Judge: Lisa R. Jaskol, Case: 20STCV32493, Date: 2023-11-13 Tentative Ruling
Case Number: 20STCV32493 Hearing Date: November 13, 2023 Dept: 28
Having considered the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On August 25, 2020, Plaintiff Chu Shin Kim (“Plaintiff”) filed this action against Defendants Rodrick Wayne Moore, Jr. (“Moore”), Jane Wade Rosie (“Rosie”), and Does 1-10 for negligence and negligent entrustment.
On October 16, 2020, Moore and Rosie (“Defendants”) filed an answer.
On April 27, 2023, Moore filed a motion for a protective order (1) requiring that his deposition testimony be kept confidential, (2) precluding the use of Moore’s deposition testimony for any purpose other than in connection with this lawsuit, (3) precluding the disclosure and dissemination of Moore’s deposition testimony to any third party not affiliated with this litigation, including but not limited to print and online media organizations and tabloids, (4) requiring that Moore’s deposition testimony and information obtained at his deposition be appropriately protected from public disclosure and filed under seal, and (5) ordering other protective measures that the Court deemed appropriate. The motion was set for hearing on July 18, 2023.
On June 13, 2023, Plaintiff filed a motion to compel Defendants’ depositions and for evidentiary and monetary sanctions, to be heard on November 13, 2023.
On July 17, 2023, Moore filed a notice that he had taken his motion for a protective order off calendar.
On October 31, 2023, Defendants filed an opposition to the motion to compel their depositions. On November 7, 2023, Plaintiff filed a reply.
Trial is currently scheduled for December 7, 2023.
PARTIES’ REQUESTS
Plaintiff requests that the Court compel Defendants to appear for their depositions within 10 days of the hearing on the motion. Plaintiff also requests that the Court impose monetary and evidentiary sanctions on Moore.
Defendants request that the Court deny the motion.
LEGAL STANDARD
“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).)
A motion under Code of Civil Procedure section 2025.450, subdivision (a), shall comply with both of the following: "(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b).)
Code of Civil Procedure section 2025.450, subdivision (g)(1), provides that if a motion made under 2025.450 is granted, the court shall impose a monetary sanction 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 of Civil Procedure section 2023.030 provides in part:
“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:
“(a) 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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. 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.
“(b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.
“(c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. . . .”
(Code Civ. Proc., § 2023.030, subds. (a), (b), (c).)
Misuse of the discovery process includes "[f]ailing to respond or to submit to an authorized method of discovery" and "[m]aking or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (h).)
DISCUSSION
A. Plaintiff’s motion and reply papers
On July 28, 2022, Plaintiff noticed Moore’s deposition for August 15, 2022. On August 12, 2022, Defendants’ counsel informed Plaintiff that counsel had not been able to contact Moore. The parties agreed to take the deposition off calendar until counsel could speak to Moore. Plaintiff sent five additional emails over the following month requesting dates when Moore would be available for deposition. On September 14, 2022, Defendants’ counsel informed Plaintiff that counsel would provide dates for Moore’s deposition within the next 60 days. On September 22, 2022, Defendants’ counsel requested dates in December and January to set Moore’s deposition. Plaintiff immediately provided dates for those months that did not work for counsel.
Over the following two months, Plaintiff sent ten emails requesting a date for Moore’s deposition but did not receive a response. Plaintiff therefore noticed Moore’s deposition for February 8, 2023.
On February 7, 2023, the day before the deposition, Defendants’ counsel sent an email requesting a stipulation to a protective order for Moore’s deposition and refusing to move forward unless Plaintiff agreed. Seeing the request as a delay tactic, Plaintiff’s counsel refused. Plaintiff could not cancel the court reporter for the February 8 deposition without incurring fees. Plaintiff incurred $460.00 in costs and took a certificate of non-appearance.
On February 16, 2023, Plaintiff’s counsel again requested dates for Moore’s deposition. Defendants’ counsel replied that she was drafting a motion for protective order and once the hearing date was reserved she would provide dates for Moore’s deposition.
Plaintiff continued to follow up seeking dates for Moore’s deposition and the status of the motion for protective order but did not receive a response.
On April 14, 2023, Plaintiff served a third deposition notice for Moore’s deposition, scheduling it on April 28, 2023. On April 25, 2023, Defendants’ counsel sent a meet and confer letter regarding the protective order.
On April 27, 2023, the day before the scheduled deposition, Moore filed a motion for a protective order. It was too late for Plaintiff’s counsel to cancel the court reporter without incurring any fees. Plaintiff incurred $575.00 in costs and took a certificate of nonappearance.
