Judge: Elaine Lu, Case: 21STCV22062, Date: 2022-08-04 Tentative Ruling





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Case Number: 21STCV22062    Hearing Date: August 4, 2022    Dept: 26

 

 

Superior Court of California

County of Los Angeles

Department 26

 

 

sahil saini, and PRAGATI SHARMA,

                        Plaintiffs,

            v.

 

Fariba khoubian, et al.,

                        Defendants.

 

  Case No.: 21STCV22062

 

  Hearing Date:  August 4, 2022

 

  [TENTATIVE] order RE:

PLaintiffs’ motion to compel the deposition of Defendant

 

 

Procedural Background

On June 11, 2021, Plaintiffs Sahil Saini (“Saini”) and Pragati Sharma (“Sharma”) (jointly “Plaintiffs”) filed the instant breach of habitability action against Defendant Fariba Khoubian (“Defendant”).  The complaint asserts seven causes of action for (1) Private Nuisance, (2) Breach of the Implied Warranty of Habitability, (3) Breach of the Statutory Warranty of Habitability, (4) Breach of Quiet Enjoyment, (5) Negligence, (6) Breach of Contract, and (7) Violation of Business and Professions Code § 17200.  

On June 29, 2022, Plaintiff Saini filed the instant motion to compel Defendant’s deposition.  No opposition or reply has been filed.

 

Legal Standard

“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. 

 

  1. 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 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).) 

 

Meet and Confer

Code of Civil Procedure § 2025.450 requires the motion to be accompanied by a meet and confer declaration under Code of Civil Procedure § 2016.040.  (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]hen 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, Plaintiffs have adequately met and conferred.  (Rose Decl. ¶ 2-4, Exhs. A-B.)

 

Discussion

            On April 4, 2022, Plaintiff Saini served by mail the first amended deposition notice for Defendant seeking Defendant’s deposition on April 26, 2022.  (Rose Decl. ¶ 2, Exh. A.)  On April 19, 2022 and April 26, 2022, Plaintiffs’ Counsel emailed Defendant to confirm the April 26, 2022 deposition.  (Rose Decl. ¶ 3, Exh. B.)  However, Defendant did not respond to the deposition or request to reschedule the deposition.  (Rose Decl. ¶¶ 3-4.)

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

 

Sanctions

Here, sanctions were not requested in the notice.  Therefore, no sanctions can be awarded.  (CCP § 2023.040, [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”].)

 

CONCLUSIONS AND ORDER

For the foregoing reasons, Plaintiff Sahil Saini’s motion to compel the deposition of Defendant Fariba Khoubian is GRANTED.  Defendant Fariba Khoubian 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 Plaintiff Sahil Saini.

Moving Party is to provide notice and file proof of service of such.

 

DATED: August 4, 2022                                                        ___________________________

                                                                                    Elaine Lu

                                                                                    Judge of the Superior Court