.m. Dept.: C23 [RESERVATION NO. 72710304] Complaint Filed: May 23, 2017 Trial Date: September 10, 2018 1 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICEthat on January 2, 2017 at 8:30 a.m., or as soon thereafter as the matter may be heard, in Department C23 of this Court, located at 700 W. Civic Center Drive, Santa Ana, California, 92701, Plaintiff Bria Hebert (“Plaintiff”) will and hereby does move for a motion to compel Defendant Trott USA’s Custodian of Records to appear for its properly noticed deposition. Pursuantto the notice requirements set forth in Code of Civil Procedures sections 2023.010 et. seq., Plaintiff also is requesting that the Court issue monetary sanctions against Defendant and Defendant’s counsel of record, Jamison E. Power and Samuel Q. Schleier, and their law firm Buchalter APC. Because Defendant and its counsel’s conduct necessitated this motion, Plaintiff is entitled to reimbursement for the costs and fees associated with this motion in the amount of $3,560. Such amount represents the sum of $3,500 for the more than 10 hours spent in preparing this motion, the time that is anticipated to be spent reviewing Defendant’s opposition and preparing a reply brief, and the time anticipated to be spent preparing for and attending the hearing on the motion, plus $60 in court filing fees. This motion is made on the grounds that Defendant Trott USA’s Custodian of Records has wrongfully failed and refused to appearforits properly noticed deposition, despite Plaintiff’s numerous attempts to resolve the dispute without court intervention, and despite months of meeting and conferring. This motion is based upon this Notice of Motion, the attached Memorandum of Points and Authorities, the Declaration of Jeremy A. Rhyne and the exhibits attached thereto, the records and files herein, and on such argument as may be presented at the hearing on the motion. Dated: December 5, 2017 LEX OPUS By: MOHAMMED K/ GHODS JEREMY A. RHYNE SANDRA J. VIVONIA Attorneys for Plaintiff 2 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff Bria Hebert (“Plaintiff” or “Hebert”) hereby submits the Memorandum of Points and Authorities in support of her Motion to Compel the deposition of Defendant Trott USA’s (“Trott”) Custodian of Records, as follows: I. INTRODUCTION Plaintiff was forced to bring this motion because Defendant has unreasonably refused to produce a witness for a basic custodian of records deposition. As explained below in laborious detail, Plaintiff triedfor nearlyfour months trying to obtain an agreement from Defendant to simply appear at deposition and answer basic questions about its documents. Defendant threw up roadblock after roadblock, first claiming unavailability, then agreeing to produce a witness on a mutually agreeable date, and then after the mutually agreeable date was selected, Defendant sought multiple postponements. Finally, when all of Defendant’s excuses were exhausted, and Defendant reluctantly provided another date for the deposition to take place (December 5), Defendant then manufactured a ridiculous dispute by claiming that certain document requests were objectionable, and that therefore, the deposition could not proceed. Plaintiff bent over backward trying to resolve the dispute but Defendant could not be moved. It became clear that Defendant was dead set on never appearing at the noticed deposition and perhaps counsel was underinstruction to prevent the deposition from occurring at all costs. In response to Defendant’s latest objection that some of the document categories were overreaching, Plaintiff reasonably countered that even if Defendant had objections to some of the document requests, Defendant’s witness should still appear at deposition subject to the objections and submit to an examination regarding the documents’ existence, location, and maintenance even if the documents themselves were not produced at this time. Plaintiff suggested that since Defendant offered December 5 as the date for the deposition, that the deposition should proceed subject to the Defendant's objections, and that any documentissues could be resolved after the deposition. Indeed, Plaintiff pointed out that some ofthe issues may be resolved once the witness answers questions concerning what documents exist because we may learn that there are no documents to fight over, as is sometimes the case. Despite Plaintiff’s suggestion of a reasonable jo] 3 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and customary way to resolve these issues, because Defendant had other plans, Defendant still unreasonably refused to produce a witness, claiming that the deposition notice was somehow ineffective because it believed some of the document categories were objectionable. Setting aside the fact that Defendant’s document objections are completely frivolous’, the bottom line is that there is absolutely no justification for Defendant to staunchly refuse to sit for examination. For this reason, Plaintiff seeks an order compelling Defendant to appear for deposition, and sanctions in the amount of $ 3,560 for the necessity of bringing this motion. II. FACTUAL BACKGROUND Plaintiff filed her complaint on May 23, 2017. See Declaration of Jeremy Rhyne (“Rhyne Decl.”), Par. 2. On August 4, 2017, Defendants demurred to the complaint, and