Judge Kerry Bensinger, Case Number: 21STCV09943, Date: 2023-11-28 Tentative Ruling

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

MOTION TO COMPEL PERSON MOST QUALIFIED DEPOSITION OF DEFENDANT LONDON TOWNE CENTER, LLC

This is a dispute concerning real property located at 910 Torrance Blvd. in Redondo Beach, California (the “Subject Property”). 910 Torrance Blvd., LLC (“910 Torrance”), owns a one-third (1/3) interest as a tenant in common of the Subject Property. London Towne Center, LLC (“LTC”) owns a two-thirds (2/3) interest in the Subject Property. Thomas Norris (“Norris”) is the sole member and manager of LTC.

On March 12, 2021, Plaintiffs, 910 Torrance, Leslie H. Winner, and Lynda Winner, individually and as trustees of the Winner Family Living Trust, filed a Complaint against Defendants, LTC and Norris. The Complaint alleges causes of action for: (1) Partition of Real Property; (2) Accounting; (3) Breach of Fiduciary Duty; (4) Constructive Trust; (5) Declaratory and Injunctive Relief; and (6) Unfair Business Practices (Civil Code § 17200). Defendants answered the Complaint on October 27, 2021.

On June 22, 2023, the court struck LTC’s answer to the Complaint because it had not obtained counsel. On the same day, default was entered against LTC.

On October 2, 2023, Plaintiffs filed this motion to compel the deposition of Norris as LTC’s person most qualified, and to produce documents at deposition. Plaintiffs also seek an order compelling Norris’s compliance with the court’s discovery orders issued on 2/21/2023, 3/03/2023, 4/25/2023, 6/09/2023, and 6/20/2023. Additionally, Plaintiffs seek sanctions against LTC and Norris.

As a threshold issue, Plaintiffs improperly seek to compel LTC’s PMQ deposition and Norris’s compliance with prior discovery orders. These matters should be the subject of separately noticed motions.[1] Accordingly, the court addresses only Plaintiffs motion to compel LTC’s PMQ deposition.

Any party may obtain discovery by taking in California the oral deposition of any person.¿ (Code Civ. Proc., § 2025.010.)¿ “If, after service of a deposition notice, a party to the action…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).)¿¿¿

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿¿¿

“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).)¿¿¿¿¿

· Exhibit M – Order of February 21, 2023 granting Plaintiffs’ Motion to Compel London Towne Center, LLC to provide further responses to Plaintiff’s demand for production of documents 1, 2, 3, 5, 6, 7, 8, 9, 17, 29 and 34.

· Exhibit N – Order of March 3, 2023 granting Plaintiffs’ Motion to Compel Defendant Norris to provide further responses to Plaintiff’s demand for production of documents 1, 2, 4, 5, 6, 7, 25, 26 and 33.

· Exhibit O – Order of April 25, 2023 granting Plaintiffs’ two motions to compel discovery responses as to Defendant Thomas Norris, including a motion to provide responses to Plaintiffs’ Supplemental Interrogatory, by updating its prior interrogatory responses and a motion to provide responses Plaintiffs’ Supplemental Demand for Production of Documents.

· Exhibit P – Order of June 9, 2023 granting Plaintiffs’ motion to compel Defendant London Towne Center, LLC to provide responses to Plaintiffs’ Supplemental Demand for Production of Documents.

· Exhibit Q – Order of June 20, 2023 granting Plaintiffs’ motion to compel Defendant London Towne Center, LLC to provide responses to Plaintiffs’ Supplemental Demand for Production of Documents.

· Exhibit R – Order of July 3, 2023 Re Trial Scheduling, OSC Re Sanctions and Order to Comply. (Request for Judicial Notice (RJN) 1.)

· Exhibit S– Plaintiffs’ Application For Order of Publication of Summons and Complaint and Request for Judicial Notice.

The request as to Exhibit R is GRANTED. (Evid. Code, § 452, subd. (d).) The court declines to rule on the remaining requests as they are not relevant to the court’s ruling.

Plaintiffs properly noticed LTC’s PMQ deposition on four occasions. (See Cohon Decl., ¶¶ 3, 6, 9.) On the first occasion, Norris, as LTC’s PMQ, was unprepared to answer questions at the deposition. The deposition was re-noticed twice. Norris did not appear each time. On July 3, 2023, the court ordered Norris to appear for deposition. (RJN 7.) Norris appeared for deposition on July 21, 2023, but was yet again unprepared to be deposed. (Cohon Decl., ¶ 18.) As such, Plaintiffs seek an order compelling Norris to appear for deposition and to produce documents identified in the deposition notice.

As it is undisputed that Norris has not appeared for deposition prepared to answer questions, or produced documents responsive to the deposition notice, Plaintiffs are entitled to an order compelling Norris to appear for deposition as LTC’s PMQ, and to produce documents responsive to the deposition notice.

Plaintiffs request sanctions against LTC and Norris in the sum of $15,199.05, which represents the time spent trying to depose Norris and in drafting this motion. Given that the Court has granted this motion, sanctions are warranted. Accordingly, sanctions are imposed against LTC and Norris in the reduced amount of $9,424.05, representing 10 hours spent trying to depose Norris at defense counsel’s hourly rate, 2 hours for preparing this motion at defense counsel’s hourly rate, $5,140 incurred in deposition costs, and $84.05 in filing and service fees. (See Cohon Decl., ¶¶ 23, 25; Breman Decl., ¶¶ 5, 6.)

The unopposed motion is granted.¿ Defendant Thomas Norris is ordered to appear for deposition as LTC’s PMQ and to produce documents responsive to the deposition notice within 15 days of this order.

The request for sanctions is granted. Norris and LTC are ordered to pay, jointly and severally, sanction in the sum of $9,424.05, to be paid to Plaintiffs, by and through their counsel within 30 days of this order.¿¿

Kerry Bensinger

Judge of the Superior Court

[1] The court previously declined Plaintiff’s request for terminating sanctions. The court already ordered Defendant’s compliance. The court will not “compel” again. Rather the motion must be directed to alternative sanctions, such as issue or evidentiary sanctions. Those are not the subject of this motion.