Judge: David B. Gelfound, Case: 23CHCV01816, Date: 2024-05-24 Tentative Ruling

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Case Number: 23CHCV01816    Hearing Date: May 24, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL ATTENDANCE AND TESTIMONY OF PAUL KANGAS; REQUEST FOR SANCTIONS

Motion filed: 12/29/23

MOVING PARTY: Plaintiff Mary Beltran Del Rio (“Plaintiff”)

RESPONDING PARTY: Defendant T.J. Maxx of CA, LLC (“Defendant”)

NOTICE: OK

RELIEF REQUESTED: An order compelling Defendant to produce its employee Paul Kangas at deposition to answer questions and produce documents, and imposing sanctions of $2,450.00 against Defendant and its attorney of record.

TENTATIVE RULING: The motion is GRANTED. The request for monetary sanctions is GRANTED IN PART.

BACKGROUND

This action arises from alleged personal injuries that Plaintiff sustained in Defendant’s department store on July 13, 2021.

On June 21, 2023, Plaintiff filed her Complaint against Defendant and Does 1 to 10, alleging one cause of action for Premises Liability. Subsequently, Defendant filed its Answer to the Complaint on July 21, 2023.

            On December 29, 2023, Plaintiff filed the instant Motion to Compel Attendance and Testimony of Paul Kangas (the “Motion”). Subsequently, on April 26, 2024, Defendant filed its Opposition, and Plaintiff replied on May 17, 2024.

ANALYSIS

Any party may obtain discovery by taking the oral deposition of any person in California. (Code Civ. Proc., § 2025.010.) If the deponent is a party, the notice, by itself, compels the production of the documents. (Code Civ. Proc. § 2025.280, subd. (a).)

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, 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, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

A.    Meet and Confer Requirements

"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, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance." (Code Civ. Proc., § 2025.450, subd. (b)(2).) This meet and confer declaration “shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.) 

Here, on October 19, 2023, Plaintiff served the notice of deposition at issue upon Defendant for producing its employee Paul Kangas, the signatory of the verifications for Defendant’s written discovery responses, at the deposition for November 3, 2023. (Baker Decl. ¶ 2.) Subsequently, Defendant served its written objections to Plaintiff’s notice of deposition. (Id. ¶ 3.) Following this, Plaintiff sent Defendant a meet and confer email on October 27, 2023, detailing the issues and arguments raised in the Motion. (Id. ¶ 4.) On November 1, 2023, Defendant responded to Plaintiff’s meet and confer letter, maintaining that it had served valid objections, and that neither its counsel’s office nor the deponent was available and would not be appearing. (Id. ¶ 5.)  Plaintiff produced an affidavit from the deposition officer, stating the failure of the witness to appear for deposition. (Id. Ex. “5.”)

Based on the above record, the Court finds that although Defendant responded to Plaintiff’s October 27, 2023, meet and confer letter, its response merely comprised one sentence confirming nonappearance, but neither substantively discussed the issue as raised in Plaintiff’s letter, nor expressed its willingness to arrange an alternative date. Consequently, it seems to the Court that it would be futile for Plaintiff to ask for the reason for Defendant’s nonappearance again on November 3, 2023, two days after Defendant’s response, when Defendant ultimately failed to appear at the deposition.

Therefore, the Court concludes that the meet and confer requirements have been satisfied.

B.     Motion to Compel Attendance and Testimony

Plaintiff brings the Motion under the authority of Code of Civil Procedure section 2025.450 which is premised on the absence of valid objections and the failure to appear at the deposition by the party served with the notice. (See Code Civ. Proc., § 2025.450, subd. (a).)

Here, it is uncontradicted that the deponent did not appear at the deposition. Consequently, the Court proceeds to examine the validity of Defendant’s objections to Plaintiff’s notice of deposition served on October 19, 2023.

1)      Defendant’s Objections to Plaintiff’s Notice of Deposition

In the Motion, Plaintiff asserts that Defendant raised its objections on three grounds: (1) that the service of the notice was untimely; (2) that the deponent, Paul Kangas, was unavailable; and (3) that the deponent does not have independent knowledge of the incident. (Mot. at p. 5, Baker Decl. Ex. “2,” Stone Decl. Ex. “A.”) Plaintiff argues that these objections are not proper responses. The Court agrees.

i.                    The Service of Notice of Deposition Was Timely

With regard to the timeliness of the Motion and its required notice period, Code of Civil Procedure section 2025.270 states, “An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.”

