Judge: Frank M. Tavelman, Case: 23BBCV01126, Date: 2024-09-13 Tentative Ruling

Case Number: 23BBCV01126    Hearing Date: September 13, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL DEPOSITION

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS:

Sosy and Harout Sandaljian (Plaintiffs) bring this action against Vilma M. Baquir and Emiliano D. Baquir, Jr. (Defendants). Plaintiffs allege that Defendants capped a drain pipe on Plaintiffs’ property which subsequently caused water to pool under their home. Plaintiffs allege Defendants’ impeded access to the drain pipe. Plaintiffs allege a number of damaging consequences resulted from the pooling of the water.

Before the Court is a motion brought by Plaintiffs to compel the deposition of Defendant Emiliano D. Baquir Jr. (Emiliano). Defendants have rendered no opposition to this motion.

ANALYSIS:

I.                    LEGAL STANDARD 

Failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. CRC Rule 8.54(c)

“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.” (C.C.P. § 2025.450(a).)

I.                    MERITS

As noted above, a failure to oppose a motion is an indication that the motion has merit.  Here, Plaintiffs state that they unilaterally noticed the deposition of Emiliano after their meet and confer attempts with Defendants’ counsel were met with silence. Plaintiffs’ counsel sent several emails to counsel soliciting deposition dates but received no response. (Euredjian Decl. ¶ 6, Exh. 3.) On February 16, 2024, Plaintiffs noticed the deposition of Emiliano for March 7, 2024. (Euredjian Decl. ¶ 7, Exh. 4.)

On March 1, 2024, counsel for Defendants, Joseph Kang (Kang), emailed Plaintiffs’ counsel. (Euredjian Decl. ¶ 8.) This email purported to attach Emiliano’s objection to the noticed deposition, but no attachments were present. (Id.) Eventually Plaintiff’ counsel received the objections and began working with Kang to secure mutually agreeable dates. (Euredjian Decl. ¶ 9.) Throughout March 2024, Plaintiffs’ counsel contacted Kang several times via email, but received no response and were given no deposition dates. (Id.)

On April 29, 2024, Plaintiffs’ counsel once again noticed the deposition of Emiliano, this time to occur on May 29, 2024. (Euredjian Decl. ¶ 10, Exh. 6.) While Emiliano served a response to Request for Production of Documents at Deposition, he served no objections to the appearance. (Euredjian Decl. ¶ 11, Exh. 9.) On May 29, 2024, neither Emiliano nor his counsel appeared for the deposition. (Euredjian Decl. ¶ 11.) Plaintiffs’ counsel reached out to Kang, who stated that he had confused this deposition date for one in another case. (Id.) Despite contacting Kang’s supervising attorney and several more attempts to schedule Emiliano’s deposition, Plaintiffs received no proposed dates. (Euredjian Decl. ¶¶ 13-15.)

On June 17, 2024, Plaintiffs once again noticed the deposition of Emiliano, this time for July 12, 2024. (Euredjian Decl. ¶ 14.) On July 10, 2024, Kang emailed Plaintiffs’ counsel to inform them that Defendants were unavailable as they were out of the country until October 24, 2024. (Euredjian Decl. ¶ 14, Exh. 10.)  Kang also informed that he was leaving the firm. (Id.)  On July 11, 2024, Plaintiff spoke again with Kang’s supervising attorney, who informed that Emiliano would not attend the noticed deposition the following day. (Euredjian Decl. ¶ 15, Exh. 12.)

Given the foregoing, the Court finds Plaintiffs have demonstrated that Emiliano failed to proceed with the duly noticed deposition despite multiple attempts to meet and confer with Plaintiffs’ counsel regarding the nonappearance. (C.C.P. § 2024.450(a), (b)(2).) Accordingly, Plaintiffs’ unopposed motion to compel the deposition of Emiliano is GRANTED. The deposition shall take place within the next 30 days.

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. (C.C.P. § 2025.450(g)(1).)

Plaintiffs’ counsel estimates that seven hours were spent in attempting to conduct Plaintiffs’ deposition and preparing this motion at the hourly rate of $495. (Euredjian Decl. ¶ 18.) Plaintiffs’ counsel further states that they incurred a $60 filing fee for this motion and $873.00 in court reporter fees for the July 12, 2024 non-appearance. (Euredjian Decl. ¶ 19.) As such, the Court awards sanctions in the amount of $4,398 ((7 x 495 = $3,465) + 60 + 873 = $4,398). This amount does not account for the time estimated in preparing a reply as the motion was not opposed and no reply was filed. Sanctions are awarded jointly and severally against his prior counsel Joseph Kang and the law firm joint and several..

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Sosy and Harout Sandaljian’s Motion to Compel the Deposition of Emiliano D. Baquir Jr. came on regularly for hearing on September 13, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL THE DEPOSITION OF DEFENDANT EMILIANO D. BAQUIRJR. IS GRANTED.

SANCTIONS ARE AWARDED IN THE AMOUNT OF $1,000 AS AGAINST DEFENDANT EMILIANO D. BAQUIR AND HIS COUNSEL JOSEPH KANG AND HIS FIRM THE LAW OFFICERS OF SCOTT STRATMAN, JOINTLY AND SEVERALLY.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFFS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  September 13, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles