Judge: David B. Gelfound, Case: 23CHCV00243, Date: 2024-12-19 Tentative Ruling

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Case Number: 23CHCV00243    Hearing Date: December 19, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL SECOND DEPOSITION OF DEFENDANT ISAHI SIERRA; REQUEST FOR SANCTIONS

Motion filed: 10/18/24

MOVING PARTY: Plaintiff Destiny Leon

RESPONDING PARTY: Defendant Isahi Sierra

NOTICE: OK.

RELIEF REQUESTED: An order from this Court to compel Defendant Isahi Sierra to attend a second deposition, and to impose monetary sanctions in the amount of $5,400.00 against Defendants Isahi Sierra, Jimmy Deans, and their counsel of record.

TENTATIVE RULING: The motion is GRANTED. The Request for Monetary Sanctions is GRANTED IN PART.

BACKGROUND

On January 30, 2023, Plaintiff Destiny Leon (“Plaintiff” or “Leon”) initiated this action against Defendants Jimmy Deans (“Deans”), James Axotis, Isahi Sierra (“Sierra”) (collectively, “Defendants”), and Does 1 through 100, alleging the following causes of action: (1) Sexual Harassment – Hostile Work Environment in Violation of FEHA, (2) Discrimination in Violation of FEHA, (3) Failure to Prevent Harassment and Discrimination in Violation of FEHA, (4) Negligent Supervision and Retention, and (5) Wrongful Constructive Termination in Violation of Public Policy. Subsequently, Defendants Deans and Sierra filed their Answers to the Complaint on March 29, 2023, and April 7, 2024, respectively. On May 15, 2024, Plaintiff dismissed Defendant James Axotis.

On October 18, 2024, Plaintiff filed the instant Motion to Compel Second Deposition of Defendant Isahi Sierra (the “Motion”). Subsequently, Defendant Sierra filed an Opposition to the Motion.

No Reply papers have been received by the Court.

ANALYSIS

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).)

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it 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., § 2025.480, subd. (j).)

A.    Procedural Requirements

“This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.480, subd. (b).)

Here, counsel for Plaintiff took the deposition of Defendant Sierra via Zoom on October 2, 2024. (Harmoush Decl. ¶ 9, Greenberg Decl. ¶ 4.) The Motion was filed on October 18, 2024, which falls within the 60-day time limit mandated by Code of Civil Procedure section 2025.480, subdivision (b).

Additionally, the Court finds that the meet and confer requirements have been satisfied. (Harmoush Decl. ¶¶ 4-5, Ex. “A.”)

Accordingly, the Motion complies with the procedure requirements under Code of Civil Procedure section 2025.480, subdivision (b).

B.     Motion to Compel Second Deposition of Defendant Isahi Sierra

Code of Civil Procedure section 2017.010 provides, in pertinent part, “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Misuses of the discovery process include “[f]ailing to respond or to submit to an authorized method of discovery[,]” and “[m]aking an evasive response to discovery.” (Code Civ. Proc., ¶ 2023.010, subd. (d) and (f).)

Here, Plaintiff moves under Code of Civil Procedure section 2025.480, subdivision (a) to compel Defendant Sierra to submit to a second deposition, arguing that Sierra engaged in inappropriate behavior and conduct, and failed to truthfully and fully answer questions during the October 2, 2024, Deposition.

Plaintiff states that during the October 2, 2024, deposition, Defendant Sierra purposefully evaded questions, delayed providing answers, and willfully and maliciously refused to answer questions. (Harmoush ¶ 9.) Moreover, Defendant Dean Axotis attempted to coach Sierra in his answers and can be heard in the background on the deposition recording. (Id. ¶ 10.) Defendant Dean Axotis repeatedly interrupted the deposition proceedings by walking in and out of the room, turning on a television set, opening a refrigerator, and interjecting comments in a rude and belligerent manner. (Ibid.) Furthermore, Plaintiff claims that Defendant’s counsel inappropriately over objected to questions and did nothing to control Defendant Sierra and Dean Axotis’s evasive and unprofessional behavior during the deposition. (Mot. at p. 7.)

Furthermore, the certified copy of the Deposition Transcripts confirms that Plaintiff’s counsel admonished Dean Axotis for being present in the room and was trying to coach Defendant Sierra in the answer to his questions. (Harmoush Decl. Ex. “B” at 18:4-8.) Plaintiff’s counsel further admonished Defendant Sierra for his repeatedly vague and non-responsive answers. (Id. at 24:10-25; 31:2; 55:20-56:1-25.) (See Mot. at p. 7.)

It is undisputed that inappropriate behavior of Defendant Sierra and Dean Axotis during the October 2, 2024, deposition constituted misuses of the discovery process.

The Court observes that a deponent under oath is obligated to answer questions honestly and directly unless a valid objection is made. Furthermore, a deponent is required to participate in depositions in good faith. Upon review of the records, the Court finds that Defendant Sierra, along with Dean Axotis acting as Defendant Jimmy Dean’s representative witness, engaged in inappropriate behavior and conduct during the October 2, 2024, deposition, thereby impeding Plaintiff’s rights to obtain discovery.

