Judge Kerry Bensinger, Case Number: 21STCV32743, Date: 2023-08-09 Tentative Ruling

Judge: Kerry Bensinger, Case: 21STCV32743, Date: 2023-08-09 Tentative Ruling

Case Number: 21STCV32743 Hearing Date: September 5, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: September 5, 2023 TRIAL DATE: October 2, 2023

CASE: Fariba Golshani v. Haleh Kohan

CASE NO.: 21STCV32743

MOTION TO COMPEL THE DEPOSITION OF WITNESS SOHEYLA DANILIAN

MOVING PARTY: Defendant Haleh Kohan

RESPONDING PARTY: No opposition

I. BACKGROUND

On September 3, 2021, Plaintiff, Fariba Golshani, filed this action against Defendant, Haleh Kohan, for injuries arising from a dog bite. Plaintiff alleges that Defendant was and is the owner of the subject dog.

Defendant propounded discovery requests on Plaintiff. In responses to interrogatories, Plaintiff identified Soheyla Danilian (“Danilian”) as a witness to the incident. Thereafter, Defendant served Danilian with a subpoena and notice of deposition for a May 11, 2023 deposition. Danilian did not appear for her scheduled deposition.

On May 23, 2023, Defendant filed this motion for an order compelling Danilian to testify at deposition. Defendant seeks sanctions against Danilian.

The Court reviewed the motion on July 17, 2023. The motion could not be approved because Defendant did not attach a proof of service showing that Danilian was served with notice of this motion. The Court continued the motion to allow Defendant to cure this defect.

On July 21, 2023, Defendant separately filed a proof of service showing that Danilian was personally served with this motion on July 19, 2023.

The motion was heard on August 9, 2023, and August 16, 2023. Plaintiff argued that service of the motion was defective because Defendant had not attached proof of service. The Court continued the hearing each time to review this issue. The Court now rules as follows.

II. LEGAL STANDARDS

Any party may obtain discovery by taking in California the oral deposition of any person. (Code Civ. Proc., § 2025.010.) A deposition subpoena may command the attendance and the testimony of a nonparty deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code Civ. Proc., § 2020.020.) If a nonparty deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. (Code Civ. Proc. §§ 2024.480, 2025.480.)

If the nonparty deponent is a natural person, any person may serve the subpoena by personal delivery of a copy of it to that person. (Code Civ. Proc., § 2020.220, subd. (b)(1).) Personal service of any deposition subpoena is effective to require the personal attendance and testimony of the nonparty deponent, if the subpoena so specifies. (Code Civ. Proc., § 2020.220, subd. (c)(1).)

“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court, rule 3.1346.)

Monetary Sanctions

A nonparty that fails to appear pursuant to a deposition subpoena is subject to the payment of damages, in addition to the payment of $500. (Code Civ. Proc. §§ 2020.240 and 1992.)

III. DISCUSSION

Defendant properly served Danilian with a subpoena and a notice of deposition on April 2, 2023. The deposition was scheduled for May 11, 2023. However, Danilian failed to interpose any objections or to appear. (See Declaration of Tremayne W. Wilson.) Further, contrary to Plaintiff’s contention at the August 9, 2023 hearing, Defendant filed a proof of service showing Danilian was personally served with this motion on July 19, 2023. (See 7/21/23 Proof of Personal Service.)

Accordingly, the motion to compel the deposition of Soheyla Danilian is GRANTED.

Monetary Sanctions

Defendant requests sanctions against Danilian. Pursuant to Section 2025.450, subdivision (g)(1), the Court is obligated to impose sanctions. Accordingly, the Court imposes sanctions of $410, consisting of two hours at defense counsel’s hourly rate ate $60 in filing fees.

IV. CONCLUSION

The motion is granted. The Court orders nonparty Soheyla Danilian to appear for deposition within 30 days of this order.

The request for sanctions is granted. The Court imposes $410 in sanctions against Soheyla Danilian. Sanctions are to be paid within 30 days of this order.

Given that trial is less than two months away, the Court will hear from the parties as to whether the trial should be continued.

Moving party to give notice.

Dated: September 5, 2023 ___________________________________

Kerry Bensinger

Judge of the Superior Court

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.