Judge: Daniel M. Crowley, Case: 20STCV49369, Date: 2022-12-15 Tentative Ruling

Case Number: 20STCV49369    Hearing Date: December 15, 2022    Dept: 28

Defendant Glendale I Mall Associates, LP’s Motion to Compel Deposition of Plaintiff Saakyan Silva

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On December 28, 2020, Plaintiff Saakyan Silva (“Plaintiff”) filed this action against Defendants Brookfield Properties Retail Group (“BPRG”), Brookfield Properties Retail Inc. DBA Glendale Galleria (“Galleria”) and Brookfield Properties Management (CA) Inc. (“BPM”) for negligence, premises liability and negligence per se.

On March 12, 2021, Defendant Glendale I Mall Associates, LP (“Defendant”) filed an answer on behalf of all Defendants.

On April 29, 2021, Plaintiff filed the FAC.

On September 8, 2022, Defendant filed a Motion to Compel Plaintiff’s Deposition to be heard on December 15, 2022.

Trial is currently scheduled for February 15, 2023.

PARTY’S REQUESTS

Defendants request the Court order Plaintiff to appear for her deposition within 15 days of the hearing on the motion. Defendants also request the Court impose monetary sanctions against Plaintiff totaling $1,755.15.

LEGAL STANDARD

Code of Civil Procedure § 2025.450 allows the Court to compel a party’s appearance and to produce documents. 

“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 or tangible thing 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 or tangible thing described in the deposition notice.”  A motion under subdivision (a) 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 or things described in the deposition notice, by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance.”

CCP § 2025.450 provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition 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.

Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010.

DISCUSSION

Defendant noticed Plaintiff’s deposition originally for February 25, 2022. Plaintiff objected on the basis that Plaintiff’s Counsel was unavailable for the deposition and the deposition was set unilaterally; Plaintiff failed to provide any additional dates, despite Defendant’s attempt to contact Plaintiff. Defendant then attempted to reschedule Plaintiff's deposition multiple times. At the time of the filing of this motion, Plaintiff did not provide any dates or confirm the attempts to set the deposition. Defendant has diligently attempted to take Plaintiff’s deposition for over half a year—the Court finds good cause and grants the motion.

Defendant is entitled to sanctions due to Plaintiff’s misuse of the discovery process. Defendant requests sanctions totaling $1,755.15, based upon 10.5 hours of attorney’s work, at a rate of $175.00 per hour, one $61.65 filing fee and two $15.50 service fees. Attorney’s work consists of 3 hours to meet and confer, 4 hours to draft the motion, 1 hour to draft the separate statement, 1.5 hours to review an opposition, and 1 hour to appear at the hearing. The Court notes that this motion is unopposed and that it will not grant sanctions based on time spent meeting and conferring. Additionally, the Court will not award sanctions based on service fees. The Court grants sanctions totaling $761.65, based on 4 hours of attorney’s work and one filling fee.

CONCLUSION

Defendant Glendale I Mall Associates, LP’s Motion to Compel Deposition of Plaintiff Saakyan Silva is GRANTED. Plaintiff is ordered to appear for a deposition within 15 days of the hearing on the motion.

Defendant Glendale I Mall Associates, LP’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay Defendant $761.65 in sanctions within 30 days of the hearing on the motion.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.