Judge: Anne Hwang, Case: 22STCV22062, Date: 2023-11-20 Tentative Ruling

Case Number: 22STCV22062    Hearing Date: November 20, 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

Plaintiffs Katherine Rivera de Flores and Brayan Flores (Plaintiffs) move to compel Defendant Jose Gamez’s (Defendant) deposition. Plaintiffs seek monetary sanctions against Defendant and his counsel of record. Defendant has filed a declaration in opposition and Plaintiffs have filed a declaration in response.  

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 under [Code of Civil Procedure section 2025.450] subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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

Plaintiff’s counsel, Valentine Aghakhani, declares she met and conferred with Defendant’s counsel on numerous occasions. (Aghakhani Decl. ¶ 12.) It appears, based off the transcript from the August 14, 2023 deposition, that Plaintiffs’ counsel inquired about the non-appearance. (Id., Exh. 9.)

DISCUSSION

Plaintiffs assert that they noticed Defendant’s deposition for July 12, 2023, July 19, 2023, and August 14, 2023. (Aghakhani Decl. ¶¶ 6,–11, Exh. 4–9.) On each occasion, Defendant failed to appear and Plaintiffs obtained Certificates of Non-Appearance. Since Plaintiffs show that Defendant failed to object or appear at the noticed depositions on July 12, 2023, July 19, 2023, or August 14, 2023, the motion to compel is granted.

Plaintiffs seek $3,763.00 in monetary sanctions representing a $450 hourly rate and four hours to meet and confer and prepare this motion; two hours to file a reply and prepare for the hearing; and $1,063 for the cancellation fees of the July 12, 2023 and July 19, 2023 depositions. (Id. ¶ 16, 18.) In an opposition declaration, Defendant’s counsel asks the Court not to sanction his office or himself since the non-appearance was not his fault. (Muhtaseb Decl. ¶ 12–13.) Based on counsel’s declaration, it appears that counsel did not advise Defendant to engage in the discovery abuse. The Court finds sanctions are warranted, but due to the type of motion at issue and the fact no substantive opposition was filed, the Court reduces the amount requested.

Therefore, the Court awards sanctions against Defendant for $1,963 (two hours of attorney time and $1,063 in cancellation fees).

CONCLUSION AND ORDER

Accordingly, Plaintiffs’ motion to compel Defendant Jose Gamez’s deposition is GRANTED. Defendant shall appear for deposition within 30 days.

The Court GRANTS Plaintiffs’ request for monetary sanctions against Defendant in the reduced amount of $1,963. Said monetary sanctions are to be paid to counsel for Plaintiffs within 30 days of the date of this order.

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