after a hearing on the demurrer, the court sustained the demurrer to the fraud and negligence per se claim, but overruled the demurrer to the negligence and strict liability claims. See Rhyne Decl., Par. 2. Thus, Plaintiff’s claims for negligence and strict liability remain to be litigated. See Rhyne Decl., Par. 2. On August 14, 2017, Plaintiff served a deposition notice for the custodian of records of Defendant Trot, setting the deposition for August 28, 2017. See Rhyne Decl., Par. 3, Ex. A. On August 16, 2017, Defendant served objections to the deposition notice. See Rhyne Decl., Par. 4, Ex. B. The Response and Objections stated that Defendant objected to producing a witness on August 28 because the date was unilaterally selected by Plaintiff’s counsel but clearly stated Defendant “will agree to produce a deponent at a mutually agreeable date and time.” See Rhyne Decl., Par. 4, Ex. B (Response, page 1, lines 26-27). The Response and Objections from Defendant also clearly stated in the objections to the categories of examination that “TROTTUSA will produce a qualified deponentto discuss, generally, its efforts to locate : E.g., Defendant Trott argues Plaintiff's requests for financial documents are objectionable because Trott’s financial documents are confidential and that Trott has a right to financial privacy. When Plaintiff pointed outto Defendant that Trott claims to be a 501¢(3) corporation, and that pursuant to law, such not for profit corporations are understrict obligation to provide all manner of financial information to the public, Defendant pivoted and seized upon anotherfrivolous objection to avoid production and appearance at deposition. It has become very clear,as shown by the four months of needless negotiating over a basic deposition, that Defendant would do anything necessary to avoid this deposition. 4 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 responsive documents.” See Rhyne Decl., Par. 4, Ex. B (e.g., Response and Objections, 4:21-23, 5:5-6). Because Defendant had stated in its 8/16/17 Response and Objection that it would not appear for examination on the noticed, but would appear on another date mutually agreed upon, Plaintiff wrote an email to Defendant on September 14, 2017, asking Defendant and its counsel to select a date to conduct the deposition. See Rhyne Decl., Par. 5, Ex. C. In the email, Plaintiff requested that Defendant and its counsel select one of the following dates to conduct the deposition: 9/26, 9/27, 9/29, 10/2, 10/3, or 10/6. See Rhyne Decl., Par. 5, Ex. C. On September 15, 2017, Defendant responded via email stating that the deposition would be premature, but stated he would be “happy to produce a deponent oncethis case is actually at issue.” See Rhyne Decl., Par. 6, Ex. D. On September 25, 2017, Plaintiff responded via email stating that the deposition was not “premature”, that no rule precluded Plaintiff from taking the deposition, that the demurrer had already been heard and therefore, there was no concern that the parties did not know which claims were at issue. See Rhyne Decl., Par. 7, Ex. E. Further, Plaintiff's email stated that since Defendant had rejected Plaintiff’s offer to select a mutually agreeable date, that Plaintiff was continuing the deposition to October 10, 2017, and that if Defendantfails to appear, a certificate of non-appearance will be taken. See Rhyne Decl., Par. 7, Ex. E. On September 25, 201 7, Defendant responded stating that he was not refusing to produce a witness, and has “never refused to produce a deponent.” See Rhyne Decl., Par. 8, Ex. F. Defendant also stated that he was not available on October 10. See Rhyne Decl., Par. 8, Ex. F. In response, Plaintiff responded via email stating that Defendant should provide an available date for the deposition to take place if he is not available on October 10. See Rhyne Decl., Par. 8, Ex. G. Defendant responded to the email from Mr. Rhyne stating that he would call the following day. See Rhyne Decl., Par. 8. On September 26, 2017, Defendant’s counsel, Mr. Power, called Plaintiff’s counsel, Mr. Rhyne, and agreed to provide available dates for the deposition to take place. See Rhyne Decl., 5 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA 10 1 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 Par. 9. After they talked, Defendant sent a confirming email stating that his client was available for deposition on November 9 or 10, 2017. See Rhyne Decl., Par. 9, Ex. H. On September 26, 2017, as a result of Mr. Power’s confirmation of Defendant’s available dates, Plaintiff re-served a new deposition notice, setting Defendant’s deposition for November 9, 2017. See Rhyne Decl., Par. 10, Ex. L. On September 28, 2017, Plaintiff wrote to Defendant seeking an extension of time to respond to a massive set of written discovery from Defendant. See Rhyne Decl., Par. 11, Ex. J. Plaintiff’s request was sent in part because Plaintiff wanted the benefit of Defendant’s document production (from the deposition) for the preparation of the discovery responses. See Rhyne Decl., Par. 11, Ex. J. In response, on September 29, 2017, via email, Defendant offered to provide the documents by October 16, that Plaintiff would provide discovery responses by 10/23, and that the deposition would proceed on November 9. See