Judge: John J. Kralik, Case: 22BBCV00200, Date: 2024-12-20 Tentative Ruling

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Case Number: 22BBCV00200    Hearing Date: December 20, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations of Complaint

Plaintiff Noemi Villalobos (“Plaintiff”) alleges that she is a tenant of residential property located at 1236 N. Orchard Dr., Burbank, CA 91506. She alleges that she took possession in 2012. She alleges that prior to, but specifically since March 30, 2019, she was paying money to Defendant for use of the property until she vacated the property in March 2022. Plaintiff alleges Defendant Oasis Builders in the alter alias of Defendant Omar Loera (“Loera”) and the manager of the property. Loera is alleged to be the legal owner of the property.

The Third Amended Complaint (“TAC”), filed May 30, 2023, alleges five causes of action against Defendants Omar Loera, Oasis Builders, and Does 1 through 50 for (1) tortious breach of warranty of habitability, (2) breach of covenant of quiet enjoyment, (3) nuisance, (4) negligence, and (5) intentional interference with estate (Civ. Code § 789.3).

B.     Relevant Background

On August 18, 2023, the Court sustained without leave to amend Defendants’ demurrer to Plaintiff’s second cause of action in the TAC. Plaintiff has not yet filed a Fourth Amended Complaint.

On September 19, 2023, default was entered as to Defendant Oasis Builders.

C.     Motion on Calendar

            On November 12, 2024, Loera filed a motion to compel Plaintiff to attend her deposition pursuant to CCP § 2025.450.

            The motion is unopposed.

LEGAL STANDARD

            “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.” (CCP § 2025.450(a).)

            Such motion to compel deposition must meet the following requirements: (1) “[t]he motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice[]”; and (2) “[t]he motion 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.” (CCP § 2025.450(b).)

            If a motion to compel deposition 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. (CCP § 2025.450(g)(1).)

DISCUSSION                                                                                              

Here, Defendant’s counsel states that, after not receiving any responses to his attempted communication with Plaintiff’s counsel to set a date for Plaintiff’s deposition, on October 6, 2024, he served Plaintiff and Plaintiff’s counsel with a notice of deposition scheduled for October 15, 2024. (Quan Decl., ¶ 3; Exh. A.) On October 11, 2024, Defendant’s counsel inquired whether the noticed deposition of Plaintiff would take place on October 15, 2024, and Plaintiff’s counsel stated that he would be unavailable because of a trial scheduled for October 14, 2024. (Id., ¶ 4; Exh. B.) On October 16, 2024, after receiving confirmation from Plaintiff’s counsel that Plaintiff could be available on October 25, 2024, Defendant’s counsel served Plaintiff and Plaintiff’s counsel an amended notice of deposition for October 25, 2024—Plaintiff’s counsel never served any objections to this amended notice. (Id., ¶ 5-6; Exh. C.)

Plaintiff and Plaintiff’s counsel failed to appear on the noticed deposition date even though the court reporter, Sheba Ivie, had already set up her equipment and Defendant and Defendant’s counsel were all waiting at the location. (Quan Decl., ¶ 7.) After waiting at the location, Defendant’s counsel called the office of Plaintiff’s counsel, and the person who answered the phone informed Defendant’s counsel that Plaintiff’s counsel was currently in trial and the replacement attorney had a medical emergency. (Ibid.) Defendant’s counsel requested the court reporter to take a Certificate of Non-Appearance. (Id., ¶ 8.)

The declaration of Defendant’s counsel is sufficient to demonstrate that Plaintiff failed to proceed with the duly noticed deposition and that Defendant’s counsel attempted to meet and confer with Plaintiff’s counsel regarding the nonappearance. (CCP §§ 2025.450(a), (b)(2).) Accordingly, Defendant’s unopposed motion to compel the deposition of Plaintiff is GRANTED.

Defendant claims that monetary sanctions are warranted in the total amount of $4,051.00 based on Plaintiff’s failure to appear, including $1,175.85 in damages for the cost of hiring the court reporter, $75 in filing and e-service fees, and $2,800.15 in attorney’s fees. Defendant’s counsel states that their normal hourly rate is $350/hour, and that they spent one (1) hour attending Plaintiff’s deposition on October 25, 2024, four (4) hours drafting the instant motion to compel, and anticipated spending two (2) hours drafting a reply to Plaintiff’s opposition, and one (1) hour to attend the hearing.

Here, the court notes that the $1,175.85 in damages for the cost of hiring the court reporter and $75 in filing and e-service fees are reasonable based on Plaintiff’s failure to appear.

Further, the Court notes that attorney’s fees are warranted based on Plaintiff’s failure to appear necessitating the filing of the instant motion. However, the estimated time to review the opposition and prepare a reply is inapplicable as the motion is unopposed. Further, the four (4) hours to draft the instant motion is excessive given the simplicity of the instant motion. Accordingly, the Court awards one (1) hour for attending Plaintiff’s deposition, two (2) hours to draft the instant motion, and one (1) hour to attend the hearing.

In all, the Court awards $2,632.85 in monetary sanctions.

CONCLUSION AND ORDER

Defendant’s motion to compel Plaintiff’s deposition is granted. And Defendant’s request for sanctions is granted in the reduced amount of $2,632.85.

Defendant shall provide notice of this order.

DATED: December 20, 2024                                     ___________________________

                                                                              John J. Kralik

                                                                              Judge of the Superior Court