Judge Kerry Bensinger, Case 21STCV12665 2023-04-27 Tentative Ruling

On April 2, 2021, Plaintiff Katayon Akvan filed this action against defendants Equinox Fitness Century City, Inc. (“Equinox”), John Strachan, and Shannon Lynn (collectively, “Defendants”) for negligence, premises liability, and res ipsa loquitor. Plaintiff alleges that she suffered injuries to her foot when the wind blew over a heavy metal railing on Defendants’ premises and fell on top of her foot.

On August 10, 2022 and November 17, 2022, Plaintiff served Deposition Subpoenas on Equinox noticing the deposition of Equinox employee Andre Aultman. Aultman has not appeared for deposition.

On April 4, 2022, Plaintiff filed this motion to compel the deposition of Andre Aultman. In the notice of motion, Plaintiff requests sanctions against Defendant and their counsel of record.

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 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).)

A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54, subd. (c).)

“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.)

Plaintiff served a notice of taking Aultman’s deposition on August 24, 2022, and December 14, 2022. Plaintiff has attempted to find a date that is acceptable to Defendant but Defendant has yet to produce Aultman for deposition. (Shapiro Decl.)

Plaintiff properly noticed Aultman’s deposition and Defendant failed to produce Aultman for deposition.¿ Accordingly, Plaintiff’s motion to compel Defendant to produce Aultman for deposition is GRANTED.¿

Plaintiff requests imposition of monetary sanctions against Defendant and their counsel of record in the amount $1,660. Plaintiff offers the Declaration of Sutton Shapiro to substantiate the amount sought.

Given Defendant’s failure to produce Aultman for deposition, sanctions are warranted against Defendant.¿ (Code Civ. Proc., § 2025.450, subd. (g)(1).) Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.)¿ Defense Counsel does not meet their burden.¿ Accordingly, Plaintiff’s request for monetary sanctions is GRANTED. The Court imposes monetary sanctions in the reduced amount of $860 (2 hours of Plaintiff’s counsel’s hourly rate and $60 filing fee) against Defendant and their counsel of record.

The motion is granted. The Court orders Defendant Equinox Fitness Century City, Inc., to produce employee Andre Aultman to appear for deposition and to produce documents responsive to Plaintiff’s deposition subpoena within 20 days of notice of this order.

The Court imposes $860 in monetary sanctions against Defendant Equinox Fitness Century City, Inc. and their counsel of record, jointly and severally, to be paid within 20 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