Judge: John J. Kralik, Case: 21BBCV00939, Date: 2023-03-24 Tentative Ruling

Case Number: 21BBCV00939    Hearing Date: March 24, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Amy Derry (“Plaintiff”) alleges that she rents the property at 802 N. Glenoaks Blvd. in Burbank from Defendants Khanh Mai and Nhat Bui (“Defendants”).  Plaintiff alleges that she and Defendant entered into a rental agreement on April 17, 2020, which dictated that she pays $1,900 in monthly rent and the lease term would be for 6 months from April 20, 2020 to October 20, 2020 for the middle unit of a tri-plex.  (Compl., ¶¶8-9.)  Plaintiff alleges that she paid 6 months up front, plus a security deposit for a total amount of $13,300 to be paid in 2 installments of $6,650 on April 17 and April 20, 2020.  (Id., ¶10.)  Plaintiff alleges that the unit was not ready for occupancy on April 20, 2021, but was instead ready on April 24, 2021 (Plaintiff alleges 2021 dates).  (Id., ¶11.)  Plaintiff alleges that though the unit was listed at $1,800 per month, Defendants insisted on $1,900 per month because Plaintiff’s cats may cause damage to the floor; however, Plaintiff alleges that the floors were already damaged before her move.  (Id., ¶12.)  Plaintiff also alleges that since moving into the property, she has experienced unhabitable conditions, such as a non-working stove, need for roof repairs (though her roof did not leak), fear of a brick wall crumbling, several windows not closing properly, having to provide her own smoke and carbon monoxide alarms, unsafe heating unit, bugs dropping from walls, rotting wood on the patio, a clogged toilet, low water pressure, a harassing neighbor/tenant, and a cumbersome entertainment center left in the unit.  (Id., ¶¶13-28.)  Plaintiff alleges that despite Defendants’ knowledge of the above, they failed to take any actions to remedy the issues.  (Id., ¶29.) 

            The complaint, filed October 27, 2021, alleges causes of action for: (1) nuisance; (2) violation of Civil Code, § 1940.2; (3) breach of contract; (4) breach of implied covenant of quiet enjoyment; (5) negligence; (6) negligent infliction of emotional distress; (7) breach of the implied warranty of habitability; (8) intentional misrepresentation; (9) fraudulent concealment; and (10) negligent misrepresentation. 

B.     Motion on Calendar

            On February 1, 2022, Defendants Khan Mai and Nhat Bui filed a motion to compel Plaintiff’s attendance at deposition.

            On March 14, 2023, Plaintiff filed an opposition brief.

            On March 17, 2023, Defendants filed a reply brief.

DISCUSSION

Defendants move to compel Plaintiff to attend a deposition on a date to be determined at the hearing, to be taken via remote videoconference service, within 10 days of the date of the hearing.  Defendants seek monetary sanctions, attorney’s fees, court reporter fees, and costs in the amount of $660 for having to make this motion and $1,056 for Plaintiff’s failure to appear at 2 previously noticed depositions. 

Defendants state that they noticed Plaintiff’s deposition in August 2022, scheduling a date for October 19, 2022, but Plaintiff (in pro per) requested a rescheduled date for the deposition and indicated she would be available on November 21, 2022.  Defendants then served a second notice on October 25, 2022, scheduling the deposition for November 21, 2022, but an hour before the deposition, Plaintiff emailed she would not be able to attend due to medical reasons; however, defense counsel, a court reporter, and a videographer appeared.  Defendants then sent a meet and confer letter on November 30, 2022 with alternative dates for the deposition and Plaintiff chose February 1, 2023.  Defendants served a notice on December 15, 2022, scheduling the deposition for February 1, 2023 via remote videoconference, but on January 31, 2023, Plaintiff stated she would be canceling the deposition because her new counsel needed time to review the case.  (A substitution of attorney was filed on February 14, 2023.)  Defense counsel informed Plaintiff the deposition was still on calendar and the deposition went forward without Plaintiff. 

In opposition, Plaintiff argues that Defendants’ motion should be denied because Defendants unilaterally set the first deposition, Plaintiff got sick right before the second deposition (and had to go to urgent care), and Plaintiff wanted to continue the third deposition until she finalized retaining substitute counsel.  Plaintiff argues she now has an attorney and wants to proceed with her deposition such that this motion should be denied. 

            As it appears that both parties want Plaintiff’s deposition to go forward, the Court will grant the motion to compel Plaintiff’s attendance at her deposition to ensure that the deposition occurs promptly on a mutually agreeable date via remote videoconference, especially in light of the April 17, 2023 jury trial date.  (In the opposition brief, Plaintiff states that she will pursue a trial continuance due to his recent substitution.  At this time, the Court is not in receipt of a motion or ex parte application to continue the trial date.)

            Defendants request sanctions against Plaintiff only and not against her newly retained counsel in the amounts of $660 for having to make this motion and $1,056 for Plaintiff’s failure to appear at 2 previously noticed depositions.  Defense counsel, Geoffrey Bowen, states that his hourly rate is $120/hour and that he spent 1 hour waiting for Plaintiff to appear at 2 depositions and 3 hours on the motion, and anticipates spending 1 hour on the hearing ($600); the filing fee of the motion was $60; the November 21, 2022 costs were $253 for the court reporter no-show fee and $275 for the videographer no-show fee; and the February 1, 2023 were $253 for the court reporter no-show fee and $275 for the videographer no-show fee.  (Bowen Decl., ¶23.)  The Court will award the $660 in sanctions for the time spent by counsel and the filing fees.  While the Court understands in part Plaintiff’s failure to attend her depositions, Plaintiff informed Defendants 1 hour before the November 21, 2022 deposition and 1 day before the February 1, 2023 deposition of her cancellation, such that it was likely already too late to cancel these scheduled costs for the court reporter and videographer.  As such, the request for sanctions against Plaintiff only is granted in the sum of $1,716.

CONCLUSION AND ORDER

Defendants Khanh Mai and Nhat Bui’s motion to compel Plaintiff Amy Derry to attend her deposition is granted.  The parties are ordered to meet and confer to schedule Plaintiff’s deposition within 10 days from the date of this hearing.  The deposition shall proceed by remote videoconference.  

Plaintiff only is ordered to pay monetary sanctions in the amount of $1,716 to Defendants, by and through counsel, within 20 days of notice of this order.

Defendants shall provide notice of this order.