Judge: Malcolm Mackey, Case: 22STCV09937, Date: 2023-04-06 Tentative Ruling

Case Number: 22STCV09937    Hearing Date: April 6, 2023    Dept: 55

SHEPPARD v. GEN Z STUDIOS, LLC,                                                    22STCV09937

Hearing Date:  4/6/23,  Dept. 55.

#5:   MOTION TO COMPEL DEFENDANT JOSEPH LACKEY’S DEPOSITION AND RESPONSES TO DOCUMENT REQUESTS AT DEPOSITION; REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $13,269.65 AGAINST JOSEPH LACKEY AND HIS COUNSEL, JOHN FAGERHOLM.

Notice:  Okay

Opposition

MP:  Plaintiff

RP:  Defendant

Summary

On 3/22/22, Plaintiff SCARLET SHEPPARD filed a Complaint alleging that defendants wrongfully instituted a frivolous lawsuit against her, a former employee of defendants, for purposes of retaliating and preventing her from exercising her rights to freedom of speech and to petition the Court with a case for wrongful employment termination, and defendants ultimately dismissed their case.

The causes of action are:

1. WRONGFUL USE OF CIVIL PROCEEDINGS/ MALICIOUS PROSECUTION

2. ABUSE OF PROCESS.

MP Positions

Moving party requests an order compelling Defendant JOSEPH LACKEY’S deposition and responses to document requests at deposition, and imposing monetary sanctions in the amount of $13,269.65, plus additional specified in reply, on grounds including the following:

·         Defendant provided no deposition dates, and so Plaintiff noticed Defendant Lackey’s deposition for November 15 and 16.

·         Defendant’s counsel served an objection without reference to any grounds under the Code applicable to deposition unavailability, making the objection invalid.

·         Plaintiff’s Counsel went forward with the deposition and obtained a notice of non-appearance.

·         Defense counsel refused to stipulate to dates by order of court and pay costs incurred for the notices of non-appearance and bringing the motion.

·         The Court should treat the motion as unopposed.  The Court should disregard Defendant’s late-filed “Declaration of Counsel,” on grounds that a declaration standing alone does not constitute an opposition because fails to contain points and authorities in compliant with Cal. R. Ct., Rule 3.1113.

·         Plaintiff has incurred an additional $5,600 in attorney’s fees (7 hours x $800.00 per hour) in meet and confer efforts, taking a notice of non-appearance, reviewing the Declaration of Defendant’s Counsel, drafting the reply brief and supplemental declaration. Plaintiff also incurred an additional $519.65 in costs for the second notice of non-appearance, for a total of $6,116.65 in additional sanctions against Mr. Lackey in addition to the $13,269.35 requested in the moving papers against Defendant Lackey and his former Counsel, John Fagerholm, totaling: $19,386.

RP Positions

Opposing party advocates denying, on bases including the following:

·         Plaintiff rejected current counsel’s offered dates in April for the clients’ depositions.

·         Any sanctions should go against predecessor counsel.

Tentative Ruling

The motion is granted, except as to sanctions, the Court finding substantial justification for conferring about deposition dates. 

On Monday, April 17, 2023, commencing at 10:00 a.m., Defendant JOSEPH LACKEY shall attend a deposition at the LAW OFFICE OF PEGGY A. FARRELL APC, 2658 Griffith Park Blvd., #114, Los Angeles, CA 90039.         . 

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 having served a valid objection.  CCP §2025.450(a). 

No meet and confer is required to compel initial deposition attendance.  However, there must be a declaration showing that moving party inquired about the nonappearance.  CCP §2025.450(b)(2).   "Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue," including by rescheduling.  Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124.  See also L.A.S.C.L.R. 3.26, Appendix 3.A(e) (reasonable consideration should be given to accommodating schedules in setting depositions).

Decisions on whether to invoke California Rules of Court, Rule 3.1113 (requiring memoranda with “a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced…”), are reviewed under the abuse-of-discretion standard.  Quantum Cooking Concepts, Inc. v. LV Associates, Inc.  (2011) 197 Cal.App.4th 927, 932.  See also CRC Rule 3.1300(d) (judges have discretion to consider late-filed papers, and minutes or orders must indicate such decisions).

“If the party seeking a monetary sanction meets its burden of proof, the burden shifts to the opposing party attempting to avoid a monetary sanction to show that it acted with ‘substantial justification.’ ”  Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435.