ATI RESTORATION, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs HERNANDEZ, et al.

24CV008800: ATI RESTORATION, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs HERNANDEZ, et al. 02/04/2025 Hearing on Motion for Order Compelling Plaintiff to Attend and Testify at Deposition and Produce Documents and Electronically Stored Information in Department 54

Tentative Ruling

Defendant Dry Creek Constr’s (“Dry Creek”) motion to compel plaintiff ATI Restoration, LLC (“ATI”) to produce its person most knowledgeable (“PMK”) for deposition is ruled upon as follows.

On September 2, 2024, Dry Creek served a deposition notice for the deposition of ATI’s PMK to take place on October 9, 2024. (Declaration of Gary W. Gorski (“Gorski Decl.”) ¶¶ 2, 4, Ex. 1.) The deposition notice contains 233 topics of examination and 65 document requests.

ATI electronically served objections on October 3, 2024. Dry Creek contends these objections were untimely because, under Code of Civil Procedure sections 1010.6 and 1013, electronic service extends the effective date by two court days, making the objections effectively served on October 7th, only two days prior to the deposition. Yet, Code of Civil Procedure section 2025.410(b) requires objections served three calendar days before a deposition to be personally served. Thus, Dry Creek contends ATI has waived any basis to object and moves to compel.

Further, one day prior to the deposition, on October 8, 2024, ATI filed a motion for a protective order, which is being heard concurrently with this motion. Dry Creek spends considerable space in its moving papers with respect to the propriety of the motion for protective order, an argument which is not relevant to this motion. Any arguments regarding the motion for protective order are more appropriately addressed in the Court’s concurrent ruling on that motion.

Similarly, in opposition to this motion, ATI argues, in part, that this motion should be denied because Dry Creek “will have adequate opportunity to bring all of its arguments as to why the 233 PMK topics and categories are warranted and whether good cause was shown in its opposition to Plaintiff’s Motion for a Protective Order.” (Opposition at 5:20-22.) This argument is irrelevant to the legal standard applicable to this motion, which is governed by Code of Civil Procedure section 2025.450.

Section 2025.450(a) provides:

“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

24CV008800: ATI RESTORATION, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs HERNANDEZ, et al. 02/04/2025 Hearing on Motion for Order Compelling Plaintiff to Attend and Testify at Deposition and Produce Documents and Electronically Stored Information in Department 54

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 for 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.”

ATI’s remaining opposition arguments are that the motion should be denied because Dry Creek failed to meet and confer in good faith and because Dry Creek failed to file a separate statement.

ATI argues Dry Creek brought this motion less than a week after ATI’s counsel “again attempted to initiate meet and confer efforts regarding the deposition of ATI’s PMK by telephone.” (Opposition at 6:20-22.) In support, ATI’s counsel declares that on November 18, 2024, he left a message for Dry Creek’s counsel in order to meet and confer regarding the deposition. (Declaration of David B. Witkin (“Witkin Decl.”) ¶ 5, Ex. A.) While this is true, the meet-and-confer record also evidences that Dry Creek’s counsel responded on December 4, 2024, that he has no records of any calls from ATI’s counsel since October 8, 2024. (Ibid.)

ATI’s argument also disregards the letters sent by Dry Creek’s counsel on September 21, October 3, October 4, and November 7, 2024, regarding the deposition, as well as an email dated October 8. (Gorski Decl. ¶¶ 5, 7, Exhs. 2, 5.) The letters from Dry Creek attempt to reach a resolution, including by limiting the areas of inquiry to 54 topics to reduce the burden. These communications reflect a good faith attempt to resolve the issues surrounding the deposition even if ATI’s counsel left a single voicemail for Dry Creek’s counsel on November 18, 2024.

The Court is also not persuaded that a separate statement was required for this motion, but even if one was required, the Court in its discretion elects not to deny the motion on this basis. ATI’s PMK has not yet appeared for deposition and therefore, not yet refused to produce documents at deposition pursuant to the document requests. Thus, this dispute is not yet ripe for resolution and can be raised if ATI refuses to produce documents at deposition.

To the extent Dry Creek contends ATI has waived all objections to the deposition, the Court also disagrees. Code of Civil Procedure section 2025.410(a) provides, “Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled.” Thus, a failure to serve a written objection pursuant to section 2025.410 only waives objections to errors or irregularities.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV008800: ATI RESTORATION, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs HERNANDEZ, et al. 02/04/2025 Hearing on Motion for Order Compelling Plaintiff to Attend and Testify at Deposition and Produce Documents and Electronically Stored Information in Department 54

Dry Creek presents no legal authority that ATI’s untimely objections also constitutes a waiver of substantive objections to the topics of examination and document requests. Accordingly, the Court concludes only that ATI has waived any objections to an error or irregularity in the deposition notice.

ATI raises no other argument in opposition to producing a PMK for deposition. Accordingly, the Court concludes ATI’s PMK has failed to appear for deposition without having served a valid objection. Dry Creek’s motion to compel ATI to produce its PMK for deposition is, therefore, GRANTED. The deposition shall take place on or before March 31, 2025, or a later date if mutually agreed upon by the parties in writing.

To the extent Dry Creek seeks to compel the production of documents at the deposition, the request is DENIED for the reasons discussed above.

Dry Creek’s request for monetary sanctions against ATI is DENIED because the request is not supported in counsel’s declaration, which only discusses the amount of time spent preparing the 10 discovery motions previously heard by the Court on January 8, 2025, wherein counsel purports to divide the 80 hours he spent on those motions by 10. There is no attestation as to how much was spent on this motion, which was filed a month after the other 10 discovery motions, nor is there any supporting declaration as to the claimed court reporter fees for the deposition.

The minute order is effective immediately. No formal order pursuant to California Rules of Court, Rule 3.1312, or further notice is required.

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure 367.75. Although remote participation is not required, the Court will

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV008800: ATI RESTORATION, LLC, A DELAWARE LIMITED LIABILITY COMPANY vs HERNANDEZ, et al. 02/04/2025 Hearing on Motion for Order Compelling Plaintiff to Attend and Testify at Deposition and Produce Documents and Electronically Stored Information in Department 54

presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.