Judge Lee S. Arian, Case Number: 20STCV38123, Date: 2024-02-22 Tentative Ruling

On October 5, 2020, Plaintiff Antonio De La Cruz Zamora (“Plaintiff”) filed a Complaint against Defendants County of Los Angeles (“County”), James Paul Furtsch (collectively “Defendants”) and DOES 1 to 30, alleging causes of action for: (1) motor vehicle, (2) general negligence, and (3) Government Code sections 815.2(a) and 820(a).

On March 17, 2022, Defendant County filed a Notice of Related Case indicating that the instant action was related to Ontiveros v. County of Los Angeles, et al., LASC Case No. 20STCV48053 (the “Ontiveros Action”). On March 21, 2022, the Court deemed the instant action and the Ontiveros Action as related with the instant action being deemed the lead case. (03/21/22 Minute Order.)

On January 4, 2024, Defendant County filed the instant motion to compel Plaintiff’s deposition and for monetary sanctions against Plaintiff and his attorneys of record, Dean Hakkak and First Law Group APC, in the amount of $2,000.00 (the “Motion”). Defendant County requests that Plaintiff appear for deposition on February 29, 2024 at 1:30 p.m. at 5001 Airport Plaza Drive, Suite 240, Long Beach, CA 90815.

On February 13, 2024, Plaintiff filed and served an opposition to the Motion, which only consists of a declaration from his counsel, Eric A. Forstrom. On February 15, 2024, Defendant County filed and served a reply brief.

Defendant County argues that the opposition should be disregarded due to untimeliness. While the opposition is untimely, the Court exercises its discretion and will consider the opposition. (Cal. Rules of Court, Rule 3.1300(d).)

“The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc., § 2025.280, subd. (a).)

“If, after service of a deposition notice, a party to the action . . . without having served a valid objection . . . 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 motion to compel deponent testimony “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produced the documents, electronically stored information, or other things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450.) A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.)

Here, Allen L. Thomas (“Thomas”), counsel for Defendant County, declares that on January 19, 2023, a deposition notice was served to take Plaintiff’s deposition on February 10, 2023. (Thomas Decl., p. 10:8-10; Exhibit 1.) On January 27, 2023, Marlena Martinez at First Law Group sent an electronic communication stating that they may not have coverage for the unilaterally noticed deposition date. (Thomas Decl., p. 10:12-14.) Plaintiff’s counsel’s office indicated that they were not available for a unilaterally noticed deposition date and that they would choose a date in March that was agreeable with all parties. (Thomas Decl., p. 10:17-18.) Thomas declares that his office “notified Ms. Martinez on February 6, 2023, that the deposition was off calendar” and invited Ms. Martinez to provide a few dates of availability for the deposition, which Ms. Martinez provided. (Thomas Decl., p. 10:18-22.) Counsel states that on February 10, 2023, a notice of continuance of Plaintiff’s deposition was served to take Plaintiff’s deposition on March 22, 2023, but the deposition did not go forward because the parties sought and obtained a trial continuance. (Thomas Decl., p. 10:23-28; Exhibit 2.) The parties thereafter engaged in private mediation, which was unsuccessful. (Thomas Decl., p. 11:4-6.) Thomas then reached out to Plaintiff’s attorney, Dean Hakkak, to obtain proposed deposition dates; however, Mr. Hakkak has not responded to counsel’s correspondence or agreed to produce Plaintiff for a deposition. (Thomas Decl., p. 11:7-18.)

The Court finds that the meet and confer requirement has been met. Counsel has set forth efforts to depose Plaintiff.

The Court references its recitation of counsel’s declaration as to the meet and confer process and incorporates it herein. Defendant County cannot properly prepare for trial without deposing Plaintiff. (Thomas Decl., p. 11:19-20.)

In opposition to the Motion, Plaintiff’s counsel, Eric A. Forstrom (“Forstrom”), states that Plaintiff recently underwent surgery and was medically unavailable to sit for deposition. (Forstrom Decl., ¶¶ 4-5.) Forstrom states that despite Defendant County’s implication, neither Plaintiff nor his counsel have refused to cooperate in the scheduling of Plaintiff’s deposition. (Forstrom Decl., ¶ 4.) Forstrom declares that Plaintiff is ready and willing to appear for his deposition within the next 30 days. (Forstrom Decl., ¶ 5.)

Plaintiff is agreeable to being deposed by Defendant. Defendant has issued notices of deposition to Plaintiff, but the deposition of Plaintiff has yet to occur. The Court therefore finds it appropriate to compel Plaintiff’s deposition. Moreover, given that Plaintiff has failed to file a memorandum of points and authorities in opposition to the Motion, Plaintiff has conceded to Defendant County’s arguments raised in the Motion. “Contentions are waived when a party fails to support them with reasoned argument and citations to authority.” (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)

If a motion under Code Civ. Proc. § 2025.450(a) is granted “the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or 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).) A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.)

Thomas declares that he spent three (3) hours preparing the Motion and anticipates spending one (1) hour reading the opposition and preparing a reply. (Thomas Decl., p. 11:21-23.) Thomas states that he anticipates spending one (1) hour of attorney time attending the hearing on the Motion. (Thomas Decl., p. 11:24-25.) A total of five (5) hours was spent on the Motion at an hourly rate of $400.00 per hour. (Thomas Decl., p. 11:25-27.) Defendant County requests total monetary sanctions in the amount of $2,000.00. (Thomas Decl., p. 11:27-28.)

The Court finds that monetary sanctions are appropriate. Exercising its discretion, the Court GRANTS IN PART Defendant County’s request for monetary sanctions and awards Defendant County reasonable monetary sanctions in the amount of $12000.00. The Court reduces the award from the amount requested based on the straightforward nature of the Motion and its relative brevity. Monetary sanctions are to be paid by Plaintiff and Plaintiff’s attorneys of record, Dean Hakkak and First Law Group APC, jointly and severally, to Defendant County within 30 days of the date of notice of this order.

The Court GRANTS Defendant County’s motion to compel Plaintiff’s deposition. Plaintiff is ORDERED to appear for deposition on Thursday, February 29, 2024 at 1:30 p.m. at 5001 Airport Plaza Drive, Suite 240, Long Beach, CA 90815, which is the location of the Thomas Law Firm Incorporated.

Defendant County’s request for monetary sanctions is GRANTED IN PART. Plaintiff and Plaintiff’s attorneys of record, Dean Hakkak and First Law Group APC, are ORDERED to pay monetary sanctions, jointly and severally, in the amount of $1200.00 to Defendant County within 30 days of the date 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. Lee S. Arian

Judge of the Superior Court