Judge: Margaret L. Oldendorf, Case: 21AHCV00030, Date: 2023-01-24 Tentative Ruling
Case Number: 21AHCV00030 Hearing Date: January 24, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
| Plaintiff, vs. EDMUND LOUIE, an individual, et al, Defendants. And related cross-action. | ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) | [TENTATIVE] ORDER GRANTING LOUIE/KATANI’S MOTION TO COMPEL CHEUNG’S ATTENDANCE AT DEPOSITION AND FOR SANCTIONS Date: January 24, 2023 Time: 8:30 a.m. Dept.: P |
I. INTRODUCTION
This action stems from a boundary dispute between two neighboring properties in South Pasadena. James Cheung initiated this litigation by suing his next-door neighbors, Edmund Louie and Deborah Kotani. Louie and Kotani have a cross-complaint seeking quiet title and related claims. The litigation stems from a fence between the properties which has existed there for decades, but which encroaches on the Louie Property.
At issue is Louie and Katani’s motion to compel Cheung’s attendance at deposition. For the reasons that follow the motion is granted and sanctions are awarded.
II. LEGAL STANDARD
Code Civ. Proc. §2025.450 provides:
(a) 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.
. . .
(b)(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 that the petitioner has contacted the deponent to inquire about the nonappearance.
. . .
(g)(1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.
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III. ANALYSIS
Based on the evidence presented in the email communications attached to the Declaration of Ali Vaqar, the following is the series of events giving rise to this motion:
On November 3, 2022, Louie/Katani served Cheung with a notice of deposition, setting the deposition for November 17, 2022. On November 9, 2022, Cheung emailed requesting that the deposition be rescheduled due to his unavailability.
On November 16, 2022, Louie/Katani served Cheung a notice of continuance of the deposition to December 2, 2022.
On November 29, 2022, Cheung emailed requesting that his deposition be continued to January as he had a conflict on December 2, 2022. Louie/Katani’s counsel responded that if Cheung could provide a deposition date prior to December 23, 2022 the deposition would be continued; but otherwise it would not. Cheung did not provide such a date. Cheung repeated his request that the deposition be continued to January.
On December 2, 2022, Cheung failed to appear for his deposition.
An affidavit of non-appearance was taken by the court reporter. The court reporter invoiced $550 for this. The transcript of the non-appearance reflect that Louie and Katani’s counsel attempted to contact him by telephone to inquire about his failure to appear. He was unable to contact Cheung. (Exh. 5 to the Motion, p. 3, lines 6-11.)
Cheung opposes the motion in part by accusing Louie and Katani of improperly going forward with the deposition knowing he would not be there. But Cheung did not timely object to the deposition notice. He waited until the late afternoon of November 29, 2022, to send an email requesting an alternate date. To the extent this may be considered an objection, it at least needed to be served by personal service, as it was a mere three days prior to the December 2, 2022 deposition date. Code Civ. Proc. §2025.410(b). Moreover, Cheung failed to provide an alternative date in the month of December, as opposing counsel reasonably requested. Under these circumstances, Louie and Katani were authorized to move forward with the deposition, take an affidavit of non-appearance, and seek an order compelling Cheung’s attendance.
Louie and Katani are also entitled to a monetary sanction for the cost of the non-appearance, and this motion. According to the Declaration of Ali Vaqar, this motion required or will require a total of 4.5 hours. This is a reasonable number of hours. The Court also finds counsel’s $265 hourly rate to be reasonable. That would amount to fees of $1,192.50 but all that is requested is $662.50. Adding to that the cost of filing ($60) and the non-appearance fee ($550), the total sanction is $1,272.50. Cheung argues there is no evidence of the $550 fee. This is incorrect. The declaration of counsel establishes this fact. Though not required to do so, counsel provides a copy of the invoice with the reply brief.
IV. CONCLUSION
The motion to compel the deposition is granted. Plaintiff James Cheung is ordered to appear for deposition at a mutually agreeable time within the next 20 days. Cheung is further ordered to pay a monetary sanction of $1,272.50 to Louie and Katani within 30 days.
Moving parties are ordered to give notice.
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE OF THE SUPERIOR COURT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
vs.
EDMUND
And
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[TENTATIVE]
Date: January Time: 8:30 a.m. Dept.: P |
I. INTRODUCTION
This action stems from a boundary
dispute between two neighboring properties in South Pasadena. The litigation
stems from a fence between the properties which has existed there for decades
but which encroaches on the Louie Property. Cheung sued for quite title,
trespass, and related claim; Louie and Kotani cross-complained with similar
claims. The cross-complaint also names Tiffany Chiu Yuk Leung, Randall Leung,
and Darin Tung Choi Leung, who are on title to the property with Cheung. For clarity
(and with no disrespect intended), these cross-defendants are referred to by
their first names.
At issue are Louie and Kotani’s
motions to compel responses to Form Interrogatories, Set Two, served on Cheung,
Tiffany, Randall, and Darin. While these motions were pending, all
cross-defendants served responses. Those responses are largely deficient. The
motions to compel are therefore granted. Monetary sanctions are awarded in
connection with each of the motions for the time and expense incurred by moving
parties in obtaining this relief.
II. LEGAL
STANDARD
Code Civ. Proc. §2030.220 mandates that responses to
interrogatories, (a) be as complete and straightforward as the information
reasonably available to the responding party permits, (b) if it cannot be
answered completely, it shall be answered to the extent possible, and (c) if
the responding party does not have personal knowledge sufficient to respond
fully to an interrogatory, that party shall so state, but shall make a reasonable
and good faith effort to obtain the information by inquiry to other natural
persons or organizations, except where the information is equally available to
the propounding party.
Code Civ. Proc. §2030.290 provides that if a party to
whom interrogatories are directed fails to serve a timely response, that party
waives any right to object and the party propounding the interrogatories may
move for an order compelling responses. The statute further provides that the
court shall impose a monetary sanction against any person, party, or attorney
who unsuccessfully makes or opposes a motion to compel responses, unless it
finds that the one subject to sanctions acted with substantial justification or
that other circumstances make imposition of the sanction unjust.
Untimely discovery responses do not divest a trial court
of the authority to compel responses. Sinaiko Healthcare Consulting, Inc. v.
Pacificare Healthcare Consultants (2007) 148 Cal.App.4th 390, 405-406.
III. ANALYSIS
The undisputed evidence establishes that Cheung, Tiffany,
Randall, and Darin all failed to timely provide responses to the Form
Interrogatories, Set Two, served on them by Louie and Kotani. These sets of
interrogatories were propounded in conjunction with Requests for Admission, Set
One. They consist only of Form
Interrogatory 17.1, which requests facts as to any RFAs not admitted.
Cross-defendants Tiffany, Randall, and Darin filed a
joint opposition indicating that they served responses while this motion was
pending. This evidence, in the form of a proof of service, only demonstrates that
responses were served, not that they are verified or without objection. Cheung filed a similar opposition. As with the
other cross-defendants, the only evidence Cheung provides is a proof of service
of the purported responses.
Louie and Kotani have filed reply briefs stating that the
responses to the Form Interrogatories are deficient. They attach copies of the responses.
The
interrogatory at issue contains the following language:
17.1
Is your response to each request for admission served with these
interrogatories an unqualified admission? If not, for each response that is not an
unqualified admission:
(a) state the number of the request;
(b) state all facts upon which you base your response;
(c) state the names, ADDRESSES, and telephone numbers of
all PERSONS who have knowledge of those facts; and
(d) identify all DOCUMENTS and other tangible things that
support your response and state the name, ADDRESS, and telephone number of the
PERSON who has each DOCUMENT or thing.
In response to subpart (b), Cross-Defendants answered:
“Any and all of the facts contained in the Verified
Pleadings filed in this matter that have already been filed and served on the
Propounding Party and that are readily available for inspection and review by
the Propounding Party.”
This is an insufficient response as it does not identify
the specific facts pertaining to the specific RFA to which it correlates.
The
same is true as to the response to subpart (d):
“Any and all of the documents referred to and identified in the Verified
Pleadings filed in this matter that have already been served on the Propounding
Party and that are readily available for inspection and review by the
Propounding Party.” The specific documents that pertain to the RFA at issue must
be identified.
As
to subpart (c), all Cross-Defendants identify Cheung as the one with knowledge
of these facts. If he is the only one with knowledge of the facts, then this is
a sufficient response to this subpart.
Based on the undisputed evidence that Cross-Defendants
failed to timely serve responses, and that the response that were served do not
conform to the requirements of Code Civ. Proc. §2030.220, the motions are
granted.
Moving parties Louie and Kotani are entitled to a
monetary sanction for the cost of having to bring these four motions. Counsel
for Tiffany, Randall, and Darin urges that sanctions are not warranted as to
his clients, because he either overlooked the discovery when it was served or
it went to a spam folder. Specifically, Mr. Farkas states that he first became
aware of the discovery on December 13, 2022, when Louie and Kotani filed their
reply to the motions to deem matters admitted. He states by that time the link
in the email no longer worked. Louie and Kotani dispute this in their reply,
stating that the link is still active today. Even if it had been a stale link,
what Mr. Farkas does not say is what steps he took after learning of
this outstanding discovery to have it re-served. He also does not state that he
contacted Louie and Kotani’s counsel to discuss it, or to request that the
discovery be re-served. More than a month went by before these motions to
compel were served, during which time he could have communicated with counsel
and avoided the need for these motions.
According to the declarations of Ali Vaqar that accompany
each motion, 1.5 hours was spent drafting the motion as to Cheung, and only .5
as to the other three cross-defendants. This is a reasonable amount of time for
drafting the motions. Vaqar further states that 2 hours will be spent drafting
a reply and appearing at the Cheung motion; only 1.5 hours is required to draft
the other replies and the time for appearing is not counted again with respect
to the other motions. At counsel’s reasonable hourly rate of $265, the requested
sanctions are granted in full.
IV. CONCLUSION
Cross-Complainants’
motion to compel Cross-Defendant Cheung to provide responses to Form
Interrogatories, Set Two, is granted. Cheung is ordered to provide verified
responses without objection within 15 days. Cheung is further ordered to pay a
monetary sanction of $987.50 [3.5 x $265/hour ($927.50) + $60 = $987.50] within
30 days.
Cross-Complainants’ motion to compel Cross-Defendant Tiffany Chiu Yuk Leung to provide responses
to Form Interrogatories, Set Two, is granted. Tiffany is ordered to provide
verified responses without objection within 15 days. Tiffany is further ordered
to pay a monetary sanction of $590 [2 x $265/hour ($530) + 60 = $590] within 30
days.
Cross-Complainants’ motion to compel Cross-Defendant
Randall Leung to provide responses to
Form Interrogatories, Set Two, is granted. Randall is ordered to provide
verified responses without objection within 15 days. Randall is further ordered
to pay a monetary sanction of $590 [2 x $265/hour ($530) + 60 = $590] within 30
days.
Cross-Complainants’ motion to compel Cross-Defendant Darin Tung Choi Leung to provide responses to
Form Interrogatories, Set Two, is granted. Darin is ordered to provide verified
responses without objection within 15 days. Darin is further ordered to pay a
monetary sanction of $590 [2 x $265/hour ($530) + 60 = $590] within 30 days.
Moving parties are ordered to give notice.
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE
OF THE SUPERIOR COURT