M. David Jester et al v. Matt Ospeck et al

(§ 2033.280, subds. (a)-(b).) “The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (§ 2033.280, subd. (c).)

Here, Plaintiffs acknowledge in Reply that, subsequent to their filing of the instant motion, Defendant served responses to the Request for Admissions. Although Mr. Ospeck did not provide the Court a copy of his responses, based on information contained in Reply, the Court finds the responses to be in substantial compliance with Code of Civil Procedure section 2033.220. Thus, the Court is not compelled to order that the truth of the matters specified in the RFAs are deemed admitted. (See CCP § 2033.280, subd. (c).)

Based on the foregoing, Plaintiffs’ motion to deem admitted the matters specified in the Request for Admission s is DENIED.

The Court “shall impose a monetary sanction” against a party whose failure to timely respond to requests for admissions forces the propounding party to move under Code of Civil Procedure section 2033.280, subdivision (b). (Stove v. Bruntz (2017) 12 Cal.App.5th 19, 31-32.) The Court has reviewed the Declaration of Lawrence Brocchini and finds the hours spent on the instant motion and hourly rate of counsel and his paralegal to be reasonable and in line with the fees charged by local counsel. Therefore, the Court awards Plaintiffs $1,962.50 in sanctions.

[2] MOTION TO INCREASE TIME LIMIT FOR DEPOSITION TO COMPEL DISCOVERY FROM DEFENDANT MATTHEW OSPECK

TENTATIVE RULING: The Motion to extend, by four hours, the deposition of Mr. Ospeck is GRANTED. The Motion for an order compelling Mr. Ospeck to produce bank records and tax returns is DENIED.

Plaintiffs 3840 Stonebridge, LLC and M. David Jester move, pursuant to California Code of Civil Procedure 2025.290, for an order permitting the deposition examination of Ospeck to exceed the seven-hour limit.

Plaintiffs also move, pursuant to Code of Civil Procedure section 2031.320, for an order compelling Mr. Ospeck to produce “banking statements and tax returns.” (Notice of Motion at 1:20-22.) “This motion is made on the grounds that Ospeck has agreed in his response to Plaintiffs’ demand to make such production, but he failed to provide such production of all responsive documents within his possession, custody, and control.” (Id. at 22-24.)

A. PRELIMINARY MATTERS

“The court lacks jurisdiction to rule on a motion that has not been properly noticed for hearing on the date in question.” (Diaz v. Prof. Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1204-05.) The proof on file indicates that Notice of Hearing was served by mail and electronically on Mr. Ospeck on May 7, 2026.

May 25, 2026, was a Court Holiday. Thus, the last day to provide notice, by mail from within California, of the instant hearing was May 6, 2026. (See Code Civ. Proc. §§1005, subd. (b) [“all moving and supporting papers shall be served and filed at least 16 court days before the hearing” and “if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days . . .”].)

Mr. Ospeck is a self-represented party. A self-represented party may only be served electronically by consent. (See Code Civ. Proc., § 1010.6, subd. (c).) The Court can find no evidence in the file that Mr. Ospeck has consented to service by electronic means. (See id. at subd. (c)(3).)

Plaintiff, therefore, failed to provide adequate notice of the hearing date.

The last day to file an opposition to the instant motion was May 20, 2026. (See Code Civ. Proc., § 1005, subd. (b).) On May 27, 2026, Mr. Ospeck filed his Opposition. Mr. Ospeck did not, through the opposition, object to the notice defect.

“It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697, quoting Tate v. Super. Ct. (1975) 45 Cal.App.3d 925, 930.)

If the Court declines to consider Mr. Opeck’s late-filed Opposition, then it is without jurisdiction to consider the motion at the noticed hearing. Plaintiffs would be required to renotice the motion for a future date, and Mr. Ospeck’s time for filing an Opposition would run anew.

The Court finds that judicial economy is served by considering the Opposition filed May 27, 2026. The Court recognizes, however, that doing so may prejudice Plaintiffs in that they have not been given a full opportunity to file a substantive Reply brief. Plaintiffs may request additional time to file a Reply brief by requesting oral argument, pursuant to Local Rule 2.9, and presenting the request at hearing on the matter.