On May 11, 2023, Plaintiff agreed to the protective order as long as both Defendants were produced for a deposition within 30 days. On May 19, 2023, Defense counsel replied that she “should be able to produce my two clients for deposition promptly. I will prepare the protective order and send it to you for signature and filing. I will get [Defendants’] availability and forward it to you.”
On May 28, 2023, having received no deposition dates from Defendants, Plaintiff served a fourth deposition notice for Moore and a first deposition notice for Rosie, scheduling both Defendants’ depositions for June 8, 2023. Defendants’ counsel did not acknowledge the notices, so Plaintiff sent multiple follow-up emails. On June 7, 2023, Defendants’ counsel responded, saying she was not aware of the pending depositions. Defendants did not appear for their scheduled depositions on June 8, 2023.
Again, Plaintiff requested available dates for Defendants’ depositions.
On June 27, 2023, Defense counsel advised that she would take the motion for protective order off calendar and that she would “forward the LASC form stipulating to the protective order to you for signature.”
Defendants had not provided deposition dates by the time Plaintiff filed this motion on June 13, 2023.
As of November 7, 2023, Defendants’ counsel had not sent Plaintiff’s counsel the stipulated protective order for counsel’s signature.
B. Defendants’ opposition
Defendants argue that Moore’s deposition was not scheduled before Plaintiff filed this motion because Plaintiff’s counsel would not agree that the deposition transcript and/or video could not be used for advertising, social media posts and public dissemination. According to Defendants, Moore’s deposition could not take place without a stipulation or protective order because he is a celebrity and public figure.
Defendants acknowledge that Plaintiff’s counsel agreed to stipulate to a protective order. However, Defendants assert that the parties have not signed a stipulated protective order. Defendants also argue that Plaintiff did not engage in sufficient meet and confer efforts before filing the motion to compel.
C. Analysis
1. Motion to compel
Defendants did not raise the issue of a protective order until six months after Plaintiff initially noticed Moore’s deposition. During those six months, Defendants’ counsel promised to provide dates for Moore’s deposition and never mentioned the need for a protective order.
Defendants concede that Plaintiff’s counsel agreed to stipulate to a protective order. Presumably based on counsel’s agreement, Moore took his motion for a protective order off calendar on July 17, 2023. Yet Defendants have still not provided any dates for Moore’s deposition.
Defendants’ counsel states in her declaration that she will produce her clients for deposition once Plaintiff’s counsel signs the stipulated protective order. However, despite promising on June 27, 2023 to send counsel the order, Defendants’ counsel has not sent Plaintiff’s counsel the stipulated protective order for counsel’s signature.
Defendants’ argument that Plaintiff failed to meet and confer is meritless. The record shows that Plaintiff made repeated meet and confer attempts.
The Court finds good cause to grant the motion to compel Moore’s deposition. Moore failed to appear for three scheduled depositions (February 8, 2023, April 28, 2023, June 8, 2023) without having served timely objections.
The Court finds good cause to grant the motion to compel Rosie’s deposition. Rosie failed to appear for a scheduled deposition on June 8, 2023 without having served a timely objection.
2. Request for sanctions
Plaintiff requests $3,435.00 in monetary sanctions against Moore. Plaintiff’s counsel spent 6 hours preparing the motion and anticipated spending 6 hours reviewing Moore’s opposition, preparing a reply, and attending the hearing. Plaintiff’s counsel’s professional rate for legal work is $400.00 per hour. Plaintiff is seeking compensation only for 6 hours of work for a total of $2,400.00, along with the $1,035.00 in court reporter costs. Plaintiff’s counsel’s declaration also requests $60 for the motion filing fee and $15 for Court Connect fees. (Plaintiff is not seeking sanctions against Rosie.)
The Court awards sanctions $2,125 based on 4 hours of attorney work at a reasonable rate of $250.00 per hour, court reporter costs, and the filing fee.
The Court denies Plaintiff’s request for evidentiary sanctions.
CONCLUSION
The Court GRANTS Plaintiff Chu Shin Kim’s motion to compel the depositions of Defendants Rodrick Wayne Moore, Jr. and Jane Wade Rosie. Defendants are ordered to appear for depositions within 30 days of the hearing on this motion.
The Court GRANTS Plaintiff Chu Shin Kim’s request for sanctions. Defendant Rodrick Wayne Moore, Jr. and his counsel are ordered to pay Plaintiff $2,125.00 in sanctions within 30 days of the hearing on the motion.
The Court DENIES Plaintiff Chu Shin Kim’s request for evidentiary sanctions.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.