Judge Barbara M. Scheper, Case 20STCV44683 2023-03-09 Tentative Ruling

Judge: Barbara M. Scheper, Case: 20STCV44683, Date: 2023-03-09 Tentative Ruling

Case Number: 20STCV44683 Hearing Date: March 9, 2023 Dept: 30

Dept. 30

Calendar No.

Baraness Investments LLC vs. Alanic International Corporation, et. al., Case No. 20STCV44683

Tentative Ruling re: Plaintiff’s Motion to Compel Deposition

Plaintiffs/Cross-Defendants Baraness Investments, LLC, and Sean Baraness (collectively, Baraness) move for an order compelling the deposition of Sukhi Cour (Cour), the employee of Defendant/Cross-Complainant Alanic International Corporation (Alanic). The motion is granted. The Court orders monetary sanctions against Alanic and its counsel in the amount of $2,760.

The deponent is ordered to appear for deposition within thirty (30) days of today’s date and produce documents five (5) days prior to the deposition.

Defendant and Defendant’s counsel are ordered to pay Plaintiff’s counsel $2,760 within thirty days of today’s date.

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).)

The motion to compel deposition “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.” (Code Civ. Proc., § 2025.450, subd. (b)(1).) “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)(2).)

On January 12, 2023, Baraness served a Notice of Deposition for Cour on Alanic, scheduling Cour’s deposition for January 25, 2023, and requesting production of documents at the deposition. (Esfandi Decl. ¶ 4, Ex. 3.) Alanic did not serve any objections to the deposition. On January 24, Alanic’s counsel told Baraness’s counsel that they had not heard from their client and that the deposition would need to be continued. (Esfandi Decl. ¶ 4, Ex. 4.) Baraness’s counsel had been requesting Cour’s availability for deposition from Alanic’s counsel since November 29, 2022, but Alanic’s counsel had continually failed to provide it. (Esfandi Decl. ¶ 3.)

Johnny Beig, a principal of Alanic, testified at his deposition that Cour was the only person working in Alanic’s accounting department in 2020. (Esfandi Reply Decl. ¶ 3, Ex. 1.) Tony Beig, another principal of Alanic, testified that he instructed Cour to send certain invoices to Baraness. (Esfandi Reply Decl. ¶¶ 4-5, Ex. 2, Ex. 3.) Cour’s position at Alanic and her purported role in the events at issue show good cause to compel her deposition.

Alanic did not timely serve objections, and so has waived objections to Cour’s Notice of Deposition and the accompanying Requests for Production. (Code Civ. Proc. § 2025.410, subd. (a).) Because Cour is a party-affiliated deponent, Baraness’s notice of deposition is effective to require her attendance. (Code Civ. Proc. § 2025.280, subd (a).) Alanic does not present any substantive argument in opposition, and its attempt to rely on the hearsay statements in the declaration of Johnny Beig is unavailing. (Beig Decl. ¶¶ 5-8.) Accordingly, the motion to compel is granted.

If a motion to compel deposition 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).)

The Court finds that monetary sanctions against Alanic are warranted based on Cour’s failure to appear without substantial justification. Baraness requests sanctions in the amount of $2,760, based on an hourly rate of $450, for 3 hours to draft this motion, 2 hours to review the opposition and draft a reply, and 1 hour to prepare for and attend the hearing, plus costs of $60. (Esfandi Decl. ¶ 6.) The requested sanctions are granted.