Rhyne Decl., Par. 11, Ex. J. On October 2, 2017, Plaintiff responded and accepted this proposal from Defendant. See Rhyne Decl., Par. 11, Ex. J. On October 13, Defendant requested another three days to produce the documents, or until October 19, and offered a corresponding extension to Plaintiff to produce the discovery responses to October 26. See Rhyne Decl., Par. 12, Ex. K. Plaintiff responded by agreeing to the mutual extension of these dates. See Rhyne Decl., Par. 12, Ex. K. The deposition remained on calendar for November 9, 2017. See Rhyne Decl., Par. 12. On October 18, Defendant called Plaintiff and asked for yet another extension of time to produce the documents, this time until October 23, and again, Plaintiff agreed. See Rhyne Decl., Par. 13, Ex. L. Plaintiff received a corresponding extension of time to produce the discovery responses, until October 30. See Rhyne Decl., Par. 13, Ex. L. On October 23, 2017, Defendant submitted a production of documents, which consisted of only 110 pages, much of it duplication. See Rhyne Decl., Par. 14. On October 26, 2017, Plaintiff requested a short extension of time to submit the discovery responses, until November 3rd, and in exchange, Defendant requested another continuance of 6 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 Defendant’s deposition. Ms. Schleier explained that his request to continue the deposition was necessary because ofthe need to review Plaintiff’s document production prior to the deposition date. See Rhyne Decl., Par. 15, Ex. M. As a result, the November 9 deposition was canceled and the parties agreed to select another mutually agreeable date. See Rhyne Decl., Par. 15, Ex. M. On November 6, 2017, Plaintiff wrote to Defendant stating that the discovery responses were served by Plaintiff, and that Plaintiff wanted to get the defendant’s deposition back on calendar, suggesting several dates. See Rhyne Decl., Par. 16, Ex. N. Defendant responded by asking why the deposition was necessary since they provided a custodian’s declaration. See Rhyne Decl., Par. 16, Ex. N. Plaintiff responded that not all of the documents were produced and that Plaintiff was entitled to examine a witness concerning the existence, location and maintenance of the records. See Rhyne Decl., Par. 16, Ex. N. Defendant pushed back suggesting Plaintiff was now not entitled to the deposition, but Plaintiff responded on November 7, asking Defendant to select a date for the examination to take place. See Rhyne Decl., Par. 16, Ex. N. On November 8, in response to Plaintiff’s request that Defendant select a date for the examination to take place, Defendant responded that Plaintiff should set the deposition for December 5, 2017. See Rhyne Decl., Par. 17, Ex. O. Defendant also stated that because the notice seeks documents which were allegedly outside the scope of discovery, that Defendant wanted to meet and confer regarding the document requests on a potential motion for protective order. See Rhyne Decl., Par. 17, Ex. O. Plaintiff responded stating that any objections to the document requests were already noted because Defendant submitted written objections,that the examination should proceed subject to Defendant’s objections, and that the parties can meet and confer after the examination if Plaintiff feels (based on the witness’ testimony) that additional documents should be produced. See Rhyne Decl., Par. 17, Ex. O. On November 8, 2017 and continuing to November 9, 2017, the parties exchanged additional lengthy emails concerning Defendant’s threat of a motion for protective order, the need for a custodian’s deposition, but were unfortunately unable to resolve anything other than agreeing to meet and confer overthe telephone later. See Rhyne Decl., Par. 18, Ex. P. After the 7 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA O o 0 a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dust settled, the December 5, 2017 deposition remained on calendar and the parties agreed to meet and confer on November 17 to discuss the document issues. See Rhyne Decl., Par. 18, Ex. P. On November 17, 2017, Plaintiff’s counsel Jeremy Rhyne and Defendant’s counsel Jamison Power had a lengthy telephonic discussion regarding the document categories in the deposition notice to try to resolve the issues with Defendant’s document production. See Rhyne Decl., Par. 19. The parties discussed document requests 1, 6, 12, 13, and 16-30. See Rhyne Decl., Par. 19. Defendant agreed to think about his position with respect to these categories and respond later to Plaintiff. See Rhyne Decl., Par. 19. Plaintiff again reiterated that the deposition should proceed so that the witness can be examined as to what other documents may be available, and that the objections can be reserved, but that the examination must take place. See Rhyne Decl., Par. 19. The deposition remained set for December 5, and Defendant’s counsel Mr. Power did notstate at any time during that conversation that it would not produce the witness for examination. See Rhyne Decl., Par. 19. On November 28, 2017, the parties met and conferred telephonically concerning Plaintiff’s responses to written discovery,i.e., the parties discussed an issue unrelated to this motion, and also discussed the custodian’s deposition. See Rhyne Decl., Par. 20. On that