Judge: Colin Leis, Case: 20STCV30395, Date: 2025-01-14 Tentative Ruling

 



 




Case Number: 20STCV30395    Hearing Date: January 14, 2025    Dept: 74

Stoops v. Lend et al.

 

BACKGROUND 

            This cases arises from a contract fraud complaint.

            Plaintiffs Jackson Stoops and Guiding Hands Social Club filed complaint against defendants Stephen Wei-Liang Leng (Leng), Jennifer Leng, Kristie Do, and Janet Lao.

            On October 30, 2023, the Court ordered defendant Leng to sit for an additional 4 hours of deposition.

            Plaintiffs filed a motion for sanctions after Leng failed to attend the noticed deposition.

LEGAL STANDARD

A motion lies to compel deposition attendance or document production, after service of a deposition notice, where a deponent fails to appear at, or proceed with, a deposition, without having served a valid objection under section 2025.410.  (Code Civ. Proc., § 2025.450(a).)

No meet and confer is required to compel initial deposition attendance, but instead there must be a declaration showing that moving party inquired about the nonappearance.  (Code Civ. Proc., § 2025.450(b)(2).)

            The court is authorized, after notice and an opportunity for hearing, to impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: monetary sanctions, issue sanctions, evidence sanctions, terminating sanctions, and contempt.  (Code Civ. Proc., §¿2023.030, subds. (a)-(e).)  Code of Civil Procedure, section 2023.010, subdivision (g) provide that a misuse of the discovery process includes evasive responses to discovery.  (Code Civ. Proc. § 2023.010(f).)

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. [Citation.]”  (Doppes v. Bentley Motors, Inc.¿(2009) 174 Cal.App.4th 967, 992; see J.W. v. Watchtower Bible and Tract Society of New York, Inc.¿(2018) 29 Cal.App.5th 1142, 1169.)  If a lesser sanction fails to curb misuse, a greater sanction is warranted.  (Doppes, supra, 174 Cal.App.4th at p. 992.)  “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed what is required to protect the interests of the party entitled to but denied discovery.’”  (Ibid.)  “But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.”  (Id., quoting Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280); Creed-21 v. City of Wildomar¿(2017) 18 Cal.App.5th 690, 702, quoting Doppes and Mileikowsky.)¿¿ 

The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the detriment to the propounding party, and the number of formal and informal attempts to obtain discovery.  (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) 

Before any sanctions may be imposed, the court must make an express finding that there has been a willful failure of the party to serve the required discovery responses.  (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.)  The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful.  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252-253.)   

Evidence or issue sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, or another additional order to respond would be futile.  (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426.)

 

DISCUSSION

            The Court ordered Leng to sit for an additional four hours of deposition in October 30, 2023.  (Crites Decl., ¶ 3.)  After several failed attempts to procure Leng’s deposition, Plaintiffs noticed on October 23, 2024, Leng’s deposition for October 28, 2024,.  (Crites Decl., ¶ 8.)  Leng’s counsel confirmed on October 25, 2024, that Leng would attend the deposition.  (Crites Decl., ¶ 10.) They were unable to proceed on October 28th, so the Parties confirmed and rescheduled the deposition for November 4, 2024.  (Crites Decl., ¶ 11.)  Plaintiffs served an amended notice on October 30, 2024.  Leng did not object to the untimely notice, nor did Leng notify Plaintiff’s counsel that he would be unable to attend.  (Crites Decl., ¶¶ 13-16.)  Plaintiffs inquired about Leng’s nonappearance and received no response.  (Crites Decl., ¶ 17.)

            Defendant opposes the Motion for Sanctions on the grounds that the notice of the deposition was improper.  Defendant waived the objection to improper notice by failing to serve a written objection.  (Code of Civil Procedure § 2025.410(a).) 

            Defendant violated the order requiring additional time at deposition.  Plaintiffs request issue, evidentiary and monetary sanctions against Defendant.  Sanctions should be incremental, and Plaintiffs have not shown that monetary sanctions would be unsuccessful in compelling Leng to complete his required Deposition. Therefore, the Court declines to impose issue or evidentiary sanctions.

            Plaintiffs request $4,655 in monetary sanctions.  The amount represents five hours in preparing the original motion, three hours in preparing the reply brief and for the hearing, and a $400 hourly rate.  The court finds this reasonable.

 

CONCLUSION

            The Court grants Plaintiffs’ motion for sanctions. The Court awards $4,655 to Plaintiffs.

            Plaintiffs to give notice.