Judge Elaine Lu, Case 20STCV14383 2023-03-10 Tentative Ruling

On April 4, 2020, Plaintiff Selena Gomez (“Plaintiff”) filed the instant right of publicity action against Defendants Forgame US Corporation; Forgame Holdings Limited; Mutantbox Interactive Limited; Guangzhou Feidong Software Technology Co., LTD.; Guangzhou Feiyin Information Technology Co., LTD.; Guangzhou Jieyou Software Co., LTD; Dongfeng Wang; Na Liang; and Roy Liu. The complaint asserts two causes of action for (1) Violation of and Conspiracy to Violate Statutory Right of Publicity and (2) Violation of and Conspiracy to Violate Common Law Right of Publicity.

On February 22, 2023, Defendant Dongfeng Wang (“Wang”) filed the instant motion to compel the deposition of Plaintiff. On February 24, 2023, the Court granted Defendant Wang’s ex parte application to advance the instant motion advancing the instant motion to March 10, 2023. On March 6, 2023, Plaintiff filed an opposition. On March 8, 2023, Defendant Wang filed a reply.

“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:

Code of Civil Procedure § 2025.450(c) provides, “(1) If a motion under subdivision (a) 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.”

Under Code of Civil Procedure § 2023.030(a), “[t]he 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.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (CCP § 2023.010(d).)

Code of Civil Procedure § 2025.450(b)(2) requires the motion to be accompanied by a meet and confer declaration under Code of Civil Procedure § 2016.040,[1] 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.” (CCP § 2025.450(b)(2).)

As discussed in detail below, Defendant Wang has adequately met and conferred. (Linzer Decl. ¶¶ 2-15, Exhs. A-L.)

On January 5, 2023, Defense Counsel emailed Plaintiff’s Counsel with five proposed dates for Plaintiff’s deposition. (Linzer Decl. ¶ 2, Exh. A.) After receiving no response, on January 6, 2023, Defense Counsel again emailed Plaintiff’s Counsel suggesting dates for a deposition of Plaintiff. (Linzer Decl. ¶ 3, Exh. B.) After receiving no response, on January 9, 2023, Defense Counsel emailed Plaintiff’s Counsel for a third time suggesting dates for a deposition of Plaintiff. (Linzer Decl. ¶ 4, Exh. C.)

After hearing no response, later that day on January 9, 2023, Defense Counsel issued a deposition notice for Plaintiff set for February 22, 2023. (Linzer Decl. ¶ 5, Exh. D.) After the deposition notice was issued, on January 9, 2023, Plaintiff’s counsel responded stating that the deposition will not proceed as unilaterally noticed and that only two business days had passed since Defense Counsel first asked to depose Plaintiff. (Linzer Decl. ¶¶ 6-7, Exh. E.) Later that day, on January 9, 2023, Defense Counsel responded again requesting a deposition date. (Linzer Decl. ¶ 8, Exh. F.)

On January 19, 2023, Defense Counsel sent a letter requesting Plaintiff’s availability for a deposition and offering to withdraw the deposition noticed for February 22, 2023 if Plaintiff’s Counsel would provide dates when Plaintiff would be available to be deposed. (Linzer Decl. ¶ 9, Exh. G.) After hearing no response from Plaintiff’s Counsel, on January 26, 2023, February 14, 2023, and February 17, 2023, Defense Counsel sent letters requesting Plaintiff’s availability for a deposition. (Linzer Decl. ¶¶ 10-12, Exh. H-J.) On February 17, 2023, Defense Counsel sent a follow-up email inquiring as to whether Plaintiff would appear for the noticed deposition on February 22, 2023. (Linzer Decl. ¶ 13, Exh. K.) Plaintiff’s Counsel responded by emails stating that Plaintiff “would not show up for the February 22, 2023 deposition because the deposition date was unilaterally selected, and that he would respond substantively on Tuesday, February 21, 2023.” (Linzer Decl. ¶ 14, Exh. L.) However, as of filing the instant motion on February 22, 2023, Plaintiff’s Counsel has not provided any available dates for a deposition.

In opposition, Plaintiff claims that “Defendant’s Motion is moot, and so should be denied, because Plaintiff has now offered at least four dates for her deposition: March 29, 2023 (which Defendant’s counsel rejected because of Defendant’s unavailability); April 15, 2023; April 22, 2023; and April 23, 2023.” (Opp. at p.1:13-15.) However, Plaintiff delayed until after Defendant filed the instant motion before Plaintiff proposed these dates. Moreover, these dates are after the discovery cut-off as the instant action is set for trial on May 8, 2023. Accordingly, the provided dates do not moot the instant motion.

As there is no valid objection to the notice of the deposition, and Plaintiff has failed to appear at a noticed deposition, Defendant Wang’s motion to compel the deposition of Plaintiff is GRANTED.

Defendant Wang seek sanctions of $17,312.00 against Plaintiff and Plaintiff’s counsel of record to compensate Defendant for the attorney fees and costs in bringing the instant motion. Defense Counsel claims that 8.2 hours were spent sending emails requesting deposition dates, 6.4 hours were drafting the instant motion, and an anticipated 7 hours would be spent on the reply and preparing for and appearing at the hearing at claimed hourly rates of $895 and $695 an hour. (Linzer Decl. ¶¶ 19-21.) Further, Defendant Wang incurred $60.00 in costs for filing the instant motion. (Linzer Decl. ¶ 22.)

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. Moreover, the failure to respond to authorized discovery is an abuse of the discovery process. (CCP § 2023.010(d); Cal. Rules of Court, Rule 3.1348(a).)

Here, Plaintiff has failed to comply with at least one deposition notice and failed to provide dates for depositions until after Defendant filed the instant motion. The imposition of sanctions would not be unjust. However, the Court finds that the total amount requested – $17,312.00 – is unreasonable in view of the totality of the circumstances, especially given the simple nature of the instant motion and claimed experience of Defense Counsel. Accordingly, the Court finds that $2,200.00 reasonably compensates Defendants for the attorney’s fees incurred in bringing this motion.

Plaintiff Selena Gomez and her counsel of record, Wilkie, Farr & Gallagher LLP., are jointly and severally liable and ordered to pay monetary sanctions in the amount of $2,200.00 to Defendants Dongfeng Wang by and through counsel, within thirty (30) days of notice of this order.

For the foregoing reasons, Defendant Dongfeng Wang’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Selena Gomez is ordered to appear for deposition and produce the noticed documents within fifteen (15) days of notice of this order at a date and time noticed by Defendant.

[1] . (CCP § 2025.450.) Code of Civil Procedure § 2016.040 provides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.) “[W]

Superior Court of California

County of Los Angeles

Department 26