Judge: Anne Hwang, Case: 21STCV36099, Date: 2023-11-15 Tentative Ruling

Case Number: 21STCV36099    Hearing Date: April 9, 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 September 30, 2021, Plaintiffs Eduard Davtyan and Grigor Davtyan filed a complaint against Defendants Matthew Ellison, The Hertz Corporation, and Does 1 to 10 for negligence and negligent entrustment surrounding a motor vehicle accident. Plaintiffs allege that Matthew Ellison was driving the subject car, which was rented from and owned by The Hertz Corporation. 

Defendants Matthew Ellison and The Hertz Corporation (“Defendants”) now move to compel the depositions of Plaintiffs Eduard Davtyan and Grigor Davtyan (“Plaintiffs”). Defendants seek monetary sanctions. Plaintiffs oppose and Defendants reply.

LEGAL STANDARD

Code of Civil Procedure section 2025.450(a) provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”¿ Section 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under section 2025.410.¿ 

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A motion brought to compel a deposition “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.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)¿¿ 

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If a motion to compel deposition is granted, sanctions are mandatory in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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. (Code Civ. Proc., § 2025.450, subd. (g)(1).)¿ 

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿ 

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party’s misuse of the discovery process, monetary sanctions against the party’s attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿ 

MEET AND CONFER

The Declaration of Shirley Carpenter Bridwell does not set forth facts that counsel inquired about the nonappearances. Therefore, the meet and confer requirement was not met.

DISCUSSION

Here, Defendants first noticed Plaintiffs deposition for May 12, 2022, and have served eight notices since. (Bridwell Decl. ¶ 3.) The last deposition notice scheduled a deposition for October 24, 2023. (Id., Exh. A.)  On October 18, 2023, Plaintiffs filed an objection arguing the date was unilaterally set, but did not meet and confer to provide an alternative date. (Id. ¶ 4, Exh. B.) On the date of the depositions, Defendants obtained Certificates of Non-appearance. (Id. ¶ 5, Exh. F.)

In opposition, Plaintiffs argue the depositions took place on March 5, 2024 and March 6, 2024, and therefore, the motions are moot. In reply, Defendants concede the depositions were taken, but still requests monetary sanctions.

Plaintiffs’ counsel declares that the depositions throughout 2022 and 2023 were continued in good faith due to her unanticipated health complications. (Karapetian Decl. ¶ 2.) From August 7, 2023 to October 7, 2023, counsel was placed on medical leave. The day before the October 24, 2023 deposition, Plaintiffs’ counsel spoke to Defendants’ counsel stating that due to her medical leave, her impacted calendar prevented her from attending the deposition. (Id. ¶ 4.) She declares that during this call, counsel for both parties agreed to proceed with all depositions after Defendants’ summary judgment motion was heard on November 15, 2023. (Id. ¶ 6.) Plaintiffs’ counsel states she did not learn that certificates of non-appearance were obtained until this motion was filed. (Id. ¶ 7.) Later, on February 8, 2024, the parties met and conferred via telephone and agreed that Plaintiffs would appear for depositions on March 5^th and 6^th, and Defendants would withdraw the instant motions. (Id. ¶ 12, Exh. C.)

Based on counsel’s declaration, it appears that counsel did not advise Plaintiffs to engage in the discovery abuse. Therefore, the Court declines to award monetary sanctions.

CONCLUSION AND ORDER

The Motions to Compel Plaintiffs’ Depositions are DENIED as moot.

            Defendants shall give notice of the Court’s ruling and file a proof of service.