B. LEGAL ANALYSIS

1. Extension of Time to Depose Mr. Ospeck

With exceptions having no apparent relevance here, “a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony. The 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.” (Code Civ. Proc., § 2025.290, subd. (a).)

Specifically, Plaintiffs urge that “the Court should permit the deposition examination of Ospeck to exceed the seven-hour limit set forth in CCP § 2025.290 and should allow an additional four hours.” (Support Memorandum at 3:12-14.)

Mr. Ospeck contends that “[Plaintiffs’] inability to complete every desired line of questioning resulted from their own inefficient use of time, not from any obstruction by Defendant.” (Opposition at 3:9-11.) He fails, however, to direct the Court to any portion of his deposition transcript in support of the contention. (See Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal. App. 4th 927, 934 (Quantum Cooking) [“Rules of Court rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide”].)

Mr. Ospeck next contends that “[d]epositions are inherently stressful and burdensome, particularly for self-represented parties.” (Opposition at 4:8-9.) The Court acknowledges that depositions are generally stressful and burdensome regardless of whether or not a witness is represented by counsel. However, the stress and burden of litigation does not constitute prejudice. Moreover, “When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys.” (Co. of Orange v. Smith (2005) 132 Cal.App. 1434, 1444.)

The Court finds, from the evidence presented, that the complexity of the issues involved in the litigation, and Mr. Ospeck’s central role in the events alleged through the operative complaint, support Plaintiffs’ argument that four hours of additional time is needed to fairly examine Mr. Ospeck by deposition.

2. Motion to Compel Production of Documents

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.”(Code Civ. Proc., § 2031.320, subd. (a).)

Plaintiffs assert that “[i]n response to Plaintiffs’ RFP demanding production of Ospeck’s personal bank statements and personal tax returns from January 1, 2019 to the present, Ospeck, through counsel, agreed to make such production. However, Ospeck has produced bank statements however, to date, you only produced statements from 5/31/2021 through 2/29/2024 but nothing before or after those dates [sic]. Additionally, he produced tax returns only for 2020 and 2021, but nothing for 2019 or 2022-2024. Accordingly, the Court should order production of such documents.” (Support Memorandum at 13:25-14:3.)

First, Plaintiffs fail to support the assertions by citation to evidence. The Court notes that Mr. Ospecks’ responses to the subject discovery requests are included among the 559-page Declaration of Lawrence Brocchini filed in support of the Motion. (See id. at ¶ 14.) However, it is not the Court’s obligation to pour over the exhibits looking for evidence tending to support

Plaintiffs’ assertion that it requested the bank statements and tax returns sought by the instant motion. (See Quantum Cooking, supra, 197 Cal.App.4th 927, 934 (Quantum Cooking) [“Rules of Court rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide”].)

Second, there appears to be no evidence tending to show that the specific documents that Plaintiffs seek by the instant Motion are in Mr. Ospeck’s possession, custody, or control. In this context, Ospeck contends, through the Opposition, that he “has already produced documents within his possession, custody, and control.” (Id. at 4:18-19.)

Based on the foregoing, Plaintiffs’ motion for an order compelling Mr. Ospeck to produce bank statements and tax returns is DENIED.

PROBATE CALENDAR – Hon. Joseph J. Solga, Dept. B (Historic Courthouse) at 8:30 a.m.

Estate of Eleazar Ramirez 23PR000319

PETITION FOR SECOND AMENDED ORDER FOR FINAL DISTRIBUTION; CONFIRMATION OF DISTRIBUTION OF OMITTED ASSET PURSUANT TO OMNIBUS CLAUSE; AND RECOGNITION OF ASSIGNMENT OF DISTRIBUTABLE INTEREST

TENTATIVE RULING: The petition is GRANTED.

Conservatorship of Arturo Manuel Cruz 25PR000053

REVIEW – 1ST YEAR

TENTATIVE RULING: After a review of the matter, the Court finds the Conservators are acting in the best interest of the Conservatee. Thus, the matter is set for a Review – Biennial hearing in two years, on May 05, 2028, at 8:30 a.m. in Dept. B. The Court Investigator shall prepare a biennial investigator report for the next hearing date. The Clerk is directed to send notice to the parties.

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