same date, in an email concerning that unrelated issue, Defendant again requested a postponement of the custodian’s deposition. See Rhyne Decl., Par. 20, Ex. Q. Again, Defendant threatened to bring a motion for a protective order on the grounds that certain document requests were objectionable, namely, Defendant argued that documents regarding Defendant’s financial condition were objectionable — (even though Defendantis a 501¢(3) corporation whose finances are and should be available to the public at all times). See Rhyne Decl., Par. 20, Ex. Q. On November 29, 2017, Defendant personally served “Amended Objections” to the deposition notice, which incorrectly recited the current deposition date as 11/9/17 (a date which had already passed). See Rhyne Decl., Par. 21, Ex. R. On November 29, 2017, Plaintiff responded to Defendant’s email regarding the deposition 8 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 stating that the deposition notice is not defective or improper even ifthere are valid objections to some of the document requests and therefore, the deposition should proceed; and (2) the objections being asserted with respect to Trott’s financial documents are without merit. See Rhyne Decl., Par. 22, Ex. S. Plaintiff's email made clearthat the deposition must proceed on December 5. See Rhyne Decl., Par. 22, Ex. S. On December 1, 2017, Defendant responded to Plaintiff's email stating unequivocally that because Plaintiff refused to serve a new revised deposition notice, that no witness would be produced for the December 5 deposition date — a date which Defendant originally offered to Plaintiff for the deposition to take place. See Rhyne Decl., Par. 23, Ex. T. Later that day, Plaintiff responded and reiterated that the deposition should proceed on the date Defendant gave to Plaintiff, and that the witness can appear subject to the objections to the notice, which is of course a customary way of handling these matters. See Rhyne Decl., Par. 24, Ex. U. And yet again, another of Plaintiff’s counsel (Mr. Rhyne) wrote to Defendant’s counsel on December 4, 2017, asking Defendant to reconsider his position to avoid the necessity of a motion, stating that Defendant can simply appear at deposition subject to the objections to the document requests. See Rhyne Decl., Par. 25, Ex. V. Defendant continued to staunchly refuse this reasonable suggestion, absolutely refused to appear for the deposition that was noticed back in August 2017 (four months before) and left Plaintiff no choice but to file the instant motion. See Rhyne Decl., Par. 26. III. ARGUMENT A. A Proper Deposition Notice Was Served on Defendant Requiring Attendance and Production of Requested Documents. In 1947, the United States Supreme court ruled that the spirit of discovery is violated when attorneys attempt to use discovery tools as tactical weapons (rather than to expose the facts and illuminate the issues) by unnecessary use of defensive weapons or evasive responses. This, according to the United States Supreme Court, results in excessively costly and time-consuming 9 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA N e l o N 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 activities that are disproportionate to the nature of the case, the amount involved, or the issues or values at stake. Hickman v. Taylor (1947) 329 U.S. 495,507. Defendant has done just this by refusing to appear for deposition without justification. Code of Civil Procedure, section 2025.280 providesin pertinent part: (a) The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying. Code of Civil Procedure, section 2025.240 provides in pertinent part: (a) The party who prepares a notice of deposition shall give the notice to every other party who has appeared in the action. The deposition notice, or the accompanying proof of service, shall list all the parties or attorneys for parties on whom it is served. Code of Civil Procedure, section 2025.230 provides: If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those ofits officers, directors, managing agents, employees or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent. Plaintiff served a proper notice for the deposition of the custodian of records of Defendant on August 14, 2017 for the deposition to take place on August 28, 2017. Defendant objected to the date chosen for the deposition, but agreed that a deponent would be produced at a mutually agreeable date and time. See Rhyne Decl., Ex. B. After a lengthy process of meeting and conferring, scheduling and re-scheduling the dates for the depositions on dates convenient to Defendant and its counsel, Defendant finally stated it would appear for deposition on December 5,2017. Shortly before the date for the deposition Defendant selected, however, on November 28,2017, Defendant indicated that the deposition date should be continued again so that the parties could continue to meet and confer regarding whether the deposition was necessary. See Rhyne Decl., Ex. Q. When Plaintiff declined the invitation to continue the deposition any longer, Defendant stated that it would refuse to appear. See Rhyne Decl., Ex. T. Despite efforts to meet 10 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 and confer further, Defendant continues to refuse to appear for deposition. Defendant