Judge Helen Zukin, Case 21SMCV01610 2023-02-10 Tentative Ruling

Judge: Helen Zukin, Case: 21SMCV01610, Date: 2023-02-10 Tentative Ruling

Case Number: 21SMCV01610 Hearing Date: February 10, 2023 Dept: 207

Background

This action arises out of a residential tenancy pursuant to a written lease for premises located at 855 N. Croft Avenue, Apt 303, Los Angeles California 90069. Plaintiff NuNu LLC (“Plaintiff”) is the landlord and rented the subject premises to Defendant Jonathan Khalifa (“Defendant”) and Defendant Jacquaz Khalifa. Plaintiff alleges Defendant failed to pay all owed rent during April 1, 2020, to September 2021. On October 6, 2021, Plaintiff filed its operative First Amended Complaint asserting a sole cause of action for breach of contract. Plaintiff now moves to compel Defendant’s deposition and for monetary sanctions. Plaintiff’s motion is unopposed.

Legal Standard

Code Civ. Proc. § 2025.450(a) provides:

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).)

The motion must “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (C.C.P. § 2025.450(b)(2).) A court shall impose monetary sanctions if the motion to compel is granted unless the one subject to sanctions acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (C.C.P. § 2025.450(g)(1).)

Analysis

1. Defendant’s Deposition

Plaintiff moves to compel the deposition of Defendant. On October 21, 2022, Plaintiff served Defendant with a notice of deposition which contained requests for production of documents. (Ex. A to Forberg Decl.) The parties subsequently agreed to reschedule the deposition to November 15, 2022, and Plaintiff propounded an amended deposition notice on Defendant on October 24. (Ex. B to Forberg Decl.) On November 10, Defendant indicated the deposition would not go forward on November 15 because he was out of the country. (Ex. C to Forberg Decl.) On November 14, 2022, Plaintiff attempted to reschedule the deposition for November 17 or November 18. (Ex. D to Forberg Decl.) Defendant did not respond to Plaintiff’s attempt to reschedule the deposition, and to date the deposition has not gone forward. (Forberg Decl. at ¶5.)

Plaintiff’s evidence demonstrates it has satisfied the meet and confer requirements and is entitled to an order compelling Defendant to appear for deposition. Defendant is ordered to appear for deposition at a time and date to be noticed by Plaintiff pursuant to

Defendant’s evidence demonstrates that it has satisfied the meet and confer requirements and that it is entitled to an order compelling Plaintiff to appear for deposition. Plaintiff is ordered to appear for deposition at a time and date to be noticed by Defendant consistent with the requirements of Code Civ. Proc. § 2025.210, et seq.

2. Sanctions

Code Civ. Proc. § 2023.030(a) authorizes a Court to impose a monetary sanctions on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery. (C.C.P. § 2023.010(d).) Additionally, a Court shall impose monetary sanctions if the motion to compel a deposition is granted unless the one subject to sanctions acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (C.C.P. § 2025.450(g)(1).)

Plaintiff requests the Court sanction Defendant and his counsel, David Bismuth, for Defendant’s failure to appear at deposition. The Court notes Mr. Bismuth substituted out of this case as counsel for Defendant via a substitute of attorney form filed on January 9, 2023, and signed December 14, 2022. On the facts and evidence before it, the Court does not find any basis to impose monetary sanctions against Mr. Bismuth. Defendant’s failure to appear for deposition does not appear to be the result of any actions taken by Mr. Bismuth, but rather Defendant’s own travel out of the country on the date he was supposed to sit for deposition.

However, the Court finds an award of monetary sanctions against Defendant is warranted as Defendant has failed to respond to Plaintiff’s motion or otherwise offer any indication that he acted with substantial justification in refusing to sit for deposition. Plaintiff seeks monetary sanctions of $2,017.50 calculated at 2.5 hours of attorney time at $435.00 per hour to prepare the motion, an expected 1 hour to draft a reply, an additional 1 hour to appear at the hearing on this motion, and the $60.00 filing fee incurred in bringing this motion. (Forberg Decl. at ¶7.) The Court notes Plaintiff’s motion is unopposed and as a result no reply was prepared or filed by Plaintiff. Given the relatively simple and straightforward nature of Plaintiff’s motion, and the lack of any reply briefing, the Court finds $1,000 to be a reasonable sanction. The Court thus GRANTS Plaintiff’s motion to compel Defendant’s deposition and grants Plaintiff’s request for monetary sanctions against Defendant in the amount of $1,000.

Conclusion

Plaintiff’s motion to compel the deposition of Defendant is GRANTED. Plaintiff’s request for monetary sanctions against Defendant is GRANTED in the amount of $1,000, to be paid to counsel for Plaintiff within 20 days of the date of this order. Plaintiff’s request for monetary sanctions against Defendant’s former counsel is DENIED.