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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Michael Hammer v. Alexander Mertens

Case No: 17CV03315
Hearing Date: Mon Jan 08, 2018 9:30

Nature of Proceedings: Motion to Compel


Michael Hammer v. Alexander Mertens, #17CV03315, Judge Sterne


Hearing Date:                January 8, 2018


Matter:                          Motion to Compel Attendance at Deposition



For Plaintiff: Jeff Katofsky, Michael Leff (Sherman Oaks)

For Defendant: Eric D. Ridley (Port Hueneme)


Tentative Ruling: The court grants plaintiff Michael Hammer’s motion to compel attendance at deposition and orders defendant Alexander Mertens to appear at a deposition at a time and place to be determined at the hearing. The court denies the request for a monetary sanction.


Background: This is an action on a promissory note. Plaintiff is Michael Hammer and defendant is Alexander Mertens. On October 2, 2017, the court overruled defendant’s demurrer to the complaint based on his discharge in bankruptcy. Defendant answered the complaint on October 12 and amended that answer on November 13. His amended answer includes the affirmative defense of the discharge in bankruptcy. MSC is scheduled for March 9 and trial for April 16, 2018.


Motion: Plaintiff moves to compel defendant to attend his deposition. Plaintiff says that defendant failed to appear for his properly noticed deposition, refused to proceed with it by steadfastly claiming that this court has no jurisdiction over this matter and no authority to order defendant to do anything, and refused to provide reasonable alternative dates for his deposition. Plaintiff seeks a monetary sanction in the amount of $2,685. Defendant opposes the motion.


a.  Facts: On October 23, 2017, plaintiff issued a notice of taking defendant’s deposition on November 17 at 10:00 a.m. There is a proof of service of the notice by mail on October 23.


On November 17, at 10:15 a.m., counsel for plaintiff, Michael Leff, called defendant’s counsel, Eric Ridley, inquiring about defendant’s intention to attend the deposition. Ridley says that, prior to that call, he had received no notice regarding a deposition. At 10:22 a.m., Ridley wrote Leff an email, thanking him for the call, reiterating that he had not received notice. Ridley mentioned that he had requested that Leff’s co-counsel, Jeff Katofsky, agree to electronic service but Katofsky had not responded. Ridley wrote: “Nonetheless. I will be happy to make Mr. Mertens available for a reasonably set deposition, subject to my calendar. Notice of my unavailability is attached for your reference.”


At 11:32 a.m., Katofsky sent an email stating the notice was properly served, he expected Ridley to pay the $175 court reporter charge, he would take the deposition on November 21, and “consider this your notice.” Ridley wrote back that afternoon stating his position that all actions were void because of the bankruptcy, though he acknowledged that the parties differ in their interpretations of the facts and law.


That is all the communication between counsel before plaintiff filed this motion.


b.  Analysis: “If, after service of a deposition notice, a party to the action …, without having served a valid objection under Section 2025.410, fails to appear for examination…, the party giving the notice may move for an order compelling the deponent’s attendance and testimony….” CCP § 2025.450(a). “The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition…, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” CCP § 2025.450(b)(2).


Plaintiff has taken the latter approach, a declaration stating that counsel contacted defendant’s counsel to inquire about the nonappearance. The court does not believe that approach alleviates the requirement to make a reasonable and good faith attempt at an informal resolution of the issue presented by the motion. CCP § 2016.040. “A reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” Townsend v. Superior Court, 61 Cal.App.4th 1431, 1439 (1998).


Plaintiff states that the motion was necessitated by defendant’s ongoing position that this action should be stayed. But it was not. It is true that defendant’s counsel takes that position, but he made clear that his client would attend a properly noticed deposition. Plaintiff ignored this offer, other than to unilaterally notice a deposition by email on four days notice.


Plaintiff insists that service is complete upon deposit in the mail and, when there are competing declarations, the court should find proper service. But that misses the point that there is no showing that the motion was warranted. Plaintiff never asked what would be a good time for a deposition and then either gotten an agreement for that date or sent a notice with that date.


c.  Order: The court does not want to delay matters and, therefore, the court grants the motion and orders defendant Alexander Mertens to appear at a deposition at a time and place to be determined at the hearing.


When a court grants a motion to compel a deposition, it shall impose a monetary sanction “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.” CCP § 2025.450(g)(1). Because the correspondence between counsel reveals that the motion was not necessary, the court finds imposition of a sanction unjust and denies the request for a monetary sanction.

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