Judge Holly J. Fujie, Case Number: 19STCV34550, Date: 2024-11-21 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

On September 8, 2020, Plaintiffs filed the operative Second Amended Complaint (“SAC”) against Defendants CIL, Jane’s Management Systems, LLC, Magic Properties, Inc., Cui, John Ko (“Ko”) and David Yoo (collectively, “Defendants”) and DOES 1 through 10, inclusive for: (1) Breach of Contract; (2) Breach of The Covenant of Repair; (3) Contractual Abatement of Rent; (4) Fraud and Deceit; (5) Fraudulent Concealment; (6) Conspiracy to Defraud; (7) Negligent Misrepresentation; (8) Breach of Fiduciary Duty; (9) Intentional Interference with Prospective Economic Advantage; and (10) Unfair Business Practices.

The SAC alleges Defendants deliberately concealed a roof leak on the subject premises prior to Plaintiffs’ tenancy and refused to repair the leak. (Compl., § IV, ¶¶21-37.)

On September 30, 2024, Plaintiffs filed the instant motion to compel deposition of Defendant Cui and production of documents (the “Cui Motion”). On November 7, 2024, Defendant Cui filed an Opposition to the Cui Motion. On November 14, 2024, Plaintiffs filed a Reply.

“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.” (Code Civ. Proc., § 2025.450, subd. (a) (emphasis added).)

Pursuant to Code of Civil Procedure Section 2025.450, subdivision (b), “A motion under subdivision (a)… 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 Civ. Proc., § 2025.450, subd. (b).)¿

Here, Plaintiffs’ counsel Tatian Ingman (“Ingman”) attests to meet and confer efforts made to prior to the filing of this motion and inquiry about the nonappearance of Defendant Cui for deposition. (Ingman Decl., § C, ¶¶60-119, Exs. V-BB.)

Plaintiffs move for an order compelling Defendant to produce for deposition its managing agent Defendant Cui and produce requested documents on October 14, 2024. As a preliminary matter, the Court notes that Defendant Cui asserts he appeared for deposition on November 5, 2024 per agreement of the parties and stipulation entered by the Court. (Bjorgum Decl., Ex. A.) Plaintiff concedes the requested deposition took place but argues the motion is not moot because Defendant Cui failed to produce the requested documents. As such, the only issue for the Court to consider is whether Defendant Cui should be compelled to produce the requested documents.

Here, Defendant Cui contends he timely served objections to the requests for production. (Bjorgum Decl., Ex. B.) Although Defendant Cui cites to the declaration of his counsel Eric Bjorgum, the declaration is not attached to the opposition nor concurrently filed with the Court. As such, the Court cannot assess the validity of Defendant Cui’s assertion that he timely served objections nor the merit of these alleged objections. Similarly, Defendant Cui argues he personally has no responsive documents and testified to this fact at his deposition because he is not involved in the day-to-day details of maintenance. On the other hand, Plaintiffs contend the actual evidence shows that Defendant Cui has testified that he has responsive documents that he has not produced and never looked for other documents he believes that he has that would be responsive.

The Court finds that good cause exists to compel the production of the requested documents. Plaintiffs have submitted evidence demonstrating Defendant Cui testified to having a copy of the signed purchase agreement, which Plaintiffs have requested. (Ingman Reply Decl., ¶13, Ex. B.) Likewise, Defendant Cui testified to having a specific email address that he uses for communications with Defendant Ko concerning important information, which he does not delete and Plaintiffs have requested all communications between Cui and Ko pertaining to the subject premises. (Id. at ¶14, Exs. C-D.) Plaintiffs assert there is at least one email in particular that is important to their claims because it relates to the roofer Defendant CIL eventually hired to repair the roof and cover up its prior condition. (Reply 3:17-20.) Moreover, Plaintiffs are entitled to take an additional session of Cui’s deposition as to the documents once produced.

Therefore, the Court GRANTS Plaintiffs’ Cui Motion insofar as it seeks to compel the further deposition of Defendant Cui and further GRANTS it insofar as it requests the production of documents.

Defendant Cui is ordered to produce the requested documents to Plaintiffs within twenty days of this order and to appear for a further session of his deposition on the subject of said produced documents within twenty days after said production..

On September 23, 2024, Plaintiffs filed the instant motion to compel deposition of person most qualified and production of documents (the “PMQ Motion”). The PMQ Motion is unopposed.

Here, Plaintiffs’ counsel Ingman attests to meet and confer efforts made to prior to the filing of this motion and inquiry about the nonappearance of Defendant CIL’s person most qualified (“PMQ”) for deposition. (Ingman Decl., § C, ¶¶60-119, Exs. Y-BB.)

Plaintiffs move for an order compelling Defendant CIL to produce for deposition at a date, time, and location selected by Plaintiffs its PMQ and produce requested documents including text messages between Defendant Ko and witnesses to the events at issue in this case, faxes to and from witnesses relating to the property, invoices regarding repairs to the roof done since Defendant Cui purchased the property, etc. (Ingman Decl., ¶¶40-44, 120-128.) Plaintiffs argue these documents were requested in the deposition notice served on Defendant CIL on June 6, 2024. Furthermore, Plaintiffs assert the Court has already ordered Defendant CIL to produce these documents, thus failure to produce the documents constitute willful disobedience. Plaintiffs also assert production of these documents is relevant to the claims made by Plaintiffs and defenses asserted by Defendants.

The Court finds that good cause exists to compel the deposition of Defendant CIL’s PMQ and production of the requested documents. First, the Court notes its prior ruling on December 14, 2023, wherein Defendant CIL was ordered to produce documents responsive to the request for a prior scheduled deposition on December 17, 2023. (Ingman Decl., ¶23, Ex. K.) Plaintiffs contend those documents are the same as the ones requested in the latest deposition notice. (Mot. at 7:9-8:1.) Defendant CIL has not opposed this instant motion to dispute this contention. Moreover, Defendant CIL failed to timely object to the deposition notice served on June 6, 2024. Specifically, the deposition was noticed for Tuesday, July 23, 2024, thus Defendant CIL had to have objected by July 18, 2024 because that would be three days before the deposition date per Code of Civil Procedure Section 2025.410, subdivision (a). Defendant CIL served its objections on July 19, 2024. (Ingman Decl., ¶79, Ex. X.) These objections were served late despite Plaintiffs’ counsel inquiries regarding nonappearance on late June and early July. (Id. at ¶¶60-70.)

If a motion under Code of Civil Procedure¿2025.450, 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. (Code Civ. Proc., §¿2025.450, subd. (g)(1).)

Here, Plaintiffs’ counsel Ingman seeks a total of $12,471.50 in monetary sanctions against Defendant CIL for (1) 25.0 hours meeting and conferring with opposing counsel, preparing the moving papers, and preparing the supporting declaration @$275.00/hr (Ingman), 15.0 hours of assistance with moving papers @$125/hr (Contract Counsel), and 20.0 hours of assistance with declaration @$80/hr (Administrative Assistant); (2) 5.0 hours in anticipation of preparing a reply brief and participating in a hearing; and $746.50 in costs consisting of $60.00 filing fee and $686.50 court-reporter transcript of July 23, 2024. The motion is unopposed. The Court does not award sanctions for meet and confer efforts, and it exercises its discretion in awarding 4 hours for preparing the moving papers including the supporting declaration, as well as .5 hour for attending the hearing, for a total of 4.5 hours at Ingman’s rate of $275, for a total attorney’s fee award of $1,237.50, plus $60 for the filing fee, for a total of $1,297.50, to be paid by Defendant CIL to Plaintiffs within twenty days of the date of this order.

Therefore, the Court GRANTS Plaintiffs’ PMQ Motion. Defendant CIL is ordered to produce its PMQ and the requested documents for deposition at a date, time, and location selected by Plaintiffs within twenty days of the date of this order, and to pay Plaintiffs $1,297.50 in sanctions within twenty days of the date of this order.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court