Judge: Cherol J. Nellon, Case: 22STCV33158, Date: 2024-09-17 Tentative Ruling
Case Number: 22STCV33158 Hearing Date: September 17, 2024 Dept: 14
#9
Case Background
This is an action for breach of contract, breach of the
covenant of good faith and fair dealing, fraud, negligent misrepresentation,
violations of the Labor Code, wrongful terminations, and unfair business
practices. Plaintiff alleges that while he was employed as a soccer coach for
Defendants, Defendants failed to pay him for his work.
On October 10, 2022, Plaintiff Paul Caligiuri filed his
Complaint against Defendants Element global, Inc., Element Sports Group, Inc.,
Element Media Group, Inc., Clarinova Limited, Element Global Mining Group, Inc.,
Element Energy Group, Inc., Element Technology Group, Inc., Element Capital
Markets LTD, Steven Ganon, John Laviolette, Shasa Shapiro, and Merle Ferguson.
On June 17, 2024, Plaintiff filed this motion to compel
the deposition of the person most knowledgeable of Defendant Element Global,
Inc. (Element Global) and to produce documents specified in the deposition
notice.
Instant Pleading
Plaintiff moves to compel Defendant Element Global’s
Person Most Knoweldgeable (PMK) to appear for deposition and produce documents
specified in the deposition notice.
Decision
The motion is GRANTED.
The Court awards Plaintiff $$3,267.35 in sanctions for
four hours of attorney time at a rate of $450 per hour and $1,467.35 in
expenses for court reporting services, to be paid within 30 days of the Court’s
order.
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., section
2025.010.) If the deponent named in a deposition notice is not a natural
person, 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.,
section 2025.230.)“If, after service of a deposition notice, a party to the
action … 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 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., section 2025.450, subd. (a).)
If a
motion to compel deposition is granted, sanctions are mandatory 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., section 2025.450,
subd. (g)(1).)
Discussion
Plaintiff’s counsel testifies that he served a
deposition notice on Defendant Element Global, Inc. setting a deposition date
of May 13, 2024. (Derosa Decl., ¶5.) Element Global did not object to the
notice of deposition and failed to produce a PMK for deposition. (Id.,
¶6.) Plaintiff incurred $1,467.35 in expenses for court reporting services. (Id.,
¶8.) Plaintiff’s counsel additionally spent 8.5 hours preparing for and
attending the failed deposition, 4 hours drafting this motion, and anticipates
spending 2 hours reviewing an opposition and drafting a reply. (Id.,
¶9.)
The motion is unopposed. That lack of an opposition
amounts to a concession that the motion is meritorious. (See California Rules
of Court Rule 3.1113(a); see also Rule 3.1320(f); Herzberg v. County of
Plumas (2005) 133 Cal.App.4th 1, 20 (the party who fails to
argue an issue abandons that issue).) Plaintiff’s motion to compel the
deposition of Element Global’s PMK and to compel it to produce documents
specified in the deposition notice is granted because Element Global failed to produce
a PMK for a properly noticed deposition.
Plaintiff’s request for sanctions is excessive. Although
sanctions for expenses incurred due to Laviolette’s failure to appear are
reasonable, it would not be reasonable to award Plaintiff’s counsel sanctions
for time he spent preparing for the deposition because he would have spent this
time regardless of whether Laviolette appeared. Additionally, this motion was
not opposed. Therefore, the Court awards Plaintiff $3,267.35 in sanctions for
four hours of attorney time at a rate of $450 per hour and $1,557.15 in
expenses for court reporting services.
Conclusion
The motion is GRANTED.