Judge: David B. Gelfound, Case: 23CHCV01816, Date: 2025-02-10 Tentative Ruling

Case Number: 23CHCV01816    Hearing Date: February 10, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO ENFORCE COURT’S ORDER

Motion filed: 9/19/24

MOVING PARTY: Plaintiff Mary Beltran Del Rio

RESPONDING PARTY: Defendant T.J. Maxx of CA, LLC

NOTICE: OK.

RELIEF REQUESTED: An order to compel Defendant’s compliance with the Court’s May 24, 2024, Order, compelling Paul Kangas to attend deposition within 15 days. Plaintiff further requests monetary sanctions against deponent in the amount of $1,000.00 and against his counsel of record in the amount of $1,500.00

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

BACKGROUND

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

On June 21, 2023, Plaintiff Mary Beltran Del Rio (“Plaintiff”) filed her Complaint against Defendant T.J. Maxx of CA, LLC (“Defendant” or “T.J. Maxx”) and Does 1 to 10, alleging a single cause of action for Premises Liability. Subsequently, Defendant filed its Answer to the Complaint on July 21, 2023.

            On May 24, 2024, the Court granted Plaintiff’s motion to compel the attendance and testimony of Paul Kangas, Defendant’s employee, within 20 days of notice of the order. The Court also ordered Defendant to pay monetary sanctions of $2,100.00 to Plaintiff. (5/24/24 Minute Order.)

            On September 19, 2024, Plaintiff filed the instant Motion to Enforce Court’s May 24, 2024, Order (the “Motion”). Subsequently, Defendant filed its Opposition to the Motion on January 28, 2025, and Plaintiff submitted her Reply on February 3, 2025.

ANALYSIS

Code of Civil Procedure section 2025.450, subdivision (h) provides: “If that party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponent’s testimony would be taken pursuant to that order.”

A.    Motion to Compel Compliance

Plaintiff attests that following the Court’s issuance of Minute Order dated May 24, 2024 – which ordered Defendant to produce its employee, Paul Kangas (“Kangas”), for deposition at a mutually agreeable time within twenty days of notice and to pay monetary sanctions in the amount of $2,100.00 to Plaintiff – her counsel, Theodore Feldsher, emailed Defendant’s counsel, Gene Stone, the Notice of Ruling. (2/3/25 Ortega Decl. ¶ 3.) Plaintiff states that the service of the Notice of Ruling established the 20-day deadline as June 17, 2024. (Mot. at p. 3.)

            On June 11, 2024, Defendant’s counsel sent an email informing Plaintiff’s counsel that Kangas would not appear for deposition by the deadline. (9/19/24 Ortega Decl. ¶ 3, Ex. “A.”) In that email, Defendant’s counsel explained:

“Concerning Mr. Kangas’s availability, we recently learned that he is on vacation for the next two weeks, and cannot be produced prior to the June 13, 2024, deadline. However, he will be available starting the week of June 24, 2024. If you could kindly provide several dates for the week of June 24, 2024, or the week of July 1, 2024, we can select a firm date for his deposition.”

(9/19/24 Ortega Decl. Ex. “A.”)

However, the deposition has not occurred because the parties were unable to agree on a mutually acceptable date. (9/19/24 Ortega Decl. ¶¶ 4-7, Stone Decl. ¶¶ 8-13.)

Notably, Plaintiff does not contest that Defendant has timely paid the Court-ordered monetary sanctions. (Stone Decl. ¶ 7.)

Nevertheless, it is undisputed that Defendant failed to produce its employee, Paul Kangas, for deposition within the timeframe specified in the Court’s May 24, 2024, Order, despite efforts to schedule the deposition afterwards and before the hearing of the Motion. On this record, Defendant has not fully complied with the Court’s order. However, based on the evidence presented, the Court finds that Defendant’s noncompliance was not motivated by bad faith.

Accordingly, the Court GRANTS IN PART the Motion, ordering Defendant to produce its employee, Paul Kangas, for deposition within 15 days.

B.     Monetary Sanctions

Plaintiff seeks monetary sanctions against deponent, Paul Kangas, in the amount of $1,000.00 and against Defendant’s counsel, Gene Stone, in the amount of $1,500.00. (Mot. at p. 5.) Plaintiff cites Code of Civil Procedure sections 177.5 and 128.5 as additional authority. (Ibid.)

Code of Civil Procedure section 177.5 provides: “A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term “person” includes a witness, a party, a party’s attorney, or both. ¶ Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.” (Underlines added.)

Code of Civil Procedure section 128.5 states in relevant part: “A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Underlines added.)

Given that the Court has determined that Defendant’s failure to produce its deponent within the Court-ordered timeframe was not motivated by bad faith, the Court, in its discretion, declines to impose sanctions under these sections at this time.

However, the Court finds that monetary sanctions under Code of Civil Procedure section 2025.480, subdivision (h) are applicable. (Code Civ. Proc., § 2025.480, subd. (h) [“the court may make those orders that are just ...  the court may impose a monetary sanction[.]”) The Court concludes that the sanctions are warranted to compensate Plaintiff for the reasonable fees and costs incurred in bringing this Motion.

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 $1,050.00, calculated based on a reasonable hourly rate of $350.00 for three hours reasonably spent.

Accordingly, the Court GRANTS IN PART Plaintiff’s request for monetary sanctions and imposes sanctions against Defendant in the amount of $1,050.00.

CONCLUSION

Plaintiff Mary Beltran Del Rio’s Motion to Enforce Court’s Order is GRANTED IN PART.

Defendant T.J. Maxx of CA, LLC is ordered to produce its employee, Paul Kangas, for deposition at a mutually agreeable time within 15 days of this order.

Plaintiff Mary Beltran Del Rio’s request for monetary sanctions is GRANTED IN PART.

Defendant T.J. Maxx of CA, LLC and its counsel of record are ordered to pay monetary sanctions, jointly and severally, in the amount of $1,050.00 to Plaintiff within 15 days of this order.

Moving party to provide notice.