Judge: Lee W. Tsao, Case: 23NWCV03548, Date: 2024-01-19 Tentative Ruling

Case Number: 23NWCV03548    Hearing Date: January 30, 2024    Dept: C

Teachers Insurance and Annuity Association of America vs Blue Atlantic Partners, LLC

Case No.: 23NWCV03548

Hearing Date: January 29, 2024 @ 9:30 AM

#5

Tentative Ruling

I.             Defendant Blue Atlantic Partners, LLC’s motion to set aside/vacate is GRANTED.

II.            Plaintiff Teachers Insurance and Annuity Association of America’s unopposed Motion to Compel Deposition is GRANTED.

III.          The Court imposes monetary sanctions against Defendant Marcellus Ellis and Counsel, jointly and severally, in the reduced amount $2,732.50, payable within 30 days. 

Plaintiff to give notice. 

Defendant Blue Atlantic Partners, LLC moves for an Order to Set Aside Entry of Judgment due to mistake and/or excusable neglect. (CCP § 473(b).)

Plaintiff Teachers Insurance and Annuity Association of America (“Plaintiff”) moves for an order compelling Defendant Marcellus Ellis to appear and testify at his deposition at least 5 days before trial and to produce documents. 

Background

Plaintiff commenced this action on November 3, 2023, by filing a Verified Complaint for Unlawful Detainer by which Plaintiff seeks to recover possession of the commercial premises that it owns located at 10032 Pioneer Blvd, Santa Fe Springs, CA 90670 ("Premises"), which defendants have been using and occupying since August of 2023 without paying rent. (Jorgensen Decl., at ¶ 2.)

On November 15, 2023, Defendant Ellis filed a Prejudgment Claim of Right to Possession, together with a verified Answer – Unlawful Detainer, thereby adding himself as a defendant in the action. (Jorgensen Decl. ¶ 2, Exhs. A and B.) Default was entered against Defendant Blue Atlantic Partners on November 28, 2023.  Trial was originally set as to Defendant Ellis for December 22, 2023, but was thereafter continued at the request of Defendant’s counsel, first to January 17, 2024 and then to January 31, 2024, to allow time for the court to conduct a hearing on a motion filed by Defendant Blue Atlantic Partners to set aside its default. (Jorgensen Decl. ¶ 3.)

A.   Motion to Set Aside Entry of Default

Legal Standard

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted….” (CCP §473(b).

Discussion

Defendant Blue Atlantic Partners contends that when it was served with the Unlawful Detainer Complaint, it hired a legal preparation office who led it to believe it was going to properly prepare Defendant’s Answer, yet failed to inform Defendant it could not legally represent on behalf of Defendant’s company. (Ellis Decl., ¶¶ 4-6.) After hiring the legal preparation office, Defendant realized that the legal preparation office prepared an Answer under Defendant’s owner personal name, and not that of the Defendant BLUE ATLANTIC PARTNERS, LLC, thus leading to the Answer being rejected. (Ellis Decl., ¶ 7.)

Defendant Blue Atlantic, has now retained counsel who has filed the instant motion.

In Opposition, Plaintiff offers that where a party chooses to “proceed without a lawyer; voluntarily representing himself he is not, for that reason, entitled to any more (or less) consideration than a lawyer [and] any alleged ignorance of legal matters or failure to properly represent himself can hardly constitute ‘mistake, inadvertence, surprise or excusable neglect’ as those terms are used in section 473.” (Goodson v. the Bogerts, Inc. (1967) 252 Cal.App.2d 32, 40.) However, the Court notes that Plaintiff is not attempting to represent himself, but rather the corporation entity of Blue Atlantic.

The Court finds that, here, Defendant has appropriately outlined his mistaken belief that the corporate entity could represent itself.

Accordingly, Defendant’s motion to set aside is GRANTED.

B.   Plaintiff’s Motion to Compel Deposition of Defendant Marcellus Ellis

Legal Standard

CCP § 2025.450(a) provides, “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.”  CCP § 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under §2025.410. The objecting party has the burden to justify objections asserted, (See Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494-95.) Code of Civil Procedure section 2025.480, subdivision (a) permits parties to bring a motion to compel the appearance of a deponent that failed to answer any question or produce documents. Code of Civil Procedure section 2025.610, subdivision (b) also permits a party to take a further deposition of a person upon the order of the Court for “good cause shown.” (McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 97.)