Here, it is uncontested that Plaintiff served the notice of deposition at issue by email on October 19, 2023, establishing the notice period to exhaust on November 1, 2023, based on 10-calendar-day notice period plus two-court-day extension based on the method of service. (See Code Civ. Proc., § 1010.6, subd. (a)(3).) The deposition was scheduled for November 3, 2023, thus meeting the notice period requirement under the codes. In contrast, Defendant’s argument merely conclusorily states that “[t]he objection was served on October 26, 2023, on the grounds that the deposition notice violated Code of Civil Procedure § 2025.270(a.)[,]” without providing legal analysis or citing authorities.

Consequently, the Court finds Plaintiff’s notice of deposition to be timely.

ii.                  Defendant’s Objections Do Not Stay the Deposition

Code of Civil Procedure section 2025.280 subdivision (a) provides that service of a deposition notice “is effective to require any deponent who is a party to the action [] to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”

The objecting party’s written objection does not stay the taking of the deposition. To do so, the objecting party should move to quash the deposition notice and stay the taking of the deposition. (See Code Civ. Proc., § 2025.410 (c) [“In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.”])

Here, the case record does not indicate the filing of a motion to stay the deposition or a motion to quash the notice of deposition.

Given the Court’s finding that the notice was served timely, it further determines that Defendant’s objections served on October 26, 2023, do not stay the deposition.

iii.                Unavailability of the Deponent Does Not Justify the Nonappearance

As discussed above, the opposing party’s written objections do not stay the deposition. Moreover, Defendant, asserting its deponent’s unavailability, did not seek to work with Plaintiff to arrange for an alternative date.

The Court notes that unavailability by itself is not a substantial justification for an opposing party’s failure to submit to an authorized method of discovery.

iv.                Lack of Independent Knowledge Is Not A Valid Ground.

"For discovery purposes, information is relevant if it 'might reasonably assist a party in

evaluating the case, preparing for trial, or facilitating settlement. Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence." (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013.)

            If a party is a corporation, one of its officers or agents shall sign the response to discovery inquiries under oath on behalf of that party. (See Code Civ. Proc., § 2030.250, subd. (b).)

            In Castaline v. City of Los Angeles (1975) 47 Cal.App.3d 580, 588, footnote 7, the court commented on a corporation's duty to answer interrogatories, as follows: “While a corporation or public agency may select the person who answers interrogatories in its behalf, it has a corresponding duty to obtain information from all sources under its control—information which may not be personally known to the answering agent.”

Here, the deponent, Paul Kangas, was designated by Defendant to verify its written discovery responses, as he signed the verification forms.

Defendant argues that its objection is valid based on the grounds that its employee deponent, Paul Kangas, does not have “independent knowledge of the incident.” (Baker Decl. Ex. “2,”  Stone Decl. Ex. “A.”) However, in its verified responses to Plaintiff written discoveries, the signatory, Paul Kangas, identified himself as follows: “... Senior Vice Present Chief Risk and Compliance Officer, ... makes these responses for and on behalf of TJX, but state that many of the facts set forth in such answers are not within his personal knowledge, having been assembled and compiled within the employ of TJX at his direction, as to which facts he is informed and believes the same to be true and that the remaining facts are known by him to be true. (Opp’n. at pp. 3-4, Stone Decl. ¶ 7.)

The Court rejects Defendant’s argument for several reasons. Firstly, Defendant acknowledged in its verified responses that, besides Defendant’s employees assembling and compiling the facts “at his direction,” “the remaining facts are known by him to be true.” (Stone Decl. ¶ 7.) Secondly, as outlined in Castaline v. Los Angeles, supra, Paul Kangas has a corresponding duty to obtain information and thus have personal knowledge about the sources under his control. Thirdly, the scope of discoverable information is broad and is not limited to only “independent knowledge of the incident.” The deponent is allowed to state his lack of information on a question-by-question basis during the deposition; however, a blanket objection based on no personal knowledge is premature.

