Judge Holly J. Fujie, Case Number: 22STCV18964, Date: 2023-10-23 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.

The Court has considered the moving and opposition papers. No reply has been received.

This tort action arises from Plaintiffs Richard Galvan and Paige Galvan’s lease for the subject property located at 26168 Pacific Coast Highway, Malibu, CA 90265 owned by Defendant Thomas Edward Waljeski (“Defendant”), inclusive. Plaintiffs filed a Complaint against Defendant alleging causes of action for (1) Violation of California Civil Code § 1942.4; (2) Tortious Breach of the Warranty of Habitability; (3) Private Nuisance; (4) Businessand Professions Code § 17200, et seq; (5) Negligence; (6) Breach of Covenant of quiet Enjoyment; (7) Intentional Infliction of Emotional Distress; (8) Fraud and Deceit; (9) Negligence Per Se; and (10) Violation of Retaliatory Eviction and Anti-Harassment Ordinance.

On October 20, 2023, Defendant filed the instant motions to compel the Plaintiffs’ depositions. In each motion, Defendant requests sanctions against each Plaintiff in the amount of $4,645.08. On March 20, 2024, Plaintiffs filed their joint opposition to the instant discovery motions.

Pursuant to Code of Civil Procedure § 2025.450, subd. (b)(2), a motion for an order compelling a deponent’s attendance and testimony “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.”

Here, Defendant contends that neither Plaintiff attended their respectively scheduled deposition on October 18, 2023 and October 19, 2023. Based on the declaration submitted by Defendant’s counsel, Counsel Sanders attempted to contact Plaintiff’s counsel regarding the deponent’s failure to appear at the scheduled time. (Sanders Decls. at ¶¶ 9-10.) No response was provided. (Ibid.) Thereafter, on October 19, 2023, Defendant’s counsel sent a letter to Plaintiff’s counsel memorializing those attempts and notified him of Defendant’s intent to compel Plaintiffs’ depositions. (Sanders Decls., Exhs. G.) While Plaintiffs claim that there was no contact to inquire about the nonappearance (Opposition at pg. 4), this does not comport with the Defendants’ letter issued on October 19, 2023. Based on Counsel Sanders’ declarations, the Court finds that Defendant has abided by the requirement under Code of Civil Procedure § 2025.450, subd. (b)(2).

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿(Code Civ. Proc., § 2025.010.)¿A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿(Code Civ. Proc., § 2025.280,¿subd. (a).)¿¿¿

“If, after service of a deposition notice, a party . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(Code Civ. Proc., § 2025.450,¿subd. (a).)¿In additional to complying with the meet and confer requirement, the motion must set forth both facts showing good cause justifying the demand for any documents.¿(Code Civ. Proc., § 2025.450,¿subds. (b)(1), (b)(2).)

On September 27, 2023, Defendant unilaterally noticed the depositions of Plaintiffs Paige Galvan and Richard Galvan on October 18, 2023 and October 19, 2023, respectively. (Sanders Decls. ¶ 3, Exhs. B.) On September 10, 2023, Plaintiffs both served objections to their depositions on the basis that they would be unavailable to appear on the respective dates, and Defendant failed to comply with Appendix 3.A of the Los Angeles Superior Court Rules of Court. (Sanders Decls. ¶ 4, Exhs. C.)

Plaintiffs’ objection is that the deposition was unilaterally noticed by Defendant’s counsel, in violation of Los Angeles Superior Court Local Rule, rule 3.26 and Appendix, 3.A(e)(2) which requires parties to give “reasonable consideration” in accommodating schedules of opposing counsel and the deponent, where possible to do so.¿ Defendant’s counsel, however, attests to and presents evidence of his efforts to request deposition dates from Plaintiffs’ counsel on August 12, 2023 and again on September 25, 2023.¿ (Sanders Decls. ¶¶2, 7, Exhs. A, D.)¿ The Court has reviewed the parties’ correspondence and finds that Defendants’ counsel’s efforts were sufficient to meet the requirements of the local rule.¿As such, the Court finds that Plaintiffs’ served objections were not valid. While Plaintiffs argue that there is animosity between counsel, there is nothing to suggest that Plaintiffs were incapable of attending their depositions.

Therefore, the motions are granted. Plaintiffs are ordered to appear for deposition within 30 days of this order.

Code of Civil Procedure § 2025.450(c) states, “(1) If a motion under 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 of Civil Procedure § 2023.030(a) provides that¿“[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . .¿If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the¿sanction unjust.”¿¿Failing to respond¿or to submit to an authorized method of discovery is a misuse of the discovery process.¿ (Id.,¿§ 2023.010(d).)¿

Here, Defendant seeks monetary sanctions against each Plaintiff and their attorney of record, jointly and severally, in the amount of $4,645.08, totaling $9,290.16. Counsel Sanders attests that he spent or will spend a total of 12 hours for each motion at an hourly rate of $450, which includes the following: (1) two hours for attending both depositions, (2) four hours for preparing both motions, (3) four hours in attending and appearing for the ex parte application, and (4) two hours appearing at the hearing for these motions. (Sanders Decls. ¶¶ 14-15.) Also, he attests to have incurred costs for the court reporter, the deposition room rental and filing fees. (Id. at ¶¶ 16-17.)

While sanctions are mandatory under Section 2025.450(c) and permissible under Section 2023.030 for Plaintiffs’ failure to submit to an authorized method of discovery, the amount requested is excessive. First, the motions are essentially identical and concern uncomplicated discovery matters. Thus, it is unlikely that Defendant’s counsel extended a total of four hours in preparing the instant motions. Also, Defendant’s counsel only appeared at a single ex parte application hearing in order to specially set a hearing for the instant motions. Furthermore, appearances will likely be conducted remotely. In terms of costs, Defendant has not submitted any evidence of the actual charge for the court reporter along with his moving papers, and no supplemental declaration has been submitted to substantiate the reimbursement of $1,500 for each deposition. Thus, this cost is not reasonable and cannot be awarded without any substantiation. Therefore, Defendant’s request for monetary sanctions is granted in the combined, reduced amount of $2,995.08 against Plaintiffs and their attorney of record, jointly and severally, consisting of 5 hours of attorney time at an hourly rate of $450, $600 in deposition room costs, and $145.08 in filing fees.

Based on the foregoing, Defendant’s motions to compel Plaintiffs’ depositions are granted. Plaintiffs are ordered to appear for deposition within 30 days of this order at a time, place and date agreed upon. Also, Defendant’s request for monetary sanctions against Plaintiffs and their attorney of record, jointly and severally, is granted in the combined and reduced amount of $2,995.08. Plaintiffs are ordered to tender payment to Defendant’s counsel within 30 days 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