*1 On January 7, 2022, Plaintiffs Santa Cerritos, Inc., Santa Mix, In., and Saint Pedro, Inc. (collectively, “Plaintiffs”) filed a civil complaint in this Court against Michael Penrod (“Penrod”) and CMC Mechanical, LLC (collectively, “Defendants”) based on diversity jurisdiction. Dkt. 1. On April 31, 2022, Plaintiffs filed the operative First Amended Complaint against Defendants, alleging claims for breach of oral contract, disgorgement of compensation, and conversion, arising from alleged failures by Defendants to perform under an oral agreement to complete construction improvements at three commercial properties. Dkt. 22. After several extensions, the operative Scheduling Order sets a fact discovery cutoff of May 10, 2023. Dkt. 44.

On April 13, 2023, Plaintiffs filed a Motion to Compel Penrod's Deposition, with a request for $26,537.70 in monetary sanctions (Dkt. 56 at 1-3, “Motion”), a supporting Local Rule 37-2.2 Joint Stipulation (Dkt. 56 at 4-14, “Joint Stipulation” or “Jt. Stip.”) and supporting evidence (Dkt. 56-1 to 56-24), set for hearing on May 4, 2023, before the assigned magistrate judge. Neither party filed a Local Rule 37-2.3 supplemental memorandum within the time allotted. As a result, the Motion is now fully briefed. The Count finds the Motion is appropriate for decision without oral argument and vacates the hearings set for May 4, 2023. See Fed. R. Civ. P. 78(b); Local Rule 7-15. The Court now rules as follows.

A. Relevance for Discovery Purposes

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. (“Rule”) 26(b)(1). Relevance under Rule 26(b)(1) is defined broadly. See Snipes v. United States, 334 F.R.D. 548, 550 (N.D. Cal. 2020); V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019), aff'd sub nom. V5 Techs., LLC v. Switch, LTD., 2020 WL 1042515 (D. Nev. Mar. 3, 2020) (noting that relevance for discovery purposes remains broad even after the 2015 amendments of the Federal Rules of Civil Procedure). Moreover, “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Rule 26(b)(1). “Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citations omitted).

Although relevance for discovery purposes is defined very broadly, it is not without boundaries. See Rule 26(b)(2); see, e.g., Rivera v. NIBCO, 364 F.3d 1057, 1072 (9th Cir. 2004) (“District courts need not condone the use of discovery to engage in fishing expeditions.” (internal quotation marks and citations omitted)); Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006) (citing Hickman v. Taylor, 329 U.S. 495, 507 (1947)). District courts have broad discretion in determining relevancy for discovery purposes. Mfg. Automation & Software Sys., Inc. v. Hughes, 2017 WL 5641120, at *3 (C.D. Cal. Sept. 21, 2017) (citing Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005)).

B. Depositions of Parties

*2 Rule 30 provides, in part, that “[a] party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2).” Rule 30(a)(1). “A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent's name and address.” Rule 30(b)(1). “No subpoena is needed. The only requirement is that the party be ‘served with proper notice’ of the deposition beforehand.” Sali v. Corona Reg'l Med. Ctr., 884 F.3d 1218, 1222 (9th Cir. 2018) (quoting Rule 37(d)(1)(A)(i)); see also Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1158 (9th Cir. 2010) (“If a person is a party, a simple notice of deposition is sufficient to compel attendance, while a non-party's attendance can be compelled only by subpoena.”). “Put simply and clearly, absent agreement, a party who for one reason or another does not wish to comply with a notice of deposition must seek a protective order.” New England Carpenters Health Benefits Fund v. First DataBank, Inc., 242 F.R.D. 164, 165–66 (D. Mass. 2007) (footnotes omitted).

C. Motions to Compel

A propounding party may move for an order compelling an answer to questions at a deposition if the deponent improperly fails to answer. See Rule 37(a)(3)(B)(i). An evasive or incomplete answer or response is treated as a failure to answer or respond. Rule 37(a)(4). Further, a motion to compel, and potentially a motion for payment of reasonable expenses, is appropriate when a party-deponent fails to attend a duly noticed deposition. See, e.g., Nationstar Mortg. LLC v. Flamingo Trails No. 7 Landscape Maint. Ass'n, 316 F.R.D. 327, 331–34 (D. Nev. 2016) (granting motion to compel Rule 30(b)(6) deposition); Erichsen v. County of Orange,, 2016 WL 6921610, at *5-8 (C.D. Cal. Mar. 31, 2016) (granting motion to compel plaintiffs' deposition attendance and Rule 37(d) motion for sanctions based on plaintiffs' failure to appear for noticed depositions).

Regarding motions to compel further responses to discovery in general, “[u]pon a motion to compel discovery, the movant has the initial burden of demonstrating relevance.” United States v. McGraw–Hill Cos., 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014) (citations and internal quotation marks omitted). Once the minimal showing of relevance is made, “[t]he party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002); see also Hsingching Hsu v. Puma Biotechnology, Inc., 2018 WL 4951918, at *4 (C.D. Cal. June 27, 2018) (“The party opposing discovery is ‘required to carry a heavy burden of showing’ why discovery should be denied.” (quoting Reece v. Basi, 2014 WL 2565986, at *2 (E.D. Cal. June 6, 2014))); Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998).

Further, objections asserted in discovery responses but not raised in briefing on a discovery motion are also waived. MarketLinx, Inc. v. Indus. Access Inc., 2013 WL 12133884, at *2 (C.D. Cal. Jan. 2, 2013) (noting “objections that were raised in response to a particular discovery request, but were not argued in the [j]oint [s]tipulation, are deemed waived”) (citing Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D. Kan. 1999) (“When ruling upon a motion to compel, the court generally considers those objections which have been timely asserted and relied upon in response to the motion. It generally deems objections initially raised but not relied upon in response to the motion as abandoned.”)).

D. Payment of Expenses Under Rule 37(a)(5)

If a motion to compel discovery responses is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees” unless: (i) the movant filed the motion before making a good faith attempt to resolve the issue without court action; (ii) the opposing party acted with substantial justification; or (iii) other circumstances make such an award unjust. Rule 37(a)(5)(A). As noted, a party's unexcused failure to appear for a duly noticed objection may properly support an award of reasonable attorney's fees in favor of a successful moving party on a motion to compel. See Erichsen, 2016 WL 6921610, at *6-8.

*3 Reasonable attorneys' fees are generally calculated based on the traditional “lodestar” method. See Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). Under the lodestar method, the Court determines a reasonable fee by multiplying “the number of hours reasonably expended on the litigation” by “a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The reasonableness of hours expended depends on the specific circumstances of each case. Camacho, 523 F.3d at 978. A prevailing party in a discovery dispute seeking attorney's fees bears the burden of proving that the fees and costs taxed are reasonably necessary to achieve the result obtained. Laub v. Horbaczewski, 2020 WL 10817057, at *4 (C.D. Cal. Jan. 27, 2020).

The Court “has a great deal of discretion in determining the reasonableness of the fee and, as a general rule, [an appellate court] will defer to its determination ... regarding the reasonableness of the hours claimed.” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010) (citation omitted). In reviewing the hours claimed, the Court may exclude hours related to overstaffing, duplication, and excessiveness, or that are otherwise unnecessary. See, e.g., Hensley, 461 U.S. at 433; see also Cruz v. Alhambra School Dist., 601 F. Supp. 2d 1183, 1191 (C.D. Cal. 2009) (observing “the Court must eliminate from the lodestar time that was unreasonably, unnecessarily, or inefficiently” spent); Aevoe Corp. v. AE Tech. Co., Ltd., 2013 WL 5324787, *5 (D. Nev. Sept. 20, 2013) (“While attorneys and their clients are free to staff matters as they see fit [citation], they are not entitled to recover fees as a sanctions for hours that are deemed to be excessive.”). As noted, Rule 37(a)(5), unlike Rule 37(b)(2), limits any award to the prevailing moving party thereunder to “reasonable expenses incurred in making the motion.”

Here, Plaintiffs assert, and Defendants' counsel does not dispute, that Penrod unilaterally terminated his deposition after less than four hours, agreed to appear to complete the deposition at a later date, and thereafter failed to appear at an agreed-to, duly noticed deposition session and failed to respond to requests to schedule a further date. Jt. Stip. at 9-10, 13-14. Defendants' counsel also does not dispute that Penrod failed to fully produce all documents requested with prior deposition notices and does not offer any defense of the failure, such as any objection to the scope of the requests. Id. at 14.

Plaintiffs have therefore met their burden for the order they seek as it relates to an order compelling Penrod to appear and produce all responsive documents requested in the prior deposition notice(s). Defendants' counsel asserts that they have been unable to communicate with Penrod and have a pending motion to be relieved as counsel for Penrod. However, Plaintiffs have a rapidly approaching discovery cutoff and Penrod, a litigant in federal court who has appeared through counsel, is subject to notice provided to his counsel so long as counsel are counsel of record. As of the date of this Order, counsel for Defendants remain Penrod's counsel.

As to Plaintiffs' request for $26,537.70 in “sanctions,” the request is unreasonable for several reasons. First, as noted, Rule 37(a)(5) limits a prevailing party on a discovery motion to recovering “reasonable expenses incurred in making the motion.” All or almost all of the $26,537.70 in expenses Plaintiffs seek to recover appear to derive from Plaintiff's efforts to depose Penrod. See Dkt. 56-1 (“Counsel Decl.”), ¶ 24 (summarizing $869+$5,571+$2,482+$1,969+$4,530.20+$3,664+$5,653=$24,738.20). The authority cited by Plaintiff in the Motion for its request for sanctions is California Code of Civil Procedure Section 2025.450(g)(1). However, the applicable authority for a discovery “sanction” in federal court, even in an action proceeding under diversity jurisdiction, is Rule 37(a)(5). The Court, under Rule 37(a)(5), finds the expenses incurred by Plaintiffs in attempting to proceed with Penrod's deposition are not recoverable by this Motion.

*4 That leaves $1,799.50, the difference between the excluded $24,738.20 and the $26,537.70 sought. Plaintiffs appear to “round up” to “$1,800.00 in attorneys' fees to date in bringing the Motion.” Counsel Decl., ¶ 25. In support of that figure, Plaintiffs' counsel asserts that counsel's hourly rate is $450 and counsel has spent “33 hours preparing this motion” and expects to spend “an additional 7 hours revieing the opposition, drafting and revising the reply, and preparing for and attending the hearing.” Id.

As an initial matter, it appears that “33 hours” may be a typographical error, as 33 hours at $450 per hour would be $14,850, far in excess of $1,800, and an amount clearly not reasonable for the preparation of a 10-page, largely uncontested Joint Stipulation. Assuming 3.3 hours was intended, the Court finds that 3.3 hours at $450 per hour is reasonable in both time spent and in hourly rate, based on the Court's familiarity with attorney rates in this area and having reviewed the Motion, Joint Stipulation, and exhibits. Thus, the Court finds an award of $450/hour X 3.3 hours=$1,485.00 is reasonable and was actually expended in making the Motion. As now supplemental memoranda were filed, and as the Court rules without having held a hearing, no additional expenses were reasonably incurred. The Court finds that Penrod, through his counsel of record, had an opportunity to be heard on Plaintiffs' request, both in preparing Defendants' portion of the Joint Stipulation and in having an opportunity, albeit unused, to file a supplemental memorandum on the issue. The Court further finds: (i) Plaintiffs attempted in good faith to resolve the issues raised in the Motion before filing the Motion; (ii) Penrod did not act with substantial justification; and (iii) no circumstances here render an award of expenses unjust.

Therefore, the Court awards Plaintiffs $1,485.00 in reasonable expenses incurred in bringing the Motion. The award is made against Penrod personally, not Defendants' counsel, payable by May 10, 2023.

For the foregoing reasons, the Motion (Dkt. 56) is GRANTED, in part, as follows.

Defendant Michael Penrod is ORDERED to:

Penrod is further advised that failure to comply with this Order could result in further sanctions, up to and including “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action,” “prohibiting [Penrod] from supporting or opposing designated claims or defenses, or from introducing designated matters into evidence,” “striking pleadings in whole or in part,” “rendering a default judgment against [Penrod],” and/or “treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.” Rule 37(b)(2)(A). Defendants' counsel are ordered to serve this Order upon Penrod at his last known mailing address, email address, and any other communications means known to Defendants' counsel for Penrod.

IT IS SO ORDERED.