Judge: Daniel M. Crowley, Case: 21STCV02205, Date: 2022-12-20 Tentative Ruling

Case Number: 21STCV02205    Hearing Date: December 20, 2022    Dept: 28

Defendant Smart & Final Stores, LLC’s Motion to Compel Deposition of Plaintiff Seda Kasemyan

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On January 19, 2021, Plaintiff Seda Kasemyan (“Plaintiff”) filed this action against Defendants Smart & Final Stores, LLC (“SFS”), Smart & Final, LLC (“SF”) and Robert Luevano (“Luevano”) for general negligence and premises liability.

On September 20, 2021, SFS (on behalf of SFS and SF) filed an answer and a Cross-Complaint against Cross-Defendants ROES 1-50 for express indemnification, equitable indemnification, equitable contribution and declaratory relief.

On September 20, 2021, Luevano filed an answer.

On November 21, 2022, SFS filed a Motion to Compel Plaintiff’s Deposition to be heard on December 20, 2022. On December 5, 2022, Plaintiff filed an opposition. On December 13, 2022, SFS filed a reply.

Trial is currently scheduled for February 10, 2023.

PARTY’S REQUESTS

SFS request the Court order Plaintiff to appear for her deposition within 10 days of the hearing on the motion. Defendant also requests the Court impose monetary sanctions against Plaintiff totaling $4,735.00.

Plaintiff requests the Court deny the motion and sanction SFS $4,950.00.

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

SFS originally noticed Plaintiff’s deposition for December 2, 2021. Plaintiff objected to the deposition notice; SFS requested dates from Plaintiff for deposition dates. After Plaintiff failed to provide any deposition dates, SFS served a new notice of deposition for June 10, 2022. Plaintiff once again objected to the deposition but did not provide any other dates. SFS served another notice, this one for September 6, 2022; parties later agreed to continue the deposition to after SFS served discovery responses. Plaintiff objected to the notice and did not appear for the deposition. SFS served Plaintiff with a notice for November 10, 2022; Plaintiff once again objected and failed to appear. Plaintiff has still yet to provide any additional dates.

Plaintiff argues that the deposition has not gone forward due to a mutual agreement to hold off on Plaintiff’s deposition until after Defendants served verified code compliant responses. Plaintiff specifically notes an agreement reached on August 18, 2022; however, SFS has served a new deposition notice from this date, making clear that the agreement either was fulfilled or is no longer applicable. Regardless, SFS has been attempting for over a year to conduct Plaintiff’s deposition. Plaintiff has failed to provide other dates for her deposition, despite the fact it could have been conducted without the awaited discovery responses. A failure of one party to provide timely discovery does not allow another to also fail to provide discovery. The Court grants the motion, ordering Plaintiff to appear for a deposition within 30 days of the hearing on the motion.

Sanctions are warranted as Plaintiff did not act with substantial justification in opposing this motion; SFS have been trying to conduct Plaintiff’s deposition for a year, with no success. No amount of overdue discovery excuses Plaintiff’s refusal to provide applicable dates to SFS.

SFS requests sanctions totaling $4,735.00, based upon 8.5 hours of attorney’s fees at a rate of $550.00 per hour and one $60.00 filling fee. Attorney’s work is based upon 4 hours to draft the motion, 3 hours to reply to any opposition, and 1.5 hours to attend the hearing. The Court awards $1,060.00 in sanctions, based upon 5 hours of attorney’s work at a reasonable rate of $200.00 per hour and one $60.00 filling fee.

CONCLUSION

Defendant Smart & Final Stores, LLC’s Motion to Compel Deposition of Plaintiff Seda Kasemyan is GRANTED. Plaintiff is ordered to appear for her deposition within 30 days of the hearing on the motion.

Defendant Smart & Final Stores, LLC’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay SFS $1,060.00 in sanctions within 30 days of the hearing on the motion.

Plaintiff Seda Kasemyan’s Request for Sanctions is DENIED.

            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.