Judge: John J. Kralik, Case: 21BBCV00971, Date: 2025-02-07 Tentative Ruling

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Case Number: 21BBCV00971    Hearing Date: February 7, 2025    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

On December 20, 2024, Plaintiff filed the instant Motion to Compel Deposition of Defendant Gregory Mogab and a request for sanctions in the amount of $500 against Defendant Mogab (“Mot.”), along with the Declaration of Damion Robinson (“Robinson Decl.”)

The Court is not in receipt of an opposition brief.

Initially, the instant motion was scheduled to be heard on March 7, 2025. However, Plaintiff Amira filed an ex parte application to shorten the time and advance the hearing date of the instant motion. Thus, on January 9, 2025, the Court advanced this hearing to February 7, 2025.

The Court further notes the following hearings on calendar:

2/14/25 Hearing on Plaintiff’s Motion to Compel Mogab’s Further Discovery Responses

2/21/25 Hearing on Motion to be Relieved as Counsel, (behalf of Defendant Hazelhurst)

3/7/25 Hearing on Motion to Compel Deposition of Anthony Olmedo and Production of Documents and things filed by Plaintiff Amira

3/14/25 Hearing on Defendants CMM and Schreibers’ Motion for Summary Judgment

4/17/25 Final Status Conference

4/28/25 Jury Trial

DISCUSSION

Plaintiff moves to compel Defendant Gregory Mogab to appear at and proceed with his resumed deposition via Zoom on the grounds that Mogab failed to appear at his properly noticed deposition despite his agreement to attend.   

Plaintiff provides that she cross-noticed Mogab’s deposition for the same date (September 26, 2024) that Defendant CMM noticed Mogab’s deposition, due to Mogab’s impending move to the Philippines. (Robinson Decl., ¶ 2.) The deposition, however, could not be completed in a single session due to the conflicting schedules of multiple attorneys on this case. CMM’s counsel examined Mogab for nearly the entire session, leaving Plaintiff with only one hour to examine Mogab primarily on topics relating to the parties’ scheduled Mandatory Settlement Conference. (Id., ¶ 3.) The parties then agreed to close the first session of Mogab’s deposition with his express agreement to appear for a further session by Zoom:

ATTORNEY ROBINSON:· So let’s just put on the record before we get off that we’re – we’re stipulating, given the time and the – the amount of questioning that I have yet to do, we’re going to break Mr. Mogab’s deposition for today. We will reconvene on a time that’s convenient to you, Mr. Mogab, in approximately a month, beginning of November to mid-November.

And the deposition will take place by Zoom. I assume you’ll be in the Philippines by that time. And we’ll get everything set up.

THE WITNESS: Yes.

(Id., ¶ 4 & Ex. 1 [Mogab Dep.], pgs. 228:24-229:10, emphasis added.)

Subsequently, Plaintiff’s counsel selected one of Mogab’s proposed dates for resuming the deposition. (Robinson Decl., ¶ 6, Ex. 2.) On November 14, 2024, Plaintiff served a Notice of Continued Deposition for December 6 via Zoom in accordance with such agreement. (Id., Ex. 3.) However, the next day, Mogab terminated his counsel, and he now represents himself. (Id., Ex. 4.) Plaintiff’s counsel then followed up with Mogab’s former counsel and with Mogab to confirm the deposition of December 6, 2024. On November 26, 2024, Mogab responded that he was “evaluating [his] options and ability to seek new counsel” and would not attend unrepresented. (Id., ¶ 10, Ex. 5.) Accordingly, Mogab failed to appear on December 6, 2024, as noticed. (Id., Ex. 6.) Mogab then did not respond to a follow-up email from Plaintiff’s counsel seeking to reschedule the deposition. (Id., Ex. 5.)

The Court notes that Defendant Mogab does not oppose the instant motion.

On Wednesday, October 23, 2024, Defense Counsel sent the following email, reading, in pertinent part:

We can likely do 11/18, 11/20, 12/6, or 12/9. However, if you have other dates in mind, let us know.

(Robinson Decl., Ex. 2.)

Plaintiff’s Counsel responded on October 24, 2024 saying, in pertinent part:

Can we agree to that date and lock in either the 11/20 or early December dates for resumption of depo?

(Robinson Decl., Ex. 2.)

That same day, Defense Counsel responded, in pertinent part:

As for the deposition, we will ask our client to hold 11/20 and the December dates open pending your formal notice.

(Robinson Decl., Ex. 2.)

On Tuesday, November 26, Defendant Mogab emailed, in pertinent part:

I am currently evaluating my options and ability to seek new counsel and am not planning to attend the deposition on December 6 while I am not represented by counsel.

(Robinson Decl., Ex. 5.)

On Tuesday, December 10, 2024, Plaintiff’s counsel emailed, in pertinent part:

Mr. Mogab:

I am following up on the email exchange below. I understand that you are seeking new counsel. Unfortunately, with our trial date now set in April, we cannot delay in completing the deposition. We will need to complete it this month. Please let me know when you are available. If we cannot schedule the deposition quickly, we will have no choice but to get the court involved.

Thanks, Damion (Robinson Decl., Ex. 5.)

Plaintiff now argues that there is no meet and confer requirement when a party fails to attend his deposition because the noticing party must only show that it has “contacted the deponent to inquire about the nonappearance.” (CCP § 2025.450(b)(2). Plaintiff asserts that she has satisfied her obligation to inquire and Mogab failed to respond to Amira’s follow-up inquiry.

Thus, it is now necessary to compel Mogab’s attendance, especially with trial just a few months away. Moreover, Plaintiff argues that although Mogab communicated he would not attend deposition without counsel, Mogab failed to formally object in accordance with CCP § 2025.410 and then failed to appear. Thus, per CCP § 2025.450(a), Plaintiff is now entitled to an order compelling the deponent’s attendance given the only required showing is that the deposition was properly noticed, no valid objection was served, and deponent failed to appear. Critically, Plaintiff contends it is essential to her ability to oppose CMM’s MSJ that she be able to cross-examine Defendant Mogab, as well as her statutory right to depose Mogab prior to trial.

The Court agrees. Mogab failed to object, appear, or respond to Plaintiff’s post non-appearance inquiry per the December 10, 2024, email. While the Court notes Defendant Mogab is currently unrepresented, the Court finds Mogab has not established substantial justification for non-appearance or failure to object, given his lack of opposition.

Request for Sanctions

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (Code Civ. Proc., § 2025.450, subd. (g)(1).)  On motion of a party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction in favor of that party and against the deponent.  (Code Civ. Proc., § 2025.450, subd. (g)(2).) 

Plaintiff Amira requests that the Court sanction Mogab $500.00 because sanctions are mandatory in this circumstance. The Court agrees and awards Plaintiff sanctions in the amount of $500 against Defendant Mogab. The Court finds such sanctions warranted considering Mogab’s impending move to the Philippines, his failure to object to the deposition, failure appear at the deposition, and failure to respond to the instant motion.  Thus, the Court awards sanctions in the sum of $500, to be paid by Defendant Mogab.

CONCLUSION AND ORDER

Plaintiff’s motion to compel Defendant Mogab’s deposition is granted. Plaintiff’s request for sanctions is granted.

Plaintiff shall provide notice of this order.

DATED: February 7, 2025                                         ___________________________

                                                                                                JOHN KRALIK, Judge

                                                                                                Superior Court of California

                                                                                                County of Los Angeles.