Judge: Elaine Lu, Case: 19STCV36468, Date: 2023-12-11 Tentative Ruling

Case Number: 19STCV36468    Hearing Date: December 11, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

DEFENDANTS’ appliCation to compel plaintiffs’ deposition

Compelling Plaintiffs’ Depositions

On November 16, 2023, Defendants filed the instant ex parte application to compel both Plaintiffs to appear for deposition and produce documents.  At the November 20, 2023 hearing on Defendants’ ex parte application, the Court set the following briefing schedule to provide Plaintiffs with an opportunity to respond:  “Defendant's ex parte application to compel Plaintiffs' depositions is continued to 12/11/23 at 8:30 am. Any opposition to Defendant's ex parte application to compel Plaintiffs' depositions must be filed and served no later than November 29, 2023 at 8:30 am. Any reply must be filed and served by 12/4/23.” (11/20/23 Minute Order.)  Despite having been afforded an opportunity to do so, Plaintiffs have not filed any opposition.

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action.  The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”  (CCP § 2025.010.) 

Code of Civil Procedure § 2025.450(a) provides: “If, after service of a deposition notice, a party to the action . . . , 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 . . . 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 . . . described in the deposition notice.”

Code of Civil Procedure § 2025.450(b) provides: “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, 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.”

Here, Defendants have satisfied these requirements. Neither Plaintiff has appeared for any of the four noticed depositions.  Nor has either Plaintiff identified a reason for his failure to appear.  The Court finds that both Plaintiffs have failed to comply with the deposition notices, and no valid objections were made.

The motion by Defendants SHYBARY GRAND, INC. and DTLA MANAGEMENT, LLC to compel the deposition of both Plaintiffs, SHAIVAL SHAH, and NIRAJ SHAH, is GRANTED.  (CCP § 2025.450(a).)

Plaintiffs SHAIVAL SHAH, and NIRAJ SHAH are each ordered to appear for a deposition within thirty (30) days of notice of this order at a date and time noticed by Defendants.

Sanctions

If a motion to compel deposition “is granted, the court shall impose a monetary sanction . . . 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.”  (CCP § 2025.450(c), [italics added].)  Thus, sanctions are mandatory unless circumstances make the imposition of sanctions unjust. 

Here, no sanctions may be awarded because the moving papers failed to give notice of the amount of sanctions sought or against whom Defendants are seeking sanctions. 

william bowen’s motion to be relieved as counsel

Plaintiff’s counsel, William Dalebout Bowen (“Counsel”), moves to be relieved as counsel of record for Plaintiff Shaival Shah (“Client”).  Counsel filed the instant motion to be relieved as counsel on November 15, 2023.  (On the same date of November 15, 2023, Counsel filed a second motion to be relieved as counsel for Plaintiff Niraj Shah as well, but that second motion to be relieved is moot because on December 4, 2023, a substitution of counsel was filed on behalf of Niraj Shah as a result of which Niraj Shah is now self-represented.)

Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 pursuant to CRC Rule 3.1362.

Counsel served Client at Client’s last known mailing address, which Counsel states he has confirmed as current within 30 days of the motion by telephone. Counsel also served this motion on all other parties in the case.

Counsel states that there has been a break down in the attorney client relationship so that it is unreasonably difficult for Counsel to effectively carry out the client’s representation.

Prior to the hearing, Counsel must efile a corrected proposed order on form MC-053. Based on the notice of motion and the declaration filed by counsel, the Court is inclined to grant the motion. However, the proposed order lodged with the Court has not been properly completed.

The proposed order must list Client’s address for service in item 6. The proposed order must also identify all upcoming hearings and list the address of the Court in all items.  The Court’s records show the following upcoming hearings, which should all be listed in the proposed order:

-       In item 7 (next scheduled hearing): “Final Status Conference (Jury Trial) set for February 21, 2024 at 9:00 am at 111 N. Hill St., Dept. 26, L.A., CA 90012.” 

-       In item 9: “Trial set for March 4, 2024 at 8:30 am at 111 N. Hill St., Dept. 26, L.A., CA 90012.”  In Item 9, Counsel must also include the following language “Failure to appear at trial will result in dismissal of this action.”

Item 13:  “Plaintiffs SHAIVAL SHAH and NIRAJ SHAH are each ordered to appear for   deposition within thirty (30) days of notice of this order at a date and time noticed by Defendants.  Failure to comply may result in monetary, evidentiary, issue, or terminating sanctions.  Moving Counsel is ordered to serve all parties, including Client, with a copy of this signed order and file proof of service of such within three days.”

Counsel is responsible for determining if there are any other hearings scheduled or due dates for discovery for this case, including any motions hearings, which must all be listed in the proposed order.  For each hearing, Counsel must state the date, time, and location of the hearing including the address and Department number as follows: “111 N. Hill St., Dept. 26, L.A., CA 90012.”  For each due date for discovery, Counsel must identify the nature of the discovery responses that are outstanding, the due date, and the address where verified responses must be sent.

Provided that Counsel presents a corrected proposed order at or before the hearing on this motion, the motion to be relieved as counsel will be granted. 

Counsel should note that after the order is signed, the order will only become effective upon the filing of a proof of service of a signed copy of the order on Plaintiff. Counsel will remain the attorney of record until Counsel files with the Court proof of service of the signed order. Counsel will be ordered to serve a copy of the signed order (MC-053) on Plaintiff within three days.

            Moving Counsel is ordered to provide notice of this order and file proof of service of such.

DATED: December ___, 2023                                               ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court