Judge: Anne Hwang, Case: 21STCV42538, Date: 2023-12-06 Tentative Ruling

Case Number: 21STCV42538    Hearing Date: December 6, 2023    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 November 18, 2021, Plaintiff Delbert Webb (Plaintiff) filed a complaint against Defendants Ann Migyom Kim, The Hertz Corporation, and Does 1 to 50 for injuries related to a motor vehicle accident.

            Plaintiff now moves to compel Defendant Ann Migyom Kim’s (Defendant) deposition. Plaintiff seeks monetary sanctions. Defendant opposes.  

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 Tal Hassid indicates he has attempted to schedule Defendant’s deposition but that Defendant has not provided any potential dates. After receiving Defendant’s October 5, 2023 objection, Plaintiff requested a meet and confer. However, Defendant failed to provide an alternative date. (Hassid Decl. ¶ 10–11.) Therefore, the Court finds the meet and confer requirement has been met.   

DISCUSSION

Plaintiff asserts that he has noticed Defendant’s deposition three times and Defendant has failed to appear. The depositions were set for June 1, 2022, July 13, 2023 and October 11, 2023. For the most recent deposition, Defendant sent an objection on October 5, 2023 on the grounds that the deposition was unilaterally set and Defendant and Defendant’s counsel were unavailable. (Hassid Decl. ¶ 5, Exh. F.) Each deposition has received the same objection and Plaintiff contends Defendant has not proposed any available dates. (Id. ¶ 5–8.)  As a result, Plaintiff has noticed the depositions unilaterally. Defendant failed to appear at the October 11, 2023 deposition. (Id. ¶ 11, Exh. I.)

In opposition, Defendant argues the objections were timely and proper, and thus a motion to compel cannot be granted. However, Defendant does not set forth any facts that she has attempted to set a date in good faith.  

Therefore, based on this pattern, Defendant’s objection, though timely, is not valid if she fails to provide alternative dates or pursue the deposition in good faith. As a result, since Defendant failed to appear for deposition on June 1, 2022, July 13, 2023, and October 11, 2023, the motion is granted.

Plaintiff seeks $3,906.15 in monetary sanctions representing a $400 hourly rate for four hours to prepare the motion, two hours to reply, one hour to appear at the hearing, and one hour appearing at the depositions. This amount also includes the $61.65 filing fee for this motion, and $644.50 for the court reporter fee at the October 11, 2023 deposition. (Hassid Decl. ¶ 2.) The Court finds sanctions are warranted but that the amount is excessive given the type of motion at issue and that an objection was served. Therefore, the Court awards $661.65 in monetary sanctions (1.5 hours of attorney time to file and appear at hearing, plus the filing fee) against Defendant.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiff’s motion to compel Defendant Ann Migyom Kim’s deposition. Defendant shall appear for deposition within 15 days. 

The Court GRANTS Plaintiff’s request for monetary sanctions against Defendant and her attorney of record, jointly and severally, in the reduced amount of $661.65. Said monetary sanctions are to be paid to counsel for Plaintiff within 30 days of the date of this order. 

Plaintiff shall provide notice and file proof of service of such.