Judge: Malcolm Mackey, Case: 21STCV45457, Date: 2023-04-27 Tentative Ruling

Case Number: 21STCV45457    Hearing Date: April 27, 2023    Dept: 55

PRECISION CONSTRUCTION GROUP, INC. v. ONNI CONTRACTING (CALIFORNIA), INC. ,                                                              21STCV45457

Hearing Date:  4/27/23,  Dept. 55.

#9:   MOTION TO COMPEL ATTENDANCE OF PRECISION CONSTRUCTION, INC. dba PRECISION CONCRETE AT DEPOSITION AND TO CONTINUE TRIAL.

Notice:  Okay

Opposition

MP:  Defendant

RP:  Plaintiff and Cross-Complainant, PRECISION CONSTRUCTION GROUP, INC.

Summary

On 12/14/21, Plaintiff filed a Complaint alleging that Plaintiff and Defendant entered into a written subcontract providing for Plaintiff to perform forming, concrete, shotcrete, rebar, and masonry work at the real property commonly known as 6933 Santa Monica Blvd., Los Angeles, but defendants interfered with the subcontract performance and caused a delay in the construction schedule.

The causes of action are:

1. BREACH OF WRITTEN CONTRACT;

2. GOODS, WARES AND MERCHANDISE SOLD AND DELIVERED;

3. OPEN BOOK ACCOUNT;

4. ACCOUNT STATED.

On 2/18/22, Defendant/Cross-Complainant filed a Cross-Complaint against Plaintiff/Cross-Defendant and others, alleging that Plaintiff/Cross-Defendant negligently, defectively and incompletely performed the subcontract and ultimately abandoned it.

Cross-Complainant’s causes of action are:

1. BREACH OF WRITTEN CONTRACT;

2. BREACH OF ORAL CONTRACT;

3. BREACH OF FIDUCIARY DUTY;

4. NEGLIGENCE;

5. CONTRACTUAL INDEMNITY;

6. UNFAIR BUSINESS PRACTICES;

7. DISGORGEMENT;

8. RECOVERY ON CONTRACTOR’S LICENSE BOND.

Trial date:  7/31/23.

MP Positions

Moving party requests an order compelling Plaintiff’s deposition, awarding monetary sanctions in the amount of $4,597.00 against Plaintiff and counsel of record, and continuing trial until 2/1/24 or after, on grounds including the following:

·         Plaintiff failed to appear at a duly noticed deposition scheduled on December 1, 2022, after Precision had specifically agreed to.

·         A trial continuance is needed for time to complete discovery.

RP Positions

Opposing party advocates denying, and imposing monetary sanctions against ONNI and its counsel in the amount of $2,360, for reasons including the following:

·         PRECISION's counsel was going to move for a protective order to prevent Mr. Sorrentino, as PRECISION's "Person Most Knowledgeable," from appearing in-person with counsel for a deposition, but it is no longer necessary.

·         Specifically, Mr. Sorrentino moved to Florida for more intensive medical treatments, and will consent to appear for his deposition virtually without his counsel being physically present in the same room as himself.  Because Mr. Sorrentino now lives in Florida, and his counsel lives in California, there is no possibility that Mr. Sorrentino's counsel will be in the same room as Mr. Sorrentino during the deposition.

·         The "person most qualified" at PRECISION is its president, responsible managing officer and CEO Jerry Sorrentino. Mr. Sorrentino currently suffers from Crohn's disease, which has compromised his immune system. Because of this condition, Mr. Sorrentino's health can be seriously compromised if he is in a room with three or more persons. 

Tentative Ruling

The motion is granted, except sanctions.

Commencing at 11:00 a.m. on 5/26/23, deponent, PRECISION's Person Most Knowledgeable shall attend a deposition by remote electronic means (e.g., CCP  § 2025.310).

Trial set for 7/31/23 is continued to June 3, 2024 at 9:00 a.m.

Final Status Conference is continued to May 24, 2024 at 8:30 a.m.

A motion lies to compel deposition attendance and document production, after service of a deposition notice, where a deponent fails to appear at, or proceed with, a deposition, without an applicable objection.  CCP §2025.450(a). 

The Court awards no sanctions, it finding substantial justification for some positions of each side.  Generally, monetary sanctions are mandatory as to parties losing discovery motions, unless courts find substantial justification or other injustice.  E.g.,  Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4^th 1542, 1557-58.  “ ‘[S]ubstantial justification” has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact.”  Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.

The grant of a continuance of trial to permit discovery is within the sound discretion of the trial Court, whose ruling will not be disturbed except upon a clear showing of abuse.  Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1175.