Judge: Anne Hwang, Case: 21STCV21804, Date: 2023-12-13 Tentative Ruling

Case Number: 21STCV21804    Hearing Date: March 14, 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

            On June 10, 2021, Plaintiff Amelia Aguilar (“Plaintiff”) filed a complaint against Defendants La Mexicana Meat Market, North Atlantic Investment Co., LLC, and Does 1 to 20 for negligence and premises liability after allegedly tripping and falling on a mat.   

            Plaintiff now moves to compel the deposition of North Atlantic Investment Co., LLC’s (“Defendant”) president, Moon Y. Kang. Plaintiff also seeks monetary sanctions. Defendant opposes and Plaintiff replies.

LEGAL STANDARD

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party . . . , 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 Krystale L. Rosal shows multiple efforts to contact Defendant’s counsel, through email or voicemail, in order to schedule the subject deposition. (Rosal Decl. ¶ 21, Exh. L.) After Kang did not appear for the deposition, Plaintiff’s counsel requested alternative dates from Defendant. (Id. ¶ 22.) Therefore, the meet and confer requirement has been met.

DISCUSSION

Here, Plaintiff noticed the deposition of Moon Y. Kang (“Kang”) set for August 25, 2023. Defendant objected on the basis that the date was unilaterally set. (Rosal Decl. ¶ 5, Exh. C.) However, when Plaintiff emailed asking for alternative dates, Defendant did not respond. (Id. ¶ 7, Exh. E.) Plaintiff’s counsel emailed multiple times and left voicemails throughout October and November 2023 for dates. (Id. ¶¶ 8-14.) Defendant did not respond. On November 13, 2023, Plaintiff served Defendant with a notice to take Kang’s deposition on December 5, 2023. (Id. ¶ 15, Exh. F.) On November 30, 2023, Defendant served an objection arguing that a subpoena was required, and the witness was unavailable on the date unilaterally set. (Id. ¶ 17, Exh. H.) Plaintiff’s counsel stated she would not take the deposition off calendar until Defendant provided alternative dates. On December 5, 2023, Kang did not appear at the deposition and Plaintiff obtained a certificate of nonappearance. (Id. ¶ 20, Exh. K.) As of the date of filing this motion, Defendant has not provided additional dates. (Id. ¶ 27.)

In opposition, Defendant argues Plaintiff failed to meet and confer, that it served a timely objection, and that the motion is untimely. First, Defendant relies on Code of Civil Procedure section 2025.480(b) to argue that this motion is untimely. However, the motion is brought pursuant to section 2024.450, which does not contain a time requirement. Second, the Court rejects Defendant’s argument that Plaintiff failed to meet and confer. Plaintiff’s counsel’s declaration describes at least fifteen separate attempts by counsel, to which Defendant’s counsel did not respond with a proposed date for deposition. Finally, although Defendant did serve timely objections regarding the deponent’s unavailability, here, Defendant’s counsel’s complete failure to respond to numerous efforts by Plaintiff’s counsel to schedule a mutually convenient date undermines the objection that the deposition was unilaterally noticed.

In reply, Plaintiff asserts that Defendant has still not provided dates for Kang’s deposition. (Reply, 2.) Accordingly, the motion to compel is granted.

Plaintiff seeks $1,310 in monetary sanctions against Defendant and its counsel of record, based on a $250 hourly rate and the $60 filing fee. The Court finds sanctions are warranted. However, the amount requested is excessive in light of the nature of the motion. Accordingly, the Court awards monetary sanctions in the amount of $810 (3 hours of attorney time plus the filing fee).

CONCLUSION AND ORDER

Accordingly, Plaintiff’s motion to compel Defendant’s president, Moon Y. Kang’s deposition is GRANTED. Moon Y. Kang shall appear for deposition within 20 days.

The Court further grants Plaintiff’s request for monetary sanctions in the reduced amount of $810.00. Defendant North Atlantic Investment Co., LLC and its counsel of record, jointly and severally, shall pay monetary sanctions in the amount of $810.00 to counsel for Plaintiff within 30 days.  

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