Judge: Elaine W. Mandel, Case: 21SMCV00399, Date: 2022-11-07 Tentative Ruling

Case Number: 21SMCV00399    Hearing Date: November 7, 2022    Dept: P

Tentative Ruling

Albinali v. Calvert, et al. Case No. 21SMCV00399

Hearing date November 7, 2022

Defendants’ Motion to Compel Plaintiff’s Deposition

On March 2, 2021, plaintiff filed this action to enforce a 2020 Canadian judgment against her plastic surgeon defendant Calvert and his corporation, defendant Jay Calvert, M.D, APC. Plaintiff alleges the Ontario Superior Court of Justice in Toronto awarded her the Canadian equivalent of $76,954.03. Defendants assert affirmative defenses of offset, equitable recoupment, unclean hands and violation of public policy. On July 20, 2022, plaintiff’s deposition was cut short due to technical difficulties. On September 1, 2022, defendants filed this motion to compel further deposition testimony and request sanctions of at least $3,000.

Plaintiff does not dispute she left her deposition before it was finished and has subsequently not made herself available to complete it. The deposition transcript offered by plaintiff indicates she unexpectantly lost connection, and counsel agreed to complete the deposition at a later date. Sohigian Decl., Ex. D, 123:20-25. Instead, plaintiff argues many of the questions were improper or otherwise objectionable. Plaintiff’s counsel can object to questions or can move for a protective order limiting the scope of the deposition. Motion GRANTED. Deposition to be scheduled within 20 days, or by agreement of the parties.

Defendants deposed plaintiff for 3 hours and 27 minutes, so may depose plaintiff for no more than an additional 3 hours and 33 minutes without further court order. See Code Civ. Proc. §2025.290 [“a deposition examination…shall be limited to seven hours of total testimony.”]

“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(g)(1).

Defendants ask for sanctions of “at least $3,000.” Motion, 10:11. The declaration states this motion and hearing will cost “in excess of $6,900” in fees. Totino Motion Decl. ¶ 19. In the reply and accompanying declaration, defendants state this motion and hearing will cost “in excess of $15,000” in fees. Totino Reply Decl. ¶ 3.

Defendants fail to provide a billing rate or an accounting of hours—much less an explanation for the inconsistencies. Without this evidence, the court is unable to determine reasonable attorney’s fees. Request for sanctions is DENIED.