Consequently, the Court finds that Defendant’s argument that Paul Kangas has no independent knowledge of the incident is irrelevant and does not substantially justify its position that he is not subject to an authorized discovery method.

2)      Defendant’s Argument of Paul Kangas Being “Apex” Employee

Plaintiff advances another argument in its Opposition that Paul Kangas is its “apex employee,” arguing that Plaintiff cannot meet the high standard for deposing him, citing Liberty Mutual Ins. Co, v. Superior Court of San Mateo County (1992) 10 Cal.App.4th 1282, 1289 (Liberty Mutual). (Opp’n. at p. 6.)

The Court notes that Liberty Mutual does not apply to preclude Paul Kangas’s deposition. In Liberty Mutual, the plaintiff sought to depose Liberty Mutual's president and chief executive officer as part of her initial discovery demands, even though he had no connection to or information about the case. The Liberty Mutual court noted that allowing a party to depose a corporate officer at the “apex” of the corporate hierarchy before less intrusive discovery has been conducted raises a “tremendous potential for discovery abuse and harassment.” (Liberty Mutual, supra, 10 Cal.App.4th at p. 1287.) Thus, “it amounts to an abuse of discretion to withhold a protective order when a plaintiff seeks to depose a corporate president, or corporate officer at the apex of a corporate hierarchy, absent a reasonable indication of the officer's personal knowledge of the case and absent exhaustion of less intrusive discovery methods.” (Ibid.)

Here, Defendant does not substantively argue that its deponent, Paul Kangas’s position as Senior Vice President Chief Risk and Compliance Officer is the equivalent of a CEO, president, or other “corporate officer at the apex of a corporate hierarchy,” as in Liberty Mutual. The title alone is not sufficient. To the contrary, it may be reasonably inferred from his title, Chief Risk and Compliance Officer, that he could have information or sources of information under his control that are connected to the case. Additionally, by designating Paul Kangas to sign the verified discovery responses, including interrogatories, Paul Kangas fits the category of an “officer or agent” under Code of Civil Procedure section 2030.250, subdivision (b), which is distinct from an “apex” employee under Liberty Mutual.

Even if Paul Kangas could be deemed an apex-level executive, Liberty Mutual protected the executive in that case from sitting for a deposition because he had no personal knowledge about the case. (Liberty Mutual, supra, 10 Cal.App.4th at p. 1287.) Plaintiff presented convincing, unrebutted evidence that Paul Kangas signed the verification of Defendant’s responses to written discovery requests. Thus, Paul Kangas has been involved in the case by executing his duty of assembling and reviewing factual information, including those regarding Defendant’s video surveillance system, provided by sources under his control. Defendant is not justified in claiming otherwise simply because he does not have independent knowledge about the incident.

            Therefore, the Court concludes that Defendant’s argument that Paul Kangas is protected under Liberty Mutual as its apex employee fails.

            Based on the foregoing, the Court GRANTS the Motion to Compel Attendance and Testimony of Paul Kangas.

C.    Monetary Sanctions

Code of Civil Procedure section 2025.450, subdivision (g) provides that, “[i]f the motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.”

Given that the Court has granted Plaintiff’s Motion to Compel Attendance and Testimony under Code of Civil Procedure section 2025.450, subdivision (a), it finds that the mandatory monetary sanctions under Code of Civil Procedure section 2025.450, subdivision (g) are applicable in this case. Furthermore, Defendant does not argue, nor does the Court find, that the imposition of the sanction is unjust.  

Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of Plaintiff’s fees and costs incurred for the instant Motion is $2,100.00, calculated at $350.00 per hour for 3 hours, in addition to $990.00 in court reporter fees and a $60.00 filing fee.

CONCLUSION

Plaintiff’s Motion to Compel Attendance and Testimony of Paul Kangas is GRANTED.

Defendant is ordered to produce its deponent, Paul Kangas, for deposition at a mutually agreeable time within twenty days of notice of this order.

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

Defendant and its attorney of record are ordered to pay Plaintiff, jointly and severally, in the amount of $2,100.00.

Plaintiff is ordered to provide notice.