Judge Anne Hwang, Case Number: 23STCV17379, Date: 2024-09-30 Tentative Ruling

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.

Plaintiff Charron Reynolds (“Plaintiff”) moves to compel the deposition of Defendant APRO LLC’s (“Defendant”) employees: Jennifer Short, Charlie Choomngen, and Dorena Gomez. Plaintiff requests monetary sanctions against Defendant’s counsel. Defendant opposes and Plaintiff replies.

“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.”

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).)

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.)¿¿

The Declaration of Erich Tomkinson, Plaintiff’s counsel, states that following the employees’ non-appearances, he sent a meet and confer to Defendant on July 17, 2024, but received no response. (Tomkinson Decl. ¶ 15.)

Plaintiff began contacting Defendant to schedule the depositions of Defendant’s three employees (Jennifer Short, Charlie Choomngen, and Dorena Gomez) in May 2024. (Tomkinson Decl. ¶ 3.) On May 22, 2024, Defendant stated that Charlie Choomngen, and Dorena Gomez were no longer employed, but that they were “trying to connect with them.” (Id. ¶ 5.) On June 7, 2024, Defendant’s counsel represented that they were working to schedule the depositions. (Id. ¶ 9.) Plaintiff emailed on June 17, 2024 asking for an update, but received no response. After hearing no response, Plaintiff noticed the depositions on June 18, 2024, setting them for July 10 and July 11, 2024. No objections were served. None of the deponent employees appeared for their depositions and Plaintiff obtained certificates of non-appearance. (Id. ¶ 13-14, Exh. L, M.)

In opposition, Defendant asserts that Dorena Gomez and Charlie Choomngen are no longer employees, and thus Defendant has no authority to produce them for deposition. Defendant argues it never promised to produce them for deposition but was only trying to establish contact as a courtesy to Plaintiff. (Opp., 4.) Defendant contends that Jennifer Short is still an employee but is presently in Colorado on a long-term work assignment and will return to California after September 2024. Defendant asserts it will schedule Short’s deposition once she returns to California. (Opp., 2.) Defendant also argues sanctions should not be imposed since the lapse in communication in late May 2024 to June 2024 was caused by this case being transferred to the current handling attorney in July 2024. (Lieberthal Decl. ¶ 3.) Defendant’s counsel failed to appear at the 10:00 a.m. July 10, 2024 deposition due to a calendaring error when the file was transferred. (Id. ¶ 4.) Nevertheless, upon learning of the mistake, he appeared for the 2:00 p.m. deposition. Additionally, Defendant’s counsel states that he met and conferred at the July 11, 2024 deposition and informed Plaintiff he was unsuccessful in trying to contact Charlie Choomngen, and Dorena Gomez. (Id. ¶ 11.)

In reply, Plaintiff provides no authority for the Court to compel the depositions of non-party witnesses who are no longer employed by Defendant. Therefore, the motion to compel the depositions of Charlie Choomngen, and Dorena Gomez is denied.

The parties should promptly meet and confer to discuss Defendant’s previous efforts to contact Charlie Choomngen and Dorena Gomez, and discuss how the parties should move forward.[1]

Turning to the deposition of Jennifer Short, who is a current employee, it is undisputed that no objection was served for the July 11, 2024 deposition. Additionally, Defendant has not asserted that it provided alternative dates for Short’s deposition, but only that she will return to California after September 2024. Seeing as it is the end of September, and given there were no objections served, the motion to compel the deposition of Jennifer Short is granted.

In the Notice of Motion, Plaintiff seeks $3,285 in monetary sanctions against Defendant’s counsel only, representing a $350 hourly rate and the $1,535 for the certificates of non-appearance. (Tomkinson Decl., Exh. N.) However, because the evidence does not show that Defendant’s counsel advised the conduct claimed, but rather that he failed to appear or respond due to a calendaring error from the transfer of this case file, the request for sanctions is denied.

Accordingly, Plaintiff’s motion to Compel Deposition Testimony from Defendant Apro. LLC Employees is GRANTED in part. Defendant’s employee Jennifer Short shall appear within 30 days’ notice of this order for a deposition, or on another date mutually agreeable to the parties.

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

[1] Although Plaintiff contends that the discovery responses indicate that Gomez and Choomngen should be contacted through defense counsel, the proper remedy for these former employees is to follow up regarding the discovery requests for contact information. Plaintiff does not provide a statutory basis for the Court to compel Defendant to produce former employees, even if Defendant responded to other discovery that they should be contacted through defense counsel.

DEPT:	32
HEARING DATE:	September 30, 2024
CASE NUMBER:	23STCV17379
MOTIONS:	Motion to Compel Deposition Testimony from Defendant Apro. LLC Employees
MOVING PARTY:	Plaintiff Charron Reynolds
OPPOSING PARTY:	Defendant APRO LLC