Judge Kerry Bensinger, Case 20STCV42261 2023-03-16 Tentative Ruling

On November 4, 2020, plaintiff Alicia Manrras (“Plaintiff”) filed this action against defendant Costco Wholesale Corporation (“Defendant”) arising out of a January 27, 2018 slip and fall.

On December 8, 2022, Plaintiff filed this motion to compel the deposition of Defendant’s person most knowledgeable (“PMK”).

A party can move to compel a party’s deposition where the deponent fails to proceed with the examination without having served a valid objection or to produce for inspection any document described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a).) The moving party must demonstrate that the parties met and conferred. (Code Civ. Proc., § 2025.450, subd. (b).)

“If a motion under [Code of Civil Procedure section 2025.450] subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

Sanctions against counsel: The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.) “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party’s attorney require a finding the ‘attorney advis[ed] that conduct.’” (Ibid.) “It is not enough that the attorney’s actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney’s advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)

Between December 17, 2020 and September 2, 2022, Plaintiff served five deposition notices and requests for production of documents and other things at time of deposition for Defendant’s PMK. The most recent deposition notice scheduled the deposition of Erica Mitchell, a Costco warehouse manager, for September 12, 2022. Plaintiff’s counsel engaged in multiple meet and confer efforts. However, to date, Defendant has not produced Erica Mitchell or another PMK for deposition. (Ghermezian Decl., ¶¶ 2-10.)

Given that Plaintiff properly served deposition notices and requests for production on Defendant without objections, and Plaintiff’s counsel tried to meet and confer with Defendant to find alternative dates, the Court finds Plaintiff is entitled to an order compelling the deposition of Defendant’s PMK.

Plaintiff requests imposition of monetary sanctions against Defendant and its counsel of record in the amount $2,460.00 to cover fees and costs. Plaintiff offers the declaration of counsel to justify the amount sought. (Ghermezian Decl., ¶ 12.)

Pursuant to Section 2025.450, subdivision (g)(1), the Court is obligated to impose sanctions. The Court finds that Plaintiff’s counsel’s hourly rate of $400 is reasonable as is the request for $60 for filing fees. The Court, however, does not find six hours to prepare this motion to be reasonable. Accordingly, the Court grants Plaintiff’s request for sanctions in the reduced amount of $1,260 representing three hours of counsel’s time and filing fees. Further, Plaintiff has furnished evidence of Defendant’s misuse of the discovery process. Pursuant to Hennings, supra, the burden shifts to Defendant’s counsel to show that counsel did not advise Defendant’s conduct, which necessitated the filing of this motion. No such showing has been made.

Defendant Costco Wholesale Corporation is ordered to produce its person(s) most knowledgeable for deposition and to provide responsive documents to Plaintiff’s requests for production to document and other things at time of deposition within 30 days of notice of this Order.

Defendant Costco Wholesale Corporation and its counsel of record is ordered, jointly and severally, to pay monetary sanctions to Plaintiff, by and through Plaintiff’s counsel, in the amount of $1,260 within 30 days of notice of this Order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court