claimed that it intended to file a motion for a protective order on the day before the deposition was set to proceed, but as of this writing on December 5, 2017, no such motion has been filed. Code of Civil Procedure, section 2025.450 provides in pertinent part: (a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move or an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2)(1) If a motion under subdivision (a) is granted, the court shall impose monetary sanctions under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponentis 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. Defendant has unequivocally stated that it will not appear for its properly noticed deposition. Plaintiff acknowledges that certain objections have been asserted to the document requests contained in the deposition notice, but that does not relieve Defendant from appearing for deposition as noticed. As set forth in the Declaration of Jeremy A. Rhyne filed concurrently herewith, Plaintiff has met and conferred with Defendant for months to resolve this dispute. Unfortunately, even after accommodating Defendant’s multiple requests to continue Defendants deposition, Defendant continues to refuse to allow its custodian of records to be deposed. Plaintiff therefore seeks an order from the Court compelling Defendant’s Custodian of Records to appear forits properly noticed deposition. B. Sanctions Are Warranted Against Defendant For Its Baseless Refusal to Appear for Deposition. To dissuade counsel and parties from engaging in discovery abuse, the courts are granted authority to order sanctions, both monetary and otherwise. Code of Civil Procedure, section 2023.010 provides in pertinent part: 11 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Misuses of the discovery process include, but are not limited to, the following: (d) Failing to respond or to submit to an authorized method of discovery. (e) Making, without substantial justification, an unmeritorious objection to discovery. Code of Civil Procedure, section 2023.030 provides in pertinent part: To the extent authorized by the chapter governing any particular discovery method or any other provision of thistitle, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision ofthistitle, the court shall impose that sanction unlessit finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Plaintiff has met and conferred with Defendant for many months regarding simply taking its properly noticed custodian of records deposition to no avail. Defendant refuses to be deposed without substantial justification. Pursuant to Code of Civil Procedure sections 2023.010 and 2023.030, Plaintiff also is requesting that the Court issue monetary sanctions against Defendant and Defendant’s counsel of record, Jamison E. Power and Samuel Q. Schleier, and their law firm Buchalter APC. The costs associated with Defendant’s refusal to appear for deposition is $3,560. Such amount represents the sum of $3,500 for the more than 10 hours spent in meeting and conferring regarding the refusal to appear for deposition and preparing this motion, the time that is anticipated to be spent reviewing Defendant’s opposition and preparing a reply brief, and the time anticipated to be spent preparing for and attending the hearing on the motion, plus $60 in court filing fees. 11 11 11 1 "1 12 NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA IV. CONCLUSION For the foregoing reasons, Plaintiff Bria Hebert respectfully requests that the Court grant this Motion to Compel the Deposition of Defendant Trott USA’s Custodian of Records and order Defendant and its attorneys to pay Plaintiff sanctions in the amount of $3,560 reflecting the amount of Plaintiff’s reasonable attorneys’ fees and costs incurred as a result of bringing this 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 motion. Dated: December 5, 2017 13 LEX OPUS By: MOHAMME GHODS JEREMY A., E SANDRA J. VIVONIA Attorneys for Plaintiff BRIA HEBERT NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA 10 11 12 14 15 16 17 18 19 20 21 22 24 25 26 27 28 PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of eighteen (18) years and am not a party to the within action. My business address is that of 2100 N. Broadway, Suite 210, Santa Ana, CA 92706. On December 5, 2017, following ordinary business practices, I served a true and correct copy of the foregoing documents entitled: NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF CUSTODIAN OF RECORDS OF DEFENDANT TROTT USA interested parties in this action by sending a true and correct copy of each documentthereof, addressed as follows: Samuel Q. Schleier, Esq. Jamison E. Power, Esq. BUCHALTER 18400 Von Karman Avenue, Suite 800 Irvine, CA 92612-0514 Telephone: 949.760.1121 Fax: 949.720.0182 Email: sschleieri@buchalter.com ipower@buchalter.com Attorneysfor Defendants BONNIEADAMSand TROTT USA XI BY ELECTRONIC MAIL [ONE LEGAL]: I caused the document(s) to be electronically served, via the OneLegal.com system, served on all interested parties in this action. The transmission was reported as complete and without error by OneLegal.com on December 5, 2017 as indicated for service herein. Executed on December 5, 2017 at Santa Ana, California. I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. ROUTE? = N PROOF OF SERVICE