Judge Kerry Bensinger, Case 21STCV16664 2023-03-24 Tentative Ruling

On May 4, 2021, plaintiff Marlene Sylvestre (“Plaintiff”) filed this action against Culver City Mall LLC (erroneously sued and served as Westfield Culver City) (“Defendant”) for injuries sustained in a slip and fall on May 6, 2019.

Defendant now moves to compel Plaintiff to appear for and testify at deposition in this matter. Defendant also seeks an order imposing monetary sanctions against Plaintiff and her attorneys of record in the amount of $2,461.65.

Plaintiff’s counsel filed a declaration an opposition to the imposition of monetary sanctions against counsel. Defendant’s motion to compel Plaintiff’s deposition is otherwise unopposed.

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).)

“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.)¿

Defendant served a notice of taking Plaintiff’s deposition on three occasions. The depositions were scheduled for March 15, 2022, August 9, 2022, and October 27, 2022. The first deposition was rescheduled after conferring with Plaintiff’s counsel. The second deposition was rescheduled at Plaintiff’s counsel request because Plaintiff’s son surprised Plaintiff with a surprise out-of-country trip. At the third deposition, Plaintiff failed to appear. Defendant attempted to reschedule Plaintiff’s deposition but did not receive a response from Plaintiff’s counsel (Doumar Decl., ¶¶ 2-22.)

Defendant properly noticed Plaintiff’s deposition and Plaintiff failed to appear. Accordingly, Defendant’s motion to compel Plaintiff’s deposition is GRANTED.

Defendant requests imposition of monetary sanctions against Plaintiff and Plaintiff’s attorneys of record in the amount $2,461.65 to cover fees and costs. Pursuant to Section 2025.450, subdivision (g)(1), the Court is obligated to impose sanctions. Plaintiff’s counsel has submitted a declaration stating that they have “done everything to have the Plaintiff show up for her deposition. Unfortunately, Plaintiff does not want to cooperate and that is the reason our office has filed a Motion to be Relieved as Counsel.” (Gibson Decl., ¶ 6.) Pursuant to Hennings, supra, the Court finds that Plaintiff’s counsel has met their “burden of showing that he or she did not counsel discovery abuse.” (Hennings, 58 Cal.App.5th at p. 81.) Accordingly, the Court imposes monetary sanctions against Plaintiff only.

Defendant offers the declaration of counsel to justify the monetary sanction sought. (Doumar Decl., ¶ 29.) The Court finds Defendant’s counsel’s hourly rate of $300 to be reasonable as is the request for $61.65 for filing fees, but reduces the sanction to $961.65, representing three hours of Defendant’s counsel’s time at the hourly rate of $300 and filing fees.

The motion is granted. The Court orders Plaintiff Marlene Sylvestre to appear for deposition within fifteen (15) days of notice of this order.

The Court imposes $961.65 in monetary sanctions against Plaintiff. Sanctions are to be paid within thirty (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