Judge: Katherine Chilton, Case: 21STLC01024, Date: 2022-08-01 Tentative Ruling

Case Number: 21STLC01024     Hearing Date: August 1, 2022    Dept: 25

PROCEEDINGS:      MOTION TO COMPEL DEPOSITION OF DEFENDANTS AND REQUEST FOR SANCTIONS

MOVING PARTY:   Plaintiff Romex Textiles

RESP. PARTY:         None

MOTION TO COMPEL DEPOSITION; REQUEST FOR SANCTIONS

(CCP § 2025.450)

TENTATIVE RULING:

Plaintiff Romex Textiles’ Motion to Compel Depositions of Defendants KLK Forte Industry, Inc. and Katherine Kim and Compliance with Plaintiff’s Demand for Production of Documents and Things at Said Depositions is GRANTED in part and DENIED in part.  Defendants are ordered to appear for deposition at a time, place, and date to be noticed by Plaintiff, within twenty (20) days of notice of this order.  Plaintiff’s Demand for Production of Documents and Things is DENIED.

Plaintiff’s request for sanctions is GRANTED in the amount of $252.87 to be paid by Defendants within thirty (30) days of notice of this order.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 [OK]

[X] Correct Address (CCP §§ 1013, 1013a)                                                 [OK]

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     [OK]

OPPOSITION:          None filed as of July 28, 2022.               [   ] Late                      [X] None

REPLY:                     None filed as of July 28, 2022.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On February 5, 2021, Plaintiff Romex Textiles, Inc. (“Plaintiff”), filed an action against Defendants Honey Punch America, Inc., dba Honey Belle (“Honey Punch”); KLK Forte Industry, Inc., dba Wild Honey, dba Honey Punch, dba Honey Belle, dba Honey Pop (“KLK”); Honey Punch USA (“Honey USA”); Honey Global IP LLC (“Honey Global”); The Honey Companies LLC (“Honey Comp.”); Katherine Kim aka Katherine Hee Kim aka Kathy Kim aka Katherine Lee aka Hyun Hee Kim, an individual (“Katherine”); Kenny In Hwang aka Kenny Kwon Hwang aka Kenny Hwang, an individual, dba Honey Punch, dba Honey Punch America, dba Style Melody (“Kenny”) (collectively “Defendants”) for (1) breach of contract, (2) open account, (3) account stated, (4) goods sold and delivered (quantum valebant), (5) conversion, (6) claim and delivery, (7) promise without intent to perform – fraud, (8) intentional misrepresentation, and (9) negligent misrepresentation.

On November 16, 2021, Defendants Katherine and KLK filed an Answer denying all allegations in the Complaint.  Plaintiff filed a dismissal as to Defendant Kenny on July 26, 2022 but the dismissal related to the First Amended Complaint which has not been filed with the Court so Kenny remains a defendant. 

Plaintiff filed a Request for Entry of Default/Judgment on May 20, 2022, for the following Defendants: Honey Punch, Honey Global, and Honey Companies; however, the Request was rejected by the Court.

On July 5, 2022, Plaintiff filed the instant Motion to Compel Depositions of Defendants KLK and Katherine and Compliance with Plaintiff’s Demand for Production of Documents and Things at Said (the “Motion”).  Plaintiff also filed, twice, an Ex Parte Application for an Order to Compel Deposition of Defendants KLK and Katherine and Compliance with Plaintiff’s Demand for Production of Documents and Things at Said Deposition on July 6, and July 8, 2022; both were denied by the Court.  No opposition has been filed.

Trial is set for December 14, 2022.

II.              Legal Standard

Code of Civil Procedure § 2025.450(a) provides:

“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.”

A motion under § 2025.450(a) must set forth specific facts showing good cause justifying the production of the requested documents in the deposition notice.  (Code Civ. Proc., § 2025.450(b)(1).) The motion must also “be accompanied by a meet and confer declaration under § 2016.040, or, when the deponent fails to attend the deposition and produce documents…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Code Civ. Proc. § 2025.450(b)(2).)  Good cause is construed liberally and has been found where documents are necessary for trial preparation.  (See Associated Brewers Dist. Co. v. Superior Court (1967) 65 Cal.2d 583, 587.) 

III.            Discussion

a.      Motion to Compel

Plaintiff served Defendant KLK and Defendant Katherine with Notices of Deposition for June 24, 2022.  (Mot. p. 10, Tabibi Decl. ¶ 2; Exs. 1 and 2.)  Each Notice contains 133 requests for production.  (Mot. pp. 17-41 – Ex. 1; Mot. pp. 69-93 – Ex. 2.)  Defendants did not serve any written objections.  (Ibid. at ¶ 3.)  Plaintiff’s counsel attempted to communicate with defense counsel regarding the upcoming depositions, but was told that “neither Defendants nor Defendants’ attorney will appear for their noticed depositions” because defense counsel wished to withdraw.  (Ibid. at ¶ 4.)  Plaintiff’s counsel offered to extend discovery and motion cut off dates, but defense counsel refused and acknowledged that the Motion would be filed.  (Ibid. at ¶ 5.)  As a result, Plaintiff filed the instant Motion.  No opposition has been filed.

Defense counsel filed his motion to be relieved as counsel on July 28, 2022, to be heard on November 8, 2022, so defense counsel is still counsel of record.

Here, Plaintiff has shown that a Notice of Deposition was served on Defendants KLK and Katherine, no written objections were served, and Defendants failed to appear at the deposition.  Plaintiff has also submitted proof that it complied with the meet and confer requirement prior to filing the instant Motion.  Plaintiff is entitled to an order compelling Defendants to attend a deposition.

However, the Court finds that it cannot compel Defendants to comply with Plaintiff’s request for production at the deposition because Plaintiff’s requests greatly exceed what is permitted in a limited civil action.  In this case, Plaintiff has made 133 requests for production as to each Defendant.  (Mot. pp. 17-41 – Ex. 1; Mot. pp. 69-93 – Ex. 2.)  Code of Civil Procedure § 94(a) limits discovery in limited jurisdiction actions to “any combination of 35 of the following: interrogatories with no subparts…, demands to produce documents or things…, requests for admission with (no subparts).”  Plaintiff’s 133 requests greatly exceed what is permitted in this limited civil action and the Court will not choose which requests to eliminate for Plaintiff’s discovery requests to come into compliance with the rule of 35.

b.     Sanctions

A court shall impose monetary sanctions in favor of the moving party if the motion to compel is granted, unless “the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code. Civ. Proc., § 2025.450(g)(1).)

Plaintiff requests $252.87 in sanctions for half an hour in reviewing the file, meeting and conferring with defense counsel, and preparing the Motion at a rate of $475 per hour, plus $61.50 for costs of filing the Motion.  (Tabibi Decl. ¶ 6.)  Counsel has been practicing commercial/civil litigation for approximately 29 years.  (Ibid.)  The Court finds Plaintiff’s request to be reasonable and GRANTS $252.87 in sanctions, to be paid within thirty (30) days of notice of this order by Defendants.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff Romex Textiles’ Motion to Compel Depositions of Defendants KLK Forte Industry, Inc. and Katherine Kim and Compliance with Plaintiff’s Demand for Production of Documents and Things at Said Depositions is GRANTED in part and DENIED in part.  Defendants are ordered to appear for deposition at a time, place, and date to be noticed by Plaintiff, within twenty (20) days of notice of this order.  Plaintiff’s Demand for Production of Documents and Things is DENIED.

Plaintiff’s request for sanctions is GRANTED in the amount of $252.87 to be paid by Defendants within thirty (30) days of notice of this order.

Moving party is ordered to give notice.