Further, “the scope of questioning at a deposition is very broad. Objections for ‘irrelevancy’ are difficult to sustain and instructions not to answer on that basis are never proper.”  (Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2011) ¶ 8:704, quoting Code Civ. Proc., § 2017.010.)  California Code of Civil Procedure § 2025.480 states in pertinent part: “(a) If a 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. (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (See also Unzipped Apparel v. Bader, (2007) 156 Cal.App.4th 123, 127.)

Discussion

On January 5, 2024, PLAINTIFF noticed Defendant’s deposition to commence on January 16, 2024. (Jorgensen Decl. ¶ 5, Exh. D.) The deposition notice, which was served on counsel of record by e-service as required by California Rule of Court 2.251(c)(3), required Defendant to appear and testify and produce certain categories of documents. (Id.) In Plaintiff’s counsel’s email transmitting the notice of deposition to Defendant’s counsel, she stated that “(i)f the date I selected is not convenient for you or Mr. Ellis, I am happy to meet and confer regarding an alternate date, so long as the deposition can be concluded the week of January 16” before Defendant’s counsel had previously represented he would be leaving for vacation scheduled for the week of January 22. (Jorgensen Decl. ¶ 7, Exh. E.) After receiving no response, Plaintiff’s counsel followed up by email to Defendant’s counsel on January 9, requesting that he let her know whether the deposition would be proceeding as currently scheduled or whether he would be proposing an alternative date that week. Mr. Partiyeli responded to that email stating, without explanation, that “(t)he date won’t work” but failed to propose any alternative dates. (Jorgensen Decl. ¶ 8, Exh. F.) Despite repeated requests by Plaintiff’s counsel that Mr. Partiyeli propose an alternative date for his client’s deposition, Mr. Partiyeli has refused to propose any date at all prior to the date of trial. Notably, Defendant and his counsel have not given any reason for the refusal to propose an alternative date during the week of January 16, 2023, instead filing boilerplate objections stating simply that they are “unavailable.” Nor has Defendant sought a protective order with respect to the deposition. (Jorgensen Decl., ¶¶ 8-12, and Exhs. F-H.) In light of Defendant’s and his counsel’s refusal to appear at the scheduled deposition, refusal, without explanation, to propose an alternative date prior to January 26 upon which the deposition can proceed, and notwithstanding Plaintiff’s counsel’s numerous attempts to meet and confer and multiple attempts to accommodate their schedule, Plaintiff felt left with no recourse but to seek an order compelling Defendant’s attendance.

Plaintiff provides that it properly and timely served Defendant with the deposition notice, Defendant did not serve any valid objection to the deposition notice, Defendant and his counsel have refused to meet and confer in good faith regarding a reasonable alternative date upon which Defendant will appear, and Defendant has failed to produce for inspection the documents described in the deposition notice. (Jorgensen Decl. ¶¶ 4-12.)

Accordingly, Plaintiff’s motion to compel is GRANTED.

Sanctions

Code of Civil Procedure section 2023.030 provides:  

The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. 

(Code of Civ. Proc. § 2023.030(a).) 

Sanctions are mandatory 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).)

Plaintiff noticed the deposition for Marcellus Ellis, and Defendant did not produce Mr. Ellis, causing Plaintiff to file the instant motion.

Here, the Court does not find that Plaintiff acted with substantial justification in failing to appear for the deposition. Defendant requests sanctions in the amount of $5,695.00 due to Plaintiff’s failure to appear at the deposition for 3.0 hours attempting to informally resolve the discovery dispute, 8.0 hours preparing the instant motion and ex parte motion, and 2.0 hours attending the hearing at a rate of $395.00, along with costs of $500.00 for the Court reporter and $60.00 for the filing fee. (Jorgensen Decl. ¶ 13.)  Given the lack of opposition and the simplicity of the motion, the Court finds the amount excessive.  The Court imposes sanctions in the reduced amount of $2,732.50 (5.5 hours at $395.00 per hour, plus $500.00 for the services of the court reporter and $60 for the filing fee) against Defendant Ellis and Counsel, jointly and severally, payable within 30 days.