Judge: Anne Hwang, Case: 23STCV21493, Date: 2024-08-14 Tentative Ruling

Case Number: 23STCV21493    Hearing Date: August 14, 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 6, 2023, Plaintiff Renee Martinez (“Plaintiff”) filed a complaint for negligence against Defendant Lakeview Terrace Skilled Nursing Facility LLC (“Defendant”).

Plaintiff now moves to compel Defendant’s deposition of its Person Most Knowledgeable (“PMK”). Plaintiff also seeks monetary sanctions. Defendant’s counsel has filed a declaration in response.  

LEGAL STANDARD

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., § 2025.280, subd. (a).)

“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc. § 2025.230.)

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. (Code Civ. Proc., § 2025.410, subd. (c).)

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . 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 notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)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 Christine Reyes, Plaintiff’s counsel, provides facts that she has met and conferred with Defendant’s counsel in attempting to schedule the deposition. (See Reyes Decl. ¶ 8-9.)  

DISCUSSION

On May 7, 2024, Plaintiff served a third deposition notice of Defendant’s PMK, set for June 11, 2024. (Reyes Decl. ¶ 4, Exh. 1, 2.) On June 6, 2024, Defendant’s counsel stated they were unable to confirm the deposition with Defendant. (Id. ¶ 6, Exh. 5.) On June 6, 2024, Defendant served an objection, stating the deposition was unilaterally set and Defendant was unavailable. (Id. ¶ 7, Exh. 8.) On June 11, 2024, Plaintiff requested alternative dates, but none were provided. Since then, no alternative dates have been provided.

In the declaration in response, Defendant’s counsel summarizes that after speaking with the administrator of the Lakeview Terrace Skilled Nursing Facility, Hana Feller, she was informed that the facility ceased operations in March 2023. (Kiseskey Decl. ¶ 2.) Based on discussions with Hana Feller, Defendant’s counsel determined Elliot Zemel, the former principal for Defendant, was the likely PMK. (Id. ¶ 8.) Feller stated she would inform Zemel, but since June 5, 2024, Defendant’s counsel has had no communication with Feller or Zemel. As a result, counsel has filed a motion to be relieved, citing an irreconcilable breakdown of the attorney-client relationship. (Id. ¶ 11.)

Based on the evidence presented, no person most qualified appeared for the mutually agreed upon June 11 deposition. Accordingly, the objection that the deposition was unilaterally set appears to be without merit.[1] (Kiseskey Decl. ¶ 5 [“We mutually continued the deposition to June 11, 2024.”].) The Court therefore grants the motion to compel.

The Court finds that sanctions are warranted for Defendant’s failure to appear, but not as to counsel, who did not advise Defendant to fail to appear according to the declaration of counsel. However, the amount requested is excessive given the nature of the motion, lack of reply brief, and ability of counsel to appear remotely for the hearing. Accordingly, the Court orders monetary sanctions in the amount of $411.65 (1 hour of attorney time at $350 plus the filing fee).

CONCLUSION AND ORDER

Accordingly, Plaintiff’s motion to compel Attendance at Deposition is GRANTED. Defendant shall produce a person most qualified for deposition within 60 days. Responsive documents shall be produced at least 3 days prior to the deposition.

Defendant shall pay $411.65 to counsel for Plaintiff within 30 days.

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