Judge: Anne Hwang, Case: 22STCV25044, Date: 2024-04-23 Tentative Ruling

Case Number: 22STCV25044    Hearing Date: April 23, 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 August 3, 2022, Plaintiff Ciara M. (“Plaintiff”) filed a complaint against Defendant Jeremey Ellis (“Defendant”) for intentional misrepresentation, and negligence regarding sexual transmission of a disease. Defendant filed an answer on January 27, 2023.

Plaintiff now moves to compel Defendant’s deposition. Plaintiff also seeks monetary sanctions. Defendant opposes and Plaintiff replies.

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 Tuan Ho states that on November 16, 2023, he attempted to meet and confer by requesting alternative deposition dates from Defendant. (Ho Decl. ¶ 3, Exh. D.) Therefore, the meet and confer requirement has been met.

DISCUSSION

On November 3, 2023, Plaintiff noticed Defendant’s remote deposition, set for November 28, 2023. (Ho Decl. ¶ 2, Exh. A.) On November 15, 2023, Defendant served an objection based on the fact the date was unilaterally selected. (Id. ¶ 2, Exh. C.) Plaintiff requested alternative dates and waited three weeks, but Defendant did not respond. (Id. ¶ 3, Exh. D.) As a result, on December 4, 2023, Plaintiff noticed the remote deposition for a second time, set for December 19, 2023. (Id., Exh. E.) On December 14, 2023, Defendant served another objection based on unavailability of counsel and arguing the deposition was burdensome since Plaintiff’s case was meritless. (Id., Exh. F.)

In opposition, Defendant argues he raised valid objections and produced negative test results which undermine the basis for Plaintiff’s action. (Opp., 4.)

Though Defendant served objections, and while unavailability for a unilaterally selected date may be a reasonable objection, Defendant thereafter did not respond to requests for a mutually convenient date. This conduct undermines the validity of the objection. Also, though Defendant argues this case is meritless, Defendant has not filed a dispositive motion. Therefore, the Court declines to decide issues on the merits in the form of a discovery motion. Accordingly, the motion to compel is granted.

Plaintiff requests $1,985 in monetary sanctions against Defendant, representing a $350 hourly rate, and the $60 filing fee. (Ho Decl. ¶ 5.) The Court finds that sanctions are warranted, however the amount is excessive due to the type of motion at issue. Therefore, the Court grants monetary sanctions in the amount of $585 (1.5 hours of attorney time, plus the filing fee).  

CONCLUSION AND ORDER

Accordingly, Plaintiff’s motion to compel Defendant’s deposition is GRANTED. Defendant Jeremey Ellis shall appear within 30 days’ notice of this order for a deposition.

The Court further grants Plaintiff’s request for monetary sanctions in the reduced amount of $585.00 against Defendant Jeremey Ellis. Said monetary sanctions shall be paid to counsel for Plaintiff within 30 days of this order.

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