Judge: Katherine Chilton, Case: 22SMCV00150, Date: 2023-04-27 Tentative Ruling

Case Number: 22SMCV00150    Hearing Date: April 27, 2023    Dept: 25

PROCEEDINGS:      COMPEL DEPOSITION AND REQUEST FOR SANCTION

MOVING PARTY:     Defendant Shervin Solymanijam

RESP. PARTY:            Plaintiff Law Offices of Berna Warner Fredman, P.C. 

COMPEL DEPOSITION AND REQUEST FOR SANCTION

(CCP § 2025.450) 

TENTATIVE RULING: 

Defendant Shervin Solymanijam’s Motion to Compel Deposition is DENIED.

Plaintiff Law Offices of Berna Warner Fredman, P.C.’s request for sanctions is GRANTED in the reduced amount of $2,000.00 to be paid by Defendant and Defendant’s counsel of record, Paul Aghabala, jointly and severally, 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:           Filed on April 14, 2023                                       [   ] Late            [   ] None 

REPLY:                        None filed as of April 24, 2023                  [   ] Late            [X] None 

ANALYSIS: 

                I.Background 

On January 31, 2022, Plaintiff Law Offices of Berna Warner Fredman, P.C. (“Plaintiff”) filed this action against Defendant Shervin Solymanijam (“Defendant”), alleging breach of contract and common counts relating to outstanding fees for legal services.

Defendant filed an answer on March 7, 2022.

After the case was reclassified to limited civil, the parties agreed to a trial date of May 11, 2023. (02/27/23 Minute Order.)

On April 4, 2023, Defendant filed the instant motion to compel Plaintiff to appear for deposition.

On April 21, 2023, Defendant filed an ex parte application to extend trial date, which the Court denied. (04/24/23 Minute Order.)

              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.” 

 (Code Civ. Proc., § 2025.450, subd. (a).)  

The motion shall “(1) 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) 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.”  (Code Civ. Proc. § 2025.450(b)(2).) 

Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. Misuses of the discovery process includes failing to respond or to submit to an authorized method of discovery and making or opposing, unsuccessfully and without substantial justification, a motion to compel. (Code Civ. Proc., § 2023.010, subd. (d) and (h).)

            III.Discussion  

Defendant’s Motion to Compel Deposition is denied.

Defendant argues that Berna Warner Fredman failed to appear at her noticed deposition on March 27, 2023, and that she failed to provide timely objections or alternative dates prior to the discovery cut off. (Mot. p. 6.) Further, Defendant argues that Plaintiff filed this lawsuit but refuses to participate in the process. (Ibid.) The Court disagrees with Defendant based on the following findings. Defendant’s failure to take Plaintiff’s deposition in a timely manner appears to be solely the fault of Defendant. Plaintiff’s counsel offered Defendant’s counsel dates for Berna Warner Fredman’s deposition in October and November 2022, but Defendant’s counsel did not respond. (Opp. To Motion to Compel; C. Fredman Decl. ¶ 12; Exh I). Defendant then waited until March 6, 2023 to notice the deposition of Berna Warner Fredman but (1) Berna Warner Fredman is not the Plaintiff, which is Law Offices of Berna Warner Fredman, P.C.; (2) the Notice of Deposition was untimely; and (3) the Notice required production of documents but Defendant has already exceeded the amount of discovery available in limited civil court [CCP § 94]. Discovery is to be completed on or before the 30th day before trial and motions concerning discovery are to be heard on or before the 15th day before trial.

Accordingly, Defendant’s Motion to Compel Deposition is denied.

Plaintiff requests $3,750.00 from Defendant and or Defendant’s attorney Paul Aghabala for having to oppose the instant motion. (Opp. To Motion to Compel; C. Fredman Decl. ¶ 13.) The amount is calculated as follows: 1 hour to review the instant motion and exhibits; 5 hours to draft the memorandum of points and authorities; and 1.5 hours to draft the declaration all at the hourly rate of $500.00. (Ibid.) Because Defendant’s Motion is unsuccessful and without substantial justification, the Court grants Plaintiff’s request for monetary sanctions. (Code Civ. Proc., §§ 2023.030, subd. (a) and 2023.010, subd. (h).) However, the Court finds that Plaintiff’s request of $3,750.00 in monetary sanctions to be excessive. The amount is reduced to $2,000.00, representing 1 hour to review the instant motion and exhibits, 2 hours to draft the memorandum, and 1 hour to draft the declaration all at the hourly rate of $500.00. Sanctions are to be paid by Defendant and Defendant’s counsel of record, Paul Aghabala.

           IV.Conclusion & Order

For the foregoing reasons, 

Defendant Shervin Solymanijam’s Motion to Compel Deposition is DENIED.

Plaintiff Law Offices of Berna Warner Fredman, P.C.’s request for sanctions is GRANTED in the reduced amount of $2,000.00 to be paid by Defendant and Defendant’s counsel of record, Paul Aghabala, jointly and severally, within thirty (30) days of notice of this order.

Moving party is ordered to give notice.