As a remedy, Defendant Sierra shall be compelled to provide responsive answers to the previously unaddressed questions during a second deposition. (Code Civ. Proc., § 2025.480, subd. (a).)

Accordingly, the Court GRANTS the Motion to Compel Second Deposition of Defendant Isahi Sierra.

C.    Monetary Sanctions

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it 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., § 2025.480, subd. (j).)

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it 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., § 2023.030.)

Here, Plaintiff seeks monetary sanctions against Defendants Sierra and Deans, and their counsel of record, in the amount of $5,400.00. Dean Axotis appeared as a representative witness on behalf of Defendant Deans. (Greenberg Decl. ¶ 4.) As a corporate entity, Defendant Jimmy Deans is responsible for the misconduct of its representative whom it designated to attend the October 2, 2024, deposition.

The Court finds that monetary sanctions against Defendants Sierra and Deans are justified due to their egregious misuse of the discovery process. Defendant Sierra purposefully evaded questions, provided vague and non-responsive answers, and willfully disrupted the deposition. Similarly, Dean Axotis, acting as a representative witness for Defendant Deans, engaged in unprofessional conduct by repeatedly interrupting the deposition, coaching Sierra’s testimony, and disregarding counsel’s instructions. As a corporate entity, Defendant Deans is accountable for the misconduct of its designated representative, Dean Axotis, who acted under its authority during the deposition. Such conducts impeded Plaintiff’s right to obtain relevant discovery and undermined the deposition’s integrity, in clear violation of discovery obligations under Code of Civil Procedure. Accordingly, sanctions are warranted to address the Defendants' improper conduct and to deter similar violations in the future.

However, the Court concludes that sanctions against Defendants’ counsel are not justified under the circumstances.

In Opposition, Sierra’s counsel argues that the sanctions against the counsels Mr. Danton Richardson, John W. Fagerholm, and Stephanie B. Greenberg (collectively, “Defense Counsel”), of the Law Offices of John W. Fagerholm, Ltd. (“JFW Law”) should be denied. Defense counsel argues that (1) they never opposed nor objected to allowing a second deposition of Defendant Sierra; (2) they did not willfully and/or purposefully engage in inappropriate or unethical conduct contrary to California Code of Civil Procedure and Los Angeles Attorney Rules of Professional Conduct; and (3) counsel Stephanie B. Greenberg at all times acted in good faith during the deposition of Defendant Sierra and objected to deposition questions as necessary in defense of Defendant Sierra. (Opp’n. at pp. 4-5.)

The Court observes that Plaintiff’s own evidence contradicts the claim that Defense Counsel did nothing to control Defendant Sierra and Dean Axotis’s evasive and unprofessional behavior during the deposition. (Mot. at p. 7.) In Plaintiff’s counsel’s meet and confer letter dated October 10, 2024, it states,

“Despite your efforts to advise your clients to comply with proper procedure, Mr. [Dean] Axotis:

1. Crawled out of the room after being asked if he was present, then reentered the room multiple times.

2. Turned on the TV in the room, which displayed live security camera footage of their business, distracting Mr. Sierra during questioning.

3. Interfered by coaching Mr. Sierra, advising him on how to answer specific questions, and even instructing me to refer back to exhibits, only to be proven incorrect.

4. Shouted at counsel and disregarded your instructions to refrain from speaking or influencing Mr. Sierra’s testimony. . . .

Throughout the deposition, you made numerous attempts to control your clients and advised them to stop interfering and to provide uncoached testimony. However, they repeatedly ignored your guidance. Their disregard for your instructions and the established deposition procedures has forced you to motion to withdraw from this case, marking them as clients who are not willing to cooperate.”

(Harmoush Decl. Ex. “A,” at pp 1-2.) (Underlines added.)

It is evident that Defense Counsel Stephanie B. Greenberg acted in good faith, albeit unsuccessfully, in her efforts to control and advise Defendant Sierra and Dean Axotis to cease interfering with the deposition and to comply with proper procedure. Accordingly, the Court concludes that sanctions are appropriately imposed solely on Defendants Sierra and Deans alone, excluding their counsel.

Utilizing the lodestar approach, the Court determines the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the Motion to be $1,200.00, calculated based on a reasonable hourly rate of $400.00 for three hours reasonably spent.

Accordingly, Plaintiff’s request for monetary sanctions is GRANTED IN PART.

CONCLUSION

Plaintiff Destiny Leon’s Motion to Compel Second Deposition of Defendant Isahi Sierra is GRANTED.

Defendant Isahi Sierra is ordered to attend the second deposition within 60 days. Plaintiff Destiny Leon is to provide notice of the second deposition in compliance with applicable code requirements.

Plaintiff Destiny Leon’s Request for Monetary Sanctions is GRANTED IN PART.

Defendants Jimmy Deans and Isahi Sierra are ordered to jointly and severally pay $1,200.00 in sanctions to Plaintiff Destiny Leon’s counsel of record.

Moving party to give notice.