I. INTRODUCTION

*1 Before the Court is “Defendant Sara Rinelli's Motion to Compel Plaintiff RG Abrams Insurance's [Person Most Qualified] Deposition and Production of Documents Puruant [sic] to Rule 34,” filed July 14, 2021 (“Motion”). (Mot., ECF No. 148.) The Motion is filed jointly by Defendant/Counter-Claimant Sara Rinelli (“Rinelli”), on the one hand, and Plaintiffs/Counter-Defendants RG Abrams Insurance (“RG Abrams”) and Robin Goltsman (“Goltsman”) (collectively, “Plaintiffs”), on the other, in the form of a Joint Stipulation as required by Central District of California Local Civil Rule [1] 37-2. (Mot. 3[2].) Through the Motion, Rinelli seeks, and Plaintiffs oppose, an order compelling (1) the deposition of RG Abrams pursuant to Federal Rule of Civil Procedure [3] 30(b)(6), and (2) RG Abrams's production of documents pursuant to Rule 34. (Mot. 11–16, 16–20.) In addition, Rinelli seeks an award of attorneys' fees pursuant to Rule 37(a)(5)(A) in the amount of $6,768.00. (Id. at 20–22.) Defendants oppose this award and, instead, seek an award of attorneys' fees pursuant to rule 37(a)(5)(B) in the amount of $9,112.00. (Id. at 22–30.)

In support of her requests, Rinelli filed the Declaration of Timothy Donahue (“Donahue Declaration”) (Donahue Decl., ECF No. 148-1 at 1–5), and its accompanying Exhibits 1 through 6 (Def.'s Ex. 1 (id. at 6–15); Ex. 2 (id. at 16–50); Ex. 3 (id. at 51–53); Ex. 4 (id. at 54–59); Ex. 5 (id. at 60–68); Ex. 6 (id. at 69–72); Ex. 7 (id. at 73–75)). In support of their opposition, Plaintiffs filed the Declaration of Michael A. Slater (“Slater Declaration”) (Slater Decl., ECF No. 148-2 at 1–7), its accompanying Exhibits A through D (Pls.' Ex. A (id. at 8–12); Ex. B (id. at 13–15); Ex. C (id. at 16–21); Ex. D (id. at 22–25)), and the Declaration of Patricia L. Peden (“Peden Declaration”) (Peden Decl., ECF No. 148-3).

Having read and considered the papers submitted by the parties, the Court finds the Motion suitable for disposition without a hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Accordingly, the hearing set for August 3, 2021 is hereby VACATED and taken off calendar. For the reasons set forth below, Rinelli's Motion is DENIED without prejudice.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Plaintiff's Allegations

This case is proceeding on the basis of Plaintiffs' Complaint, filed February 20, 2020 in the U.S. District Court for the Northern District of California and transferred to the Central District of California on January 12, 2021 (Complaint”). (Compl., ECF No. 1.) The Court need not repeat the allegations of Plaintiffs' Complaint herein as they have been fully set forth across the Court's four previous discovery orders. (ECF Nos. 70 (by U.S. Magistrate Judge Robert M. Illman in the Northern District of California), 128, 134, 146.)

B. The Discovery Dispute

*2 On May 19, 2020, Rinelli noticed the deposition of RG Abrams pursuant to Rule 30(b)(6) (“Notice”). (Def.'s Ex. 1 at 1.) Rinelli appears to unilaterally have set a June 21, 2020 date for the deposition, but offered to change it to a more convenient time. (Id.) The Notice sets forth eight matters upon which examination is requested and lists forty-five documents requests. (Id. at 35–42.) On June 14, 2020, RG Abrams served its objections to the Notice. (Def.'s Ex. 2 at 46–79.) Although the parties exchanged meet-and-confer correspondence related to RG Abrams's objections, their disputes regarding same were not resolved. (Def.'s Exs. 3–7; Pls.' Exs. A–D.) This Motion followed.

III. ANALYSIS

A. The Motion is Denied Without Prejudice as Untimely.

Local Rule 37-3 requires that discovery motions be noticed for hearing “on a regular Motion Day for the appropriate judge” and provide at least twenty-one days' notice. See C.D. Cal. L.R. 37-3. Discovery motions in this matter have been referred to the Magistrate Judge assigned to the case (ECF No. 56)—here, Magistrate Judge Maria A. Audero. Judge Audero's requirements state as follows:

See http://www.cacd.uscourts.gov/honorable-maria-audero).

Here, Rinelli's Motion fails to provide the required twenty-one days' notice. The Motion, setting the hearing for August 3, 2021, was filed on July 14, 2021. (Mot. 1.) This constitutes only twenty days' notice, falling one day short of the requirements of Local Rule 37-3. While the Court would not hesitate to continue the hearing on this Motion to its next regular motion date, such would fall on Tuesday, August 10, 2021, four days after the current discovery cut-off date of August 6, 2021. (ECF No. 107.) Moreover, Rinelli asks the Court to issue an order that contemplates compliance after the discovery cut-off date. (Mot. 34 (requiring RG Abrams to meet-and-confer with Rinelli within seven days after the date of the order to select a deposition date, which would occur within thirty days after the date of the order, and to serve responses to Rinelli's requests for production of documents within fourteen days after the date of the order).)

For these reasons, the Court DENIES the Motion without prejudice to its re-filing in the future should the discovery cut-off date be extended.

B. Rinelli's Request for Attorneys' Fees Is Denied.

Rinelli seeks monetary sanctions pursuant to Rule 37(a)(5)(A). (Mot. 20–22.) Rule 37(a)(5)(A) requires a Court to award the reasonable expenses incurred in the bringing of a discovery motion, including attorneys' fees, where a motion brought pursuant to Rule 37(a) is granted. Fed. R. Civ. P. 37(a)(5)(A). However, Rinelli is not entitled to monetary sanctions pursuant to Rule 37(a)(5)(A) because, as detailed above, the Court denies her Motion. Accordingly, an order granting Rinelli's reasonable expenses in bringing the Motion is not warranted and, as such, Rinelli's request for an award of attorneys' fees under Rule 37(a)(5)(A) is DENIED.

C. RG Abrams's Request for Attorneys' Fees Is Denied.

In addition to opposing Rinelli's sanctions request, Plaintiffs also seek monetary sanctions pursuant to Rule 37(a)(5)(B) should the Motion be denied. (Mot. 25–30.) Where a motion to compel is denied, as is the case here, the court “may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both, to pay the party ... who opposed the motion its reasonable expenses incurred in opposing the motion, including attorneys' fees.” Fed. R. Civ. P. 37(a)(5)(B). Still, a court “must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” (Id.)

*3 Both the Ninth Circuit and the Supreme Court have offered guidance regarding the standard for establishing “substantial justification” sufficient to avoid a discovery sanction. The party contesting the discovery sanction under Rule 37 bears the burden of establishing substantial justification or that other circumstances make an award of expenses unjust. See Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994). In Hyde, the Ninth Circuit stated that “a good faith dispute concerning a discovery question might, in the proper case, constitute ‘substantial justification ....’ ” Id. (citation omitted). The Supreme Court has explained that the standard is “satisfied if there is a ‘genuine dispute’... or ‘if reasonable people could differ as to the appropriateness of the contested action.’ ” Pierce v. Underwood, 487 U.S. 552, 565 (1998) (citations and alterations omitted).

With respect to the required “opportunity to be heard” before sanctions are awarded, the Ninth Circuit has made clear that “the opportunity to submit briefs” satisfies the “opportunity to be heard” requirement. Paladin Assocs. v. Montana Power Co., 328 F.3d 1145, 1164–65 (9th Cir. 2003) (holding that, because the Rule 37 sanctions issues to be resolved were such that an evidentiary hearing would not have aided the decisionmaking process, district court did not abuse its discretion by ruling on the briefing); see also Pac. Harbor Cap., Inc. v. Carnival Airlines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000) (“an opportunity to be heard does not require an oral or evidentiary hearing on the issue.” (citations omitted)); Lynch v. Cassavetes, 2014 U.S. Dist. LEXIS 195015, at *10 (C.D. Cal. Oct. 1, 2014) (finding that an opportunity to be heard is satisfied by an opportunity to respond in writing).[4]

Here, while the Court concludes that the first exception to the sanctions mandate of Rule 37(a)(5)(B) does not apply, it also concludes that the second exception does. As to the first exception, the Court concludes that Rinelli brings the Motion without substantial justification. She noticed the motion with less than the required twenty-one days' notice and set it for hearing on a day other than Judge Audero's regular motion day. Moreover, even if the Court were to sua sponte move the hearing to its next motion date—August 10, 2021—this would not save the Motion because such a hearing would fall outside the August 6, 2021 discovery cut-off date. In addition, Rinelli asks the Court to issue an order on the Motion that contemplates compliance after the discovery cut-off date: meeting and conferring within seven days after the date of the order to select a deposition date, which would not occur until thirty days after the date of the order, and serving responses to Rinelli's document requests within fourteen days after the date of the order. (Mot. 34.) The Court finds that no reasonable person would consider such a filing appropriate.

Nevertheless, despite the lack of substantial justification for the filing of an untimely motion, the Court finds that the circumstances here would make an award of expenses unjust. While there is no doubt that Rinelli's Motion has caused Plaintiffs to expend resources and money to defend it, there is no evidence that Plaintiffs met and conferred with Rinelli regarding the untimeliness of the Motion. Plaintiffs received Rinelli's portion of the Joint Stipulation on July 7, 2021. (Mot. 7 at n. 5; 8–10.) At that point, Local Rule 37-2.2 gave them seven days—or until July 14, 2021—in which to provide Rinelli with their portion of the Joint Stipulation. C.D. Cal. L.R. 37-2.2. Thus, unless Plaintiffs provided Rinelli with their portion of the Joint Stipulation early, there was no opportunity for Rinelli to file the Motion by July 13, 2021, the last day on which a Motion could have been filed with twenty-one days' notice of a hearing before the discovery cut-off date. While Rinelli appears to have missed, or affirmatively ignored, these temporal requirements, Plaintiffs—who argue this very point in their opposition to the Motion (Mot. 11)—offer no evidence establishing that they brought the issue to Rinelli's attention before they expended resources on responding to the Motion (see generally Mot.; Pls.' Exs. B–D; Def's Exs. 3–7. On this basis, the Court finds that it would be unjust to award expenses to Plaintiffs under Rule 37(a)(5)(B).[5]

*4 On this basis, RG Abrams's request for an award of attorneys' fees under Rule 37(a)(5)(B) is DENIED.

IV. CONCLUSION

For the reasons stated above, the Court ORDERS as follows: