Judge Holly J. Fujie, Case 21STV14551 2022-10-13 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.

This action arises out of an employment relationship. On August 15, 2022, Plaintiff filed a motion to compel Habib’s deposition (the “Motion”).

Under CCP section 2025.450, where a deponent fails to attend a deposition and produce documents, an opposing party can ask the court to order the deponent’s attendance and testimony at a deposition, as well the production of the documents specified in the deposition notice. The motion must include: (1) facts showing good cause justifying the production of documents; and (2) where a deponent fails to attend the deposition and produce the documents, a declaration must accompany the motion indicating that the party seeking the order to compel contacted the deponent to inquire about the deponent’s nonappearance. (CCP § 2025.450, subd. (b)(1)-(2).)

Habib’s deposition was originally noticed for August 10, 2021. (Declaration of Guile Gomez (“Gomez Decl.”) ¶ 4, Exhibit 1.) Habib requested that the deposition be rescheduled and on May 11, 2022, Plaintiff sent a second notice of deposition for June 6, 2022. (Gomez Decl. ¶ 6, Exhibit 3.) On June 3, 2022, Habib’s counsel informed Plaintiff that Habib was in the hospital and the deposition therefore had to be cancelled. (See Gomez Decl. ¶ 8, Exhibit 5.) Habib’s counsel did not respond to Plaintiff’s request for alternate dates and Plaintiff thereafter noticed a deposition for July 5, 2022. (See Gomez Decl. ¶¶ 8-9, Exhibit 6.) Habib canceled the July 5, 2022 deposition and on July 21, 2022, indicated that the cancellation was due to new counsel being substituted in. (See Gomez Decl. ¶ 11, Exhibit 8.) No substitution of attorney was filed with the Court and on August 3, 2022, Plaintiff again requested that Habib provide dates for his deposition but did not receive any response. (Gomez Decl. ¶ 12, Exhibit 12.)

In the opposition (the “Opposition”) Habib contends that the deposition cancellations were due to his medical condition and that he is now able to appear for his deposition. (Declaration of Angela Serranzana (“Serranzana Decl.”) ¶5.)

While the Court is sympathetic to Habib’s health condition, the Court notes that the most recent communications to Plaintiff’s (former) counsel stated that the ongoing need to defer his deposition was due to the substitution of counsel rather than his health, which the Opposition does not address. The Opposition also does not address the evidence presented in the Motion that Plaintiff never received any additional communication regarding a suitable date for Habib’s deposition. While it appears that Habib has since engaged new representation, the Court’s records do not show that a substitution of attorney was ever filed. The Opposition does not present evidence that Habib’s current counsel communicated with Plaintiff to reschedule the deposition. Plaintiff’s reply (the “Reply”) suggests, albeit without direct evidence, that no attempts were made to provide a new deposition date after the filing of the Opposition.[1]

The Court therefore GRANTS the Motion. Habib is ordered to appear at his deposition, which shall be taken on a date to be noticed by Plaintiff’s counsel in consultation within the next 20 days with Habib. If the parties are unable to reach agreement on a date for Habib’s deposition to be taken by the end of November, 2022, Plaintiff may unilaterally set a date for said deposition, and shall give notice thereof.

Plaintiff requests monetary sanctions in the amount of $2,400 in connection to the Motion. (Gomez Decl. ¶ 13.) The requested amount reflects: (1) three hours of work spent preparing the moving papers; (2) an anticipated two hours to review the Opposition and draft the Reply; and (3) an anticipated hour attending the hearing at an hourly rate of $400 per hour. (Id.)[2] The Court exercises its discretion and GRANTS Plaintiff’s request for monetary sanctions in the total amount of $1,200, which represents three hours of work at a rate of $400 per hour. (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.) The Court orders Habib and counsel to pay Plaintiff’s counsel this amount within 20 days.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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

[1] In law and motion practice, factual evidence is supplied to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

[2] Gomez indicates that while he is seeking sanctions for three hours of work preparing the Motion, he spent over five hours performing this work. (Gomez Decl. ¶ 13.)