Judge: Anne Hwang, Case: 21STCV13645, Date: 2024-08-02 Tentative Ruling

Case Number: 21STCV13645    Hearing Date: August 2, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

            Plaintiffs Sui Jai Hong and Jie Gao (“Plaintiffs”) move to compel the deposition of Defendant Eshagh Neman (“Defendant”).[1] Plaintiffs also seek monetary sanctions. Defendant opposes and Plaintiffs reply.

LEGAL STANDARD

“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, or to proceed with it, or to produce for inspection any document . . . 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 . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

“A motion under subdivision (a) [above] shall comply with both of the following:

1. The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

2. The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

(Code Civ. Proc., § 2025.450, subd. (b).)

If a motion is granted, the court shall impose a monetary sanction in favor of that party unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the sanction unjust. (Code Civ. Proc. § 2025.450 (g).)

MEET AND CONFER

The Declaration of Bobby Waltman, Plaintiffs’ counsel, does not explicitly state facts of a meet and confer but does attach email correspondence on April 26, 2024 discussing Defendant’s deposition. (Waltman Decl. ¶ 11, Exh. I.)  

DISCUSSION

Plaintiffs allege they were injured on premises owned/controlled by Defendant. (Complaint ¶ 9-10.)

Plaintiffs first served a deposition notice on Defendant on March 17, 2022. Plaintiffs then sent subsequent notices; each time, Defendant timely served an objection. On March 29, 2024, Plaintiffs served a fourth amended deposition notice, setting a deposition for May 8, 2024. (Waltman Decl., Exh. H.) On May 7, 2024, Defendant failed to appear, and a certificate of non-appearance was obtained. (Id., Exh. K.) Plaintiffs contend that co-defendant Simin Neman is Defendant’s wife; her deposition was scheduled for May 7, 2024. They further contend that Defendants’ counsel produced Simin for deposition on May 8, 2024, and thus confused the two defendants. As a result, the Certificate of Non-appearance on May 7, 2024 only mentions defendant Simin Neman, but in actuality was referring to Defendant. In opposition, Defendant does not dispute this account.  

Defendant asserts he is 89 years old, suffering from declining mental health, and cannot sit for a deposition until he has been evaluated. (Opp., 1.) Though Defendant repeats this in opposition to this motion, no motion for a protective order has been filed.[2] Additionally, Defendant does not produce evidence that he timely objected to the March 29, 2024 deposition notice.

Therefore, seeing as Defendant did not appear for a noticed deposition, and there is no evidence he timely objected, the motion to compel the deposition of Eshagh Neman is granted.

Plaintiffs request $3,520 in monetary sanctions against Defendant and his counsel of record, representing a $350 hourly rate, $720.50 for the reporter’s fee, and $1,400 for the Farsi interpreter. (Waltman Decl. ¶ 16, Exh. L, M.) The Court finds sanctions are warranted for the costs incurred by the non-appearance and awards sanctions in the amount of $2,470.50 (1 hour of attorney time, the court reporter fee and interpreter fees). Although counsel for Defendant advised that Defendant was unable to testify, no protective order was sought and no valid objection was served, thereby necessitating this motion. (See Waltman Decl. ¶ 10-11.)

CONCLUSION AND ORDER

Accordingly, Plaintiffs’ motion to compel Defendant Eshagh Neman to attend his deposition is GRANTED. Defendant Eshagh Neman shall appear within 30 days’ notice of this order for a deposition.

The Court further grants the request for monetary sanctions against Defendant and Defendant’s counsel of record, jointly and severally, in the reduced amount of $2,470.50. Said monetary sanctions shall be paid to counsel for Plaintiffs within 30 days’ notice of this order.

Plaintiffs shall provide notice of the Court’s ruling and file a proof of service of such.