Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Plaintiff Roberto Soofiani 

 

RESPONDING PARTY: Defendants Don Chuy’s Restaurant LLC, Jose Jesus Flores and Katherine Flores 

 

BACKGROUND 

 

This case arises from a landlord tenant dispute.  Plaintiff Roberto Soofiani owns property located on Jefferson Blvd in Los Angeles.  Soofiani alleges that he entered into a lease (“Lease”) with Defendant Don Chuy’s Restaurant LLC (the “LLC”).  Defendants Jose Jesus Flores and Katherine Flores (collectively “the Flores”) are managing members of the LLC.  Soofiani alleges that when Defendants surrendered the leased premises, there was significant damage and equipment that had been removed.  Trial is set for March 25, 2024.   

This case is one of three matters between these parties that are pending in the Santa Monica and Beverly Hills Courthouses.  In the second case (Soofani v. Jose Flores, Sr. And Katherine Flores (Case No. 22SMCV00024), Soofiani sues on the Flores’ personal guarantee of the Lease.  The case is currently before Judge Mark Young in Department M of the Santa Monica courthouse and is set for trial on October 16, 2023.   

In the third case (Don Chuy’s Restaurant LLC v. Caffe Roberto, Inc., Case No. SC129269), Defendants sued Soofiani for breach of the lease and other causes of action.  The case is before Judge Elaine Mandel in Department P of the Santa Monica Courthouse and was in trial as of the filing of the instant motion.      

To prepare for the trial on this case and 22SMCV00024, Plaintiff noticed the deposition of Jose Flores Jr. (“Junior”), the son of the Flores.  Plaintiff argues that Junior has relevant knowledge because he oversaw the buildout of the restaurant property and can testify to the condition of the Property at the time Defendants assumed possession.  Junior was also an employee of Defendants, managed the restaurant after it opened, is the Secretary of the LLC, and is a percipient witness to events that caused Plaintiff’s alleged damages during Defendants’ moveout.  

Defendants’ counsel initially stated that he would make Junior available for deposition.  (Ex. 1 to Rich Decl.)  But when Plaintiff asked for dates, Defendants never responded.  (Ex. 2 to Rich Decl.)  Plaintiff served their first notice of deposition of Junior.  No objections to the notice were served by Defendants.  (Ex. 3 to Rich Decl; Rich Decl. ¶4.)  Defendants failed to inform Plaintiff that Junior would not appear until after the period when cancellation fees would be incurred.  (Ex. 4 to Rich Decl.)  A certificate of non-appearance was obtained after the witness failed to appear.  (Ex. 6 to Rich Decl.)  Defendants claim Junior failed to appear due to illness.  (Phillips Decl. ¶4.) 

Thereafter, Plaintiff’s counsel asked for additional dates, but Defendants never responded.  Plaintiff sent Defendants meet and confer correspondence on a motion to compel and for sanctions.  Again, Defendants did not respond.  (Ex. 8 to Rich Decl.) 

The Court conducted an informal discovery conference (“IDC”) and ordered Defendants to provide dates for Junior’s deposition within two weeks.  (Ex. 9 to Rich Decl.)  Thereafter, Defendants wrote Plaintiff stating that Junior was available on July 6, 7, 10, and 11.  (Ex. 10 to Rich Decl.)  Plaintiff served another notice of deposition for July 7.  (Ex. 11 to Rich Decl.)  No opposition to the notice was served by Defendants.  (Rich Decl. ¶9.)   

A day before the deposition was to go forward, on July 6, counsel for Defendants raised for the first time an objection that Plaintiff was trying to get Junior’s testimony to use at the trial which was then ongoing before Judge Mandel. (Ex. 13 to Rich Decl.)  Plaintiff assured Defendants it had no intention to do so, and indeed, Junior had already testified at the trial.  (Ex. 14 to Rich Decl.)  On July 7, Junior failed to appear for his deposition and another certificate of non-appearance was obtained.  (Ex. 15 to Rich Decl.)   

This hearing is on Plaintiff’s motion to compel the deposition of Junior.  Plaintiff argues Junior’s testimony is relevant, and indeed, Defendants failed to serve any objections to the notices of deposition and thus waived any objections to the taking of the deposition.  Plaintiff also argues that he is entitled to sanctions because Defendants failed to comply with a court order requiring Junior to sit for deposition.               

LEGAL STANDARD 

 

“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).)¿¿¿ 

“If a 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.” (Code Civ. Proc., § 2025.450, subd. (g).)¿¿¿ 

 ANALYSIS 

 

After a hearing on April 27, 2023, this Court issued a minute order that directed Defendants’ counsel to provide dates for the deposition of Junior.  After agreeing to a date, Defendants failed to comply with the Court’s order by failing to produce Junior for deposition.   

Defendants’ belated claim that Plaintiff is seeking the deposition to use at the trial before Judge Mandel is waived.  Defendants never objected to the notices of deposition.  Nor did they raise their objection during the IDC.  Defendants also failed to seek a protective order.  In any event, trial in the other case has concluded, and Defendants now claim they are willing to produce Junior “immediately.”   

Defendants argue that Plaintiff should have initiated another IDC to resolve Defendants’ objection that Plaintiff was seeking to take the deposition of Junior for use at another trial.  But there was already an IDC on the issue of Junior’s deposition.  Plaintiff was not obligated to initiate another IDC based on Defendants’ shifting reasons to delay the deposition.  

Defendants also argue that Plaintiff did not meet and confer with Defendants prior to filing the instant motion.  But Defendant refused to have Junior sit for a deposition on a date to which they previously agreed.  There was no indication that Defendants’ position would change based on a further meet and confer.   

This case is unlike Obregon v. Superior Court (1998) 67 Cal.App.4th 424, where defendant served further responses and objections a day prior to plaintiff’s filing a motion to compel further responses, and plaintiff failed to make any further contact with defense counsel.  The trial court found that plaintiff's efforts at informal resolution were inadequate, denied the motion, and imposed sanctions on her.  The appellate court denied the writ in part, finding that the trial court properly found that plaintiff’s efforts were inadequate.  Plaintiff propounded grossly overbroad interrogatories and sent a single brief resolution letter.  The appellate court granted the writ in part by vacating the denial of plaintiff’s motion to compel further response to the interrogatories.  The trial court was directed to hold a hearing to decide whether the denial of the requested discovery or some lesser sanction was the proper remedy for Plaintiff’s insufficient efforts.   

Unlike Obregon, prior to the filing of the instant motion, Defendants here did not back down from their position that they would not produce Junior for deposition on a date they previously agreed or otherwise offer to go forward with the deposition, with reasonable substantive limitations.                

Pursuant to Code Civ. Proc., § 2025.450(g), the Court must impose a monetary sanction in favor of the party who noticed the deposition unless there is substantial justification or other circumstances that make the imposition of the sanction unjust.  The Court concludes there is no substantial justification nor would sanctions be unjust under these circumstances, where Defendants never objected to the notices of deposition; the Court ordered Defendants to have Junior sit for deposition, and Junior failed to appear for his deposition on a date to which he previously agreed.  

The Court next considers the reasonableness of the monetary sanctions requested.  The Court applies the¿lodestar method to determine the amount of sanctions that is reasonable.  (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) ¿The Court obtains the lodestar amount by multiplying the reasonable number of hours worked by the reasonably hourly rate.  (Id.) 

Plaintiff’s counsel charges an hourly rate of $400.  (Rich Decl. ¶11.)  The Court concludes that this hourly rate is reasonable and in line with rates charged by attorneys in the Southern California legal market. (Vasquez v. Cent. Basin Mun. Water Dist., 2023 Cal. Super. LEXIS 2771 at * 4¿($400 represents a¿reasonable hourly rate);¿Martinez v. Fca Us Llc Imaged, 2019 Cal. Super. LEXIS 54862 at *2¿($400¿is a¿reasonable hourly rate);¿Brandon v. Robert J. McHarris, D.D.S., 2019 Cal. Super. LEXIS 50438¿(finding $400 hourly rate reasonable).) 

Counsel attests he spent 3 hours to prepare for the depositions, .6 hours to meet and confer, and 6.2 hours to prepare the instant motion.  Counsel anticipates an additional 1.5 hours to respond to any opposition and an additional hour to appear at any hearing on the motion.  The Court concludes these hours are reasonable. 

Plaintiffs also seek costs associated with the certificate of non-appearance as well as filing fees, in the amount of $1,571.  The Court finds these costs are reasonable.  

Therefore, the Court awards sanctions in the total amount of $6,491 in favor of Plaintiff and against Defendants.   

CONCLUSION 

Based on the foregoing, the Court GRANTS Plaintiff’s motion to compel deposition and awards sanctions in the amount of $6,491 in favor of Plaintiff and against Defendants.   

DATED